Financial Markets Amendment Act 2010

Other than planned, this amending legislation1 has not yet come into force. The Minister is now aiming for an effective date in March of this year. The most recent development in the parliamentary process is the Sixth Memorandum of Amendments which contains changes regarding the “wild west sign” and the major dispensation for offerors of investment objects. The plenary debate in the Second Chamber of the Dutch Parliament will take place in the week of 8 March. Meanwhile, some provisions of the Financial Markets Amendment Regulation 2010 and the Financial Markets Amendment Decree 2010 have come into effect.

Financial Markets Amendment Regulation 2010

This Amendment Regulation has been published in the Government Gazette2 and came into force on 1 January, with the exception of article 53 of the Exemption Regulation FMSA, which will come into force at the same time as the Financial Markets Amendment Act 2010.

The regulations amended include:

  • Exemption Regulation FMSA
  • FMSA Implementing Regulation
  • Regulation implementing the Prevention of Money Laundering and Terrorist Finance Act

The amendments are mainly of a technical nature but there are also some substantive changes.

Amendment of the exemption for offers with a total equivalent value of less than EUR 2.5 million

Article 53.2 of the Exemption Regulation FMSA provides for an exemption from the provisions of chapter 5.1 FMSA where the securities are part of an offer with a total equivalent value, calculated over a 12-month period, of less than EUR 25 million.

The Amendment Regulation makes the following changes to this article:

  • Clarification is given that the calculation of the total equivalent value of the offer refers to the total equivalent value within the European Economic Area and not merely the total equivalent value in the Netherlands.
  • In addition, the scope of the exemption in chapter 5.1 FMSA will now be limited only to the category of securities, rather than category and class. By making this change, the Ministry of Finance intends to follow more closely the interpretation of the Prospectus Directive in other Member States.
  • A new third paragraph has been added to the exemption. It provides that in calculating the amount of exemption, offers by group companies will be added together.
  • The fourth paragraph (new) has been amended in view of the Financial Markets Amendment Act 2010. It now provides that in advertising and documents announcing the offer or listing, offerors must mention that there is no statutory obligation to make a prospectus generally available which has been approved by the AFM in connection with the offer or listing and that no supervision has been exercised by the AFM (the wild-west sign).

Financial Markets Amendment Decree 2010

This Amendment Decree has been published in the Bulletin of Acts and Decrees3. It contains amendments to various decrees issued in connection with the FMSA. Most amendments have been made to correct errors or omissions. Some entered into force on 1 January 2010. The other amendments will take effect when the Financial Markets Amendment Act 2010 enters into force.