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Bill implementing the amended Prospectus Directive
The Minister of Finance has submitted a Bill to parliament implementing requirements arising from the revised Prospectus Directive. To meet the Directive's deadline, the Bill will have to take effect by 1 July 2012.
The Bill's main features are:
- The exemption from the requirement to prepare a prospectus will apply to offers with a minimum denomination of EUR 100,000 per investor or per unit. The current limit is EUR 50,000. The threshold for dispensation under the Transparency Directive will also be raised to EUR 100,000.
- The requirement to produce a prospectus will not apply if the offer is directed at fewer than 150 persons per member state, none of whom are qualified investors. The current threshold is 100 persons.
- Clarification that the exception for offers with a total value of less than EUR 100,000 concerns the total value in the EEA.
- The exception to an obligation to produce a prospectus for offers to employees will be extended to (i) securities of issuing institutions with a head office or registered office in the EEA, and (ii) securities that are admitted to trading on a market outside the EEA.
- The definition of "qualified investor" will match the definition of professional client under the MiFID.
- Removal of the obligation to annually publish an information document.
- The requirements for the summary have been specified. The European Commission may expand the requirements for the contents and lay out of the summary.
- The prospectus will be deemed to be available to the public if it has been placed on the website of the issuing institution or the website of the financial intermediaries.
Offers of securities to the public currently fall outside the scope of the Prospectus Directive if the total value of the offer is less than EUR 2.5 million. Whereas the amended Prospectus Directive provides for the option to raise this threshold to EUR 5 million, the Bill maintains the current threshold of EUR 2.5 million. In the explanation to the Bill, the Minister of Finance has stated that an increase of the threshold is undesirable as it would cause the number of unsupervised securities offers to increase.
The Bill remedies two omissions. Firstly, the Bill requires that the prospectus identifies the person responsible for the prospectus. This requirement was incorrectly omitted from earlier implementing legislation. Secondly, the FMSA does not include the exemption for offers of securities already admitted to trading on a regulated market situated or operating in the Netherlands. This omission will also be rectified.
Second Chamber approves implementation of Bill aimed at simplifying and extending flexibility of private company law
In addition to transitional and tax provisions, the proposed implementation bill also makes a few substantive changes to the original bill on simplification and greater flexibility of private company law.
One of these changes concerns payment of interim dividend, for example in the situation of a group company. In the original bill, the decision to pay dividend payments was linked to the most recently adopted annual accounts. This link has now been removed. The company can decide which document will form the basis for considering the dividend payment.
The debate on the implementation bill has also addressed the managing board's assessment when paying dividends. The key is what the managing board knows or ought to know at the time of payment; the managing board can be expected to look no more than one year ahead where it concerns information that should be part of its decision to pay dividend. If the company decides that the books show sufficient shareholders' equity for a dividend payment, the dividend test has been met and no external experts need to be involved
The bill will next be discussed in the First Chamber.
Trust offices – changes in legislation
To reduce the risk of money laundering through services provided to the Netherlands by unregulated foreign trust offices, these services will be brought within the scope of the Trust Offices Supervision Act. As a result, so-called virtual trust offices will be prohibited from offering services to the Netherlands (so-called cross border offering of services) without a licence.
Mediation in connection with the sale of legal entities will also become a service subject to supervision under this Act.
The changes are expected to come into force on 1 January 2012.
Anti-bribery guidelines
The Public Prosecution Service has issued two sets of guidelines on the investigation and prosecution of corruption in the Netherlands. Both guidelines took effect on 1 August 2011 and underline an increased focus on tackling corrupt practices in the Netherlands. The Public Prosecutions Service has appointed a specialised public prosecutor to prosecute corrupt practices in accordance with these guidelines.
Bribery of public officials in the Netherlands
The guidelines describe factors relevant in detecting and prosecuting bribery of public officials in the Netherlands. For instance, in determining whether a gift constitutes criminal conduct several factors should be considered, including the degree to which the public official could know that his actions were prohibited and whether the gift was of an incidental nature.
Bribery of public officials abroad
Bribery of a Dutch public official by a foreigner and bribery of a foreign public official by a Dutch national are both prohibited in the Netherlands. The guidelines include jurisdiction-related matters and the relevant factors in deciding whether to prosecute corrupt practices involving foreign officials. Factors that are considered relevant in deciding not to prosecute, include that the payment does not have any anti-competitive effect or the gift is entered in the company's books and records in a transparent manner and is not concealed.
As from 1 April 2010, the fine for bribing public officials is raised from category 4 to category 5. Furthermore, bribery is a criminal offence for which a confiscation claim can be instituted. The assumption is that confiscation will be sought when the advantage obtained has been estimated at a minimum amount of EUR 500.