Amendments to two sections of the Exemption Regulation pursuant to the FMSA (Vrijstellingsregeling Wft) took effect as of 18 March 20092.
The first amendment is to Article 10, which stipulates that investment firms with a registered office in Australia, the United States or Switzerland that intend to provide investment services and perform investment services3 in the Netherlands are exempt from the prohibition. When the Exemption Regulations were amended in connection with the implementation of MiFID, Article 10 did not take into consideration the distinction made in the Directive between investment services and investment activities. This led to the exemption being erroneously limited to investment firms that provide investment services, which has now been rectified.
In addition, Article 54 of the Exemption Regulation sets out an exception to the obligation to publish a prospectus when offering securities by an MTF (multilateral trading facility) operating in the Netherlands, insofar as these securities are currently permitted to trade on other trading platforms in other member states or – under certain conditions – in a country that is not an EU member state. This exception is only applicable if the accounting regulations applied by the issuing institution in question are an ‘equivalent’ implementation measure as referred to in Article 23 of the Transparency Directive. The Commission has currently implemented this measure4, whereby it deemed the general accepted accounting principles (GAAP) of Japan and the United States as equivalent. The GAAP of China, Canada, South Korea and India are also considered equivalent for financial years commencing prior to 1 January 2012.
These amendments are an attempt to bring the implementation of the Prospectus Directive in other member states of the European Union into one line. These amendments concern offering securities to the public via an MTF and therefore have no effect on the offering of securities to the public via a regulated market or admitting securities to a regulated market.