Disclosure Requirements – Netherlands
Disclosure Category 1
For holdings in Dutch listed companies and foreign companies with a listing on a Dutch stock market or multilateral trading facility ("Eligible Issuers"), Clearstream Banking is under an obligation, under the Corporate Governance Act passed on 13 November 2012 by the upper house of the Dutch parliament with effect on 1 July 2013, to disclose the identity and holdings of the final beneficial owner.
Consent
In order to comply with the legislation as mentioned below, clients entering into transactions in the Dutch domestic market, consent and are hereby deemed to consent to disclosure at the request of and to the issuer or its agent bank, the names, emails and addresses of the final beneficial owners together with details of their positions as described below.
In addition, the aforesaid clients hereby give power of attorney to Clearstream Banking to provide to our depository, Clearstream Banking AG, Frankfurt (CBF) as defined in the Market Link Guide or to our asset servicer BNP Paribas S.A. or, as the case may be, to the Eligible Issuer or its agent all the required information as per the Corporate Governance Act. This power of attorney is limited to the information which disclosure is mandatory under Dutch law and with respect to transactions on equities of Eligible Issuers ("Eligible Securities").
Disclosure requirements
There are, under Dutch law and the by-laws of Eligible Issuers, a number of ownership restrictions applicable to Eligible Securities.
Clients are advised that local laws and regulations (for example the Corporate Governance Act and the Act on the Identification of Investors) may require Clearstream Banking or its depository to disclose holding information and details of beneficial ownership with respect to the Eligible Securities held with Clearstream Banking's securities account.
Shareholders identification is mandatory as follows:
Identification request: The Corporate Governance Act entitled the Eligible Issuers to identify final beneficial having a capital interest of at least 0.5% of the outstanding share capital of the Eligible Issuers. In the run-up to its annual or extraordinary general meeting of shareholders, a company or its agent bank may request Euroclear Nederland and its member institutions and other intermediaries to provide the names, email and addresses of those investors from whom they administer the Eligible Securities (or depositary receipts for shares) together with details of their position. The Eligible Issuer or its agent bank can than proceed through the entire chain of custody until the last link, the investor, is identified.
Procedure: The company must submit the request within a 60 days period preceding the said general meeting of shareholders. The bank or other institutions to which the identification request is made must reply within three working days after the receipt of the request, and if possible supply the requested information. If no reply is forthcoming, the company may apply to a district court for an order directing compliance.
Mandatory fields of the information requested: (done by the Eligible Issuer or its agent):
- ISIN identification of the underlying security;
- Number of shares (greater than or equal to 0.5% of the outstanding share capital);
- Name of the entity addressing the disclosure of information request (the issuer or issuer agent);
- Date of disclosure;
- Address of the entity addressing the disclosure of information request (email address);
- Deadline of disclosure.
Details of the shareholder (final beneficial owner), delivery information (to be disclosed by the shareholder):
- ISIN code of the underlying security;
- Name;
- Address;
- Country;
- Final beneficial owner Y/N;
- Email address of the shareholder;
- Position on date of disclosure.
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 transposed on 1 December 2019 (SDR II Law).
The implementation law in the Netherlands includes both the changes as described in the directive and the implementing regulation. The elements that are described in the directive have been in force since 1 December 2019 and the elements as described in the implementation regulation have been effective since 3 September 2020 as described in the implementation law, signed by the King and Government on 29 November 2019.
Operational process
If CBF as our custodian for the Dutch market receives a request from the Eligible Issuer or its bank agent for the disclosure of details on position greater than or equal to 0.5% of the outstanding share capital of an Eligible Issuer, CBF will check its books on account level to determine which client accounts would meet the criteria. If client accounts with position meeting or exceeding the disclosure threshold are identified, CBF will notify the Eligible Issuer or its agent with the requested information as described above (details to be disclosed by the shareholder) within three (3) working days.
The issuer or its agent may then return with this information to the impacted clients for further information down the intermediary chain if appropriate.
Duty of secrecy
The Eligible Issuer has an obligation to keep the information obtained secret and to handle it with due care. The company has an obligation under the Corporate Governance Act to also organise the information in such a way as to ensure that it is protected from loss and unlawful processing.
Background and legal basis
The rules for the disclosure of voting rights, capital, major holdings and capital interest in issuing institutions can be found in Section 5.3 of the Act on Financial Supervision (Wft) and in the Decree on the Disclosure of Major Holdings and Capital Interests in Issuing Institutions [Besluit melding zeggenschap en kapitaalbelang in uitgevende instellingen]. See:
www.afm.nl/corporate/upl_documents/Act_on_Financial_Supervision_Wft_080307.pdf
The Netherlands Authority for the Financial Markets (AFM) plays a central role with regard to the implementation of the rules on the disclosure of major holdings and capital interests in issuing institutions: almost all tasks and powers of the Dutch Ministry of Finance under such rules have been delegated to the AFM (see www.afm.nl/corporate/default.ashx?DocumentId=9401).
Under Dutch law, the regulator could ask for disclosure to the issuer or to the beneficial owner but not - unless there is a specific request to disclose the identity of a shareholder as a result of an investigation (for example, regarding money laundering or terrorism) - to the custodian.
Sanctions
Failure to comply with reporting requirements represents an economic offence.
Breaches could be reported to the public prosecutor or fines could be imposed.
Obligation to report threshold crossings
Any acquisition of shares held in a public limited company (Naamloze Vernootschap) incorporated under Dutch law, whose shares (or certificates representing shares) have been admitted to the official listing of a stock exchange situated and operating within one of the member states of the EU (plus Iceland, Liechtenstein and Norway) that causes the holding to reach, exceed or fall below the 3%, 5%, 10%, 15%, 20%, 25%, 30%, 40%, 50%, 60%, 75% and 95% thresholds must be disclosed.
All shares are taken into account, as well as rights to shares (for example, in the form of warrants, call options, claims, convertible bonds and ADRs). The acquisition of voting rights and/or interest that the natural person or legal entity holds will include the votes or interest held or acquired by the subsidiary of the natural person or legal entity.
The shareholders have to report directly to the Dutch regulator, the Authority for the Financial Markets via the following online notification:
https://www.loket.afm.nl/loket/en-GB/default2.aspx?
Part of the information provided to the AFM will be published in the Dutch press, for example, in Het Financieele Dagblad and in the Staatscourant.
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.
Local law introduces a threshold of 0.5% for the Shareholder 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 clients 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 shareholder's identity, limited to Clearstream Banking books only.