Monitoring Committee Corporate Governance

New disclosure requirements in the Netherlands

On 27 November 2012 a bill was published introducing new disclosure requirements. These requirements are expected to take effect on 1 January 2013. The requirements are based on an advice of the Monitoring Committee Corporate Governance Code. The bill includes inter alia an additional threshold for substantial holdings, an obligation to disclose the gross short position and a system to establish the identity of shareholders of a company listed in the Netherlands.

The bill brings changes to the Financial Supervision Act (Wet op het financieel toezicht), the Securities Giro Transfer Act (Wet Giraal Effectenverkeer) and the Dutch Civil Code (Burgerlijk Wetboek). Among the most significant changes are the following.

Additional threshold

An additional threshold for substantial holdings of 3% has been introduced. The first threshold has thereby decreased from 5% to 3%. As a result, any person whose percentage of voting or capital interest in a N.V. listed on a regulated market or a non-EU company listed on a regulated market in the Netherlands (directly or indirectly) reaches, exceeds or falls below the thresholds of 3%, 5%, 10%, 15%, 20%, 25%, 30%, 40%, 50%, 60%, 75% or 95% must notify the Authority for Financial Markets (Autoriteit Financiële Markten) without delay.

A shareholder who has a voting or capital interest between 3% and 5% must notify the Authority for Financial Markets of this interest within four weeks after date that the bill entered into force.

Notification requirement gross short position

The bill introduces the obligation to notify gross short positions. Any person who has obtained or lost the disposal of financial instruments which have a short position with respect to the shares represented, must notify the Authority for Financial Markets without delay if the short position, expressed as a percentage of the capital, reaches, exceeds or falls below the above mentioned thresholds.

Identification of shareholders

Companies with a listing on a regulated market or multilateral trading facility in the Netherlands (e.g. Euronext Amsterdam by NYSE Euronext and Alternext Amsterdam) will be able to establish the identity of their shareholders. The companies may make an identification request to Euroclear Nederland, associated institutions, brokers, institutions abroad and management companies of investment institutions prior to a general or extraordinary meeting. The information request will not apply to shareholders with an interest of less than 0.05% of the issued share capital. The companies are also required to establish the identity of their shareholders in the event that a shareholder holding at least 10% of the issued share capital requests for this identification.

Information to shareholders

A shareholder who alone or jointly with other shareholders holds at least 1% of the issued share capital or who is entitled to an amount of shares or depositary receipt with a total value of at least € 250,000 is entitled to request the company to share certain information with other shareholders. The information has to be related to a topic that is on the agenda of the general meeting. The company is obliged to send the information with the greatest speed, but at least within three working days, or place the information on the website of the company. The company is not always obliged to provide the shareholder with the requested information. If the information sends out an incorrect or misleading signal or if it is not reasonable to expect the company to release certain information, the company is entitled to withhold it.

Increase of the threshold for shareholders to place items on the agenda

The threshold for placing items on the agenda of a general meeting of a N.V. will increase from 1% to 3%. The increased threshold will only apply if the company wishes to do so and the articles of association of the N.V. are modified in that respect. In addition, the existing option for shareholders with shares representing a market value of at least EUR 50 million to propose agenda items will lapse.