On 3 April 2009, the Amsterdam District Court delivered its decision in the VHS case.8 The VHS case centres around the CEO of VHS Onroerend Goed Maatschappij N.V., a company then listed on Euronext Amsterdam. The CEO held a majority stake in the company (80%). The District Court established that the CEO had effected several transactions in VHS shares through third-party accounts during a four-year period, both on and off the exchange, for the purpose of stabilising the price of VHS shares.
The CEO effected the transactions between 2000 and 2004. The public prosecutor could not charge the CEO with market manipulation due to the rather restricted legal regime regarding market manipulation in effect at that time: article 344 CC which did not apply to manipulative transactions but only to spreading false information. This regime was amended in October 2005 and now also covers manipulative transactions. Because of this restricted regime, the CEO was (only) charged with (i) breaching the duty to report his transactions in VHS shares to the Netherlands Authority for Financial Markets; and (ii) violating the prohibition on insider trading by trading in VHS shares while having superior knowledge of the manipulation scheme.
The District Court found the CEO guilty of the first charge and acquitted the CEO of the second charge based on the reasoning in earlier jurisprudence of the Dutch Supreme Court.9 According to this jurisprudence, if a manipulator has knowledge of self-produced facts, such knowledge does not qualify as inside information. A manipulator, even though he has certain specific non-public information, will therefore not automatically violate the prohibition on insider trading.
Both the public prosecutor and the defence have lodged notices of appeal with the Amsterdam Court of Appeal.
The public prosecutor also investigated the role of Staalbankiers N.V. and concluded that it had insufficiently intervened in the transactions in VHS shares. Staalbankiers reached an out-of-court settlement of EUR 400,000 with the public prosecutor upon taking additional compliance measures, such as stricter training programmes and more stringent internal policies, and dismissing some of the employees involved in the transactions in VHS shares.