Shareholding filings by listed companies and their shareholders

Companies listed in the Netherlands and their shareholders must adhere to specific notification obligations regarding shareholdings and voting rights. These obligations are set out in the Financial Supervision Act (Wet op het financieel toezicht, Wft) and are, for the most part, an implementation of the EU Transparency Directive. 

Shareholding notifications for companies listed in the Netherlands must be filed with the Dutch regulator Autoriteit Financiële Markten (AFM) and are processed in publicly available registers, such as the register for issued share capital, for substantial holdings, and for shareholdings held by managing and supervisory directors.

Most notifications must be made 'without delay', meaning as soon as the person with the notification obligation knows, or should reasonably know, of the notifiable change.

Issued Share Capital Notification

Issuers must notify any changes in their issued share capital and voting rights to the AFM without delay. The notification must include all classes of shares, even non-listed share classes. The notification obligation covers both an initial notification when a company becomes listed and ongoing notifications for any changes in share capital.

Substantial Holdings Notifications

Shareholders of listed companies must notify the AFM when their direct or indirect shareholdings or voting rights reach or cross certain thresholds: 3%, 5%, 10%, 15%, 20%, 25%, 30%, 40%, 50%, 60%, 75% and 95%. Any changes in a shareholding that do not cause it to cross a threshold do not have to be notified. 

A key aspect of the substantial holdings notifications is the set of attribution rules, which determine who is deemed to hold shares or voting rights and therefore has the obligation to make a notification. A few examples: 

• Controlled Company: A person is deemed to hold shares and voting rights held by their controlled company, which is either a subsidiary or a company over which they have predominant control.
• Sustained Joint Voting Policy: Shareholders who commit towards each other to exercise their voting rights in a specific issuer in accordance with a sustained joint voting policy, are deemed to also hold each other's voting rights for notification purposes.

Due to the various attribution rules, it may not be apparent at first glance which party has the notification obligation. 

Directors' Shareholding Notifications

Executive directors and supervisory directors of listed companies must notify their shareholdings in the issuer and any changes therein to the AFM. This obligation only applies to directors of Dutch NVs listed on a regulated market and does not apply to other companies listed in the Netherlands. In certain instances, this notification obligation may overlap with a director's obligation to notify transactions in the issuer's shares pursuant to Article 19 MAR. In such cases, the AFM has confirmed that a director may fulfil their obligation by making a notification under the Wft, which also serves as a notification under Article 19 MAR. 

Enforcement and Penalties

Failure to comply with notification obligations can result in enforcement actions, including administrative or criminal fines. The severity of the sanction can depend on the nature of the violation.

Recommendations

In practice, it can be challenging for issuers and their shareholders to remain consistently alert about when share notifications must be made and what the precise content of such notifications should be. Due to the various attribution rules, it may not be apparent at first glance which party has the notification obligation.

Regularly reviewing share transactions and changes in capital can help identify when notifications are required. Since most notifications must be made without delay, it is prudent to analyse this in a timely manner and seek advice where necessary. 

Read the full article in Dutch here, and the informal English translation here. 

Author: Emilie Renardel de Lavalette

Source: Tijdschrift Financieel Recht in de Praktijk, 2024, no. 5

Publication date: September 2024