Disclosure Requirements - France
Disclosure Category 1
In the case of holdings in registered and bearer securities, Clearstream Banking is under an obligation, under Articles L.228-2 and L.228-3 of the French Commercial Code, to disclose the identity and holdings of customers holding applicable positions.
In order to comply with the legislation as mentioned below, customers entering into transactions in the French domestic market consent and are hereby deemed to consent to disclosure and to the appointment of the requestor (for example, the listed company or its agent) as their attorney-in-fact, under power of attorney to collect from Clearstream Banking such information as is required to be disclosed.
As per Article L.228-1 of the French Commercial Code and in the scope of the French Registered Securities, when those securities are qualified as Valeurs Essentiellement Nominatives – VENs, there is an obligation for French resident holders of such securities to be duly registered and known by the issuer or registrar.
Failure to comply with this obligation may result in sanctions described in below Sanctions paragraph.
There are, under French law and the by-laws of French companies, a number of ownership restrictions applicable to French equities and to public tender offers. See also the section on holding restrictions in the Market Profile (France).
Customers are advised that local laws and regulations (for example Companies Act Law no. 2001-420 of 15 May 2001, Article 119) may require Clearstream Banking or its depository to disclose securities trading and holding information and details of beneficial ownership with respect to Clearstream Banking’s securities account.
Directive (EU) 2017/828 of 17 May 2017 amending Directive 2007/36/EC with regard to the encouragement of long-term shareholder engagement (the second shareholder’s rights directive “SRD II”) has been partially transposed via Décret n° 2019-1235 dated 27 November 2019 (SDR II Law).The French transposition is still considered a partial one because there are still some points that have not been taken into account in the French transposition that are currently being discussed between the AFTI and the French government. The two texts in the French law that currently do not cover all SRD II requirements are:
- Law n° 2019-486 dated 22 May 2019 related to the growth and transformation of companies.
- Ordonnance n° 2019-1234 dated 27 November 2019 related to the remuneration of the Board of Directors of listed companies.
Background and legal basis
In relation to bearer securities (Article L.228-2 of the French Commercial Code), the bylaws of an issuer may provide that such issuer is entitled at any time to require from the Central Securities Depository (CSD - Euroclear France) the name, nationality, date of incorporation or birth and address of the holders of securities in bearer form. Euroclear France will obtain the relevant information from such holders’ custodian. The relevant custodian must answer within 10 business days following Euroclear France’s request and Euroclear France must in turn transmit such information to the issuer within five business days of receipt.
Upon obtaining such information in relation to the holders of securities, the issuer is entitled to further require similar information with respect to the beneficial owners of the securities either from the CSD or directly from the registered intermediary as provided for in Article L. 228-1 (in which case, the registered intermediary must provide the answer either directly to the issuer or to its custodian, which must in turn provide the information to the issuer).
In relation to registered securities (Article L.228-3), upon the request of the issuer or of the issuer’s representative, the registered intermediary must disclose the identity of the beneficial owners for which it holds securities in nominative form. The registered intermediary must respond to the issuer (or to its agent) within 10 business days of such request being made.
For both bearer and registered securities (Article L.228-3-1), in the event that the issuer believes that the information received relates to a person or entity that is merely holding securities on behalf of a third party, the issuer is entitled to require such person or entity to disclose the identity of the beneficial owner.
The applicable legislation is as follows:
- Articles L.228-1, L. 228-2 and L. 228-3 of the French Commercial Code (specifically in relation to the identification of the holders of securities);
- Law no. 2001-420 relating to the new economic regulations of 15 May 2001, Article 119 (Chapter VI - Identification of shareholders), which provides that the owner of securities may be represented by a registered intermediary.
Failure to comply with Articles L.228-1 and L.228-2 to L. 228-3-1 of the French Commercial Code (that is, where information about beneficial owners required pursuant to these articles has not been provided before the prescribed deadlines or is not exhaustive or accurate), may result in the suspension of voting and dividend rights with respect to the relevant securities for up to five years (Article L.228-3-3).
“If the person who is the subject of a request pursuant to Articles L.228-2 to L.228-3-1 has failed to provide the information within the time limits stipulated in those articles or has provided incomplete or erroneous information regarding his own status or the owners of the securities or the number of securities held by each of them, the shares or securities giving immediate or eventual access to the capital relative to which the said person is registered are stripped of voting rights for any meeting of shareholders held prior to the date on which the identification information is corrected, and payment of the corresponding dividend is deferred until that date.
“Moreover, in the event of the registered person deliberately failing to apply the provisions of Articles L.228-1 to L.228-3-1, the court having jurisdiction at the place where the company has its registered office may, at the request of the company or of one or more shareholders holding at least 5% of the capital, order the total or partial suspension of the voting rights attached to the shares to which the order relates for a total period not exceeding five years, and deferral of the corresponding dividend payment for the same period.”
Obligation to report threshold crossings
For the acquisition or sale of company capital or voting rights of 5%, 10%, 15%, 20%, 25%, or 33⅓%, 50%, or 66⅔%, 90% and 95%, the beneficial owner must make a declaration to the company concerned and to the “Autorité des Marchés Financiers” (AMF) simultaneously within five trading days of crossing the threshold. The obligation therefore falls on the beneficial owner.
The local regulator (that is, the AMF) may request Clearstream Banking or its French agent to disclose the shareholder’s identity in the case of non-respect of the requirement to report the crossing of the above-mentioned thresholds.
The basis for disclosure is Article L. 233-7 of the French Commercial Code (in relation to the significant acquisition or sale of shares in listed companies).
Failure to comply with Article L.233-7 of the French Commercial Code results in the following sanctions (Article L. 233-14).
Article L. 233-14:
“If they have not been properly declared as stipulated in I and II of Article L233-7, shares in excess of the fraction which should have been declared, when they are admitted to trading on a regulated market or a financial instruments market which permits trading in shares which may be entered in the books of an authorised intermediary as provided for in Article L211-4 of the Monetary and Financial Code, are stripped of the voting right for any shareholders' meeting held within two years of the date of effective notification.
“In the same circumstances, the voting rights attached to those shares which have not been properly declared cannot be exercised or delegated by the defaulting shareholder.
“A shareholder who has not made the declaration referred to in VII of Article L.233-7 is stripped of the voting rights attached to the securities exceeding the fraction of one tenth or one fifth referred to in that same paragraph for any shareholders' meeting held within two years of the date of effective notification.
“The commercial court having jurisdiction at the place where the company has its registered office may, having sought the opinion of the public prosecutor, and at the request of the company's chairman, a shareholder or the Financial Markets Authority, order a total or partial suspension of voting rights, for a period not exceeding five years, against any shareholder who has not made the declarations referred to in Article L.233-7 or who failed to respect the content of the declaration referred to in VII of that same article during the twelve-month period following its publication as stipulated in the General Regulations of the Financial Markets Authority.”
Moreover, apart from these civil sanctions, Article L.247-2, Paragraph 1 of the French Commercial Code provides that the individuals and the directors or members of the supervisory board of an entity that have voluntarily not fulfilled the requirements of Article L.233-7 of the French Commercial Code may be liable to a fine of up to EUR 18,000.
Shareholder identification as set out in the SRD II Law
The SRD II Law provides for the right for issuers to identify their shareholders.
Issuers can request intermediaries at each level of a custody chain to promptly provide relevant information to facilitate such identification.
In accordance with the SDR II Law as amended, an intermediary (in this case, Clearstream Banking) shall, upon receipt of the shareholder identification disclosure request, transmit a similar request to the next intermediaries in the custody chain (that is, Clearstream Banking customers with holdings in the requested securities). A response to the shareholder identification disclosure request shall be sent by every intermediary in the custody chain directly to the recipient's address defined in the request and without delay. Clearstream Banking will generate the response as required, with information regarding the shareholder's identity, limited to Clearstream Banking books only.