Financial
Supervision Act
Chapter 1.4. Supervision and enforcement
Section 1.4.1. Supervision of compliance
Article 1:72 Persons charged with supervision over compliance with the
present Act
- 1. The supervisor
shall designate by decision the persons who are charged with the exercise
of supervision over the compliance with the rules set by or pursuant to
the present Act.
- 2. A decision as referred to in paragraph
1 shall be announced by means of a publication in the Government Gazette
('Staatscourant').
Article 1:73 Powers of persons designated to exercise supervision
- 1. The persons
referred to in Article 1:72, paragraph 1, do not possess the powers mentioned
in Articles 5:18 and 5:19 of the General Administrative Law Act.
- 2. Insofar as the persons who are designated
on the basis of Article 1:72 by the Authority for the Financial Markets
to exercise conduct supervision in respect of financial enterprises to
which a licence has been granted by the Dutch Central Bank, require data
on aspects of the business operations as referred to in Article 3:17,
paragraph 2,under (a) or (b), these persons shall not exercise their powers
as provided under Articles 5:15, 5:16 or 5:17 of the General Administrative
Law Act than after the Dutch Central Bank has been requested to supply
this data and it has become apparent that the Dutch Central Bank cannot
comply with this request.
- 3. Insofar as the persons who are designated
on the basis of Article 1:72 by the Dutch Central Bank to exercise prudential
supervision in respect of financial enterprises to which a licence has
been granted by the Authority for the Financial Markets, require data
on aspects of the pursuance of business operations as referred to in Article
4:14, paragraph 2, under (a) or (b), these persons shall not exercise
their powers as provided under Articles 5:15, 5:16 or 5:17 of the General
Administrative Law Act than after the Authority for the Financial Markets
has been requested to supply this data and it has become apparent that
the Authority for the Financial Markets cannot comply with this request.
- 4. It is possible, after consultation with
the other supervisor, to derogate from paragraph 2 and 3, if there is
a reasonable suspicion of a violation of the rules set by or pursuant
to the present Act, and the urgent nature of the interests involved so
requires.
Article 1:74 Supervisor’s right to demand information from any person
- 1. The supervisor may demand information
from any party for the purpose of exercising supervision over the compliance
with the rules set by or pursuant to the present Act.
- 2. Articles 5:13 and 5:20 of the General
Administrative Law Act shall apply accordingly.
- 3. Insofar as the Authority for the Financial
Markets, for the purpose of exercising conduct supervision in respect
of financial enterprises to which a licence has been granted by the Dutch
Central Bank, requires data on aspects of the business operations as referred
to in Article 3:17, paragraph 2, under (a) or (b), the Authority for the
Financial Markets shall not demand any information than after it has requested
the Dutch Central Bank to supply this data and it has become apparent
that the Dutch Central Bank cannot comply with this request.
- 4. Insofar as the Dutch Central Bank, for
the purpose of exercising prudential supervision in respect of financial
enterprises to which a licence has been granted by the Authority for the
Financial Markets, requires data on aspects of the business operations
as referred to in Article 4:14, paragraph 2, under (a) or (b), the Dutch
Central Bank shall not demand any information than after it has requested
the Authority for the Financial Markets to supply this data and it has
become apparent that the Authority for the Financial Markets cannot comply
with this request. - 5. It is possible, after
consultation with the other supervisor, to derogate from paragraph 3 and
4, if there is a reasonable suspicion of a violation of the rules set
by or pursuant to the present Act, and the urgent nature of the interests
involved so requires.
Article 1:75 Right of the supervisor to give instructions to financial
enterprises
- 1. If any of the persons meant below fails
to comply with what is provided by or pursuant to the present Act, the
supervisor may oblige this person, by issuing an instruction, to follow
within a reasonable period of time a specific line of conduct in regard
of items listed in the instruction order:
a. a financial enterprise;
b. a representative of an insurer;
c. a holder of a declaration of no objection
by virtue of Articles 3:95, 3:96 or 5:32d;
d. any person who, operating in or from the
Netherlands in the pursuance of his business, attracts callable funds
beyond a restricted circle of persons from others than professional market
parties or obtains the disposal or has the disposal of such funds;
e. any person who, operating in or from the
Netherlands, performs in the pursuance of his business or professional
practice activities, being a service of the information society as referred
to in Article 15d, paragraph 3, of Book 3 of the Dutch Civil, as a broker
in another Member State in order to attract or obtain beyond a restricted
circle of persons the disposal of callable funds from others than professional
market parties;
f. a market operator.
- 2. The Dutch Central Bank may also issue
an instruction within the meaning of paragraph 1 to a financial enterprise
where it detects signs of a development that may jeopardise the equity
capital, solvency or liquidity or the technical provisions of the financial
enterprise in question.
- 3. An instruction issued to a person on the
basis of paragraph 1 or 2 shall not affect contracts between that person
and third parties.
Article 1:76 Right of the supervisor to appoint a guardian
- 1. The supervisor may decide to appoint one
or more persons as guardian of all or certain bodies or representatives
of a financial enterprise if the financial enterprise does not comply
with what is provided pursuant to the present Act.
- 2. The decision meant in paragraph 1 shall
be taken only:
a. after the financial enterprise has failed
to comply, either fully or in part, with an instruction as referred to
in Article 1:75, paragraph 1, within the specified period of time, or;
b. if the violation referred to in paragraph
1 seriously jeopardises an adequate functioning of the financial enterprise
and that financial enterprise has been given the opportunity earlier to
submit its view on the intended decision, or;
c. if the violation referred to in paragraph
1 seriously jeopardises the interests of consumers or, where it concerns
financial instruments or insurances, the interests of clients, with the
exception of professional investors, and that financial enterprise has
been given the opportunity earlier to submit its view on the intended
decision.
- 3. Without prejudice to paragraph 1 and 2,
the Dutch Central Bank may decide to appoint one or more persons as guardian
of all or certain bodies or representatives of a financial enterprise
where it detects signs of a development that may jeopardise the equity
capital, solvency or liquidity or the technical provisions of that financial
enterprise.
- 4. The decision meant in paragraph 1 shall
be taken only:
a. after the financial enterprise has failed
to comply, either fully or in part, with an instruction as referred to
in Article 1:75, paragraph 2, within the specified period of time, or;
b. if urgent intervention is required and
the financial enterprise has been given the opportunity earlier to submit
its view on the intended decision.
- 5. The decision of appointment shall include
a description of the interests which the guardian has to observe. The
supervisor shall appoint the guardian for a maximum period of two years,
which period may be extended by a maximum period of one year at a time;
the extension shall have immediate effect. From the moment that the decision
of the appointment of a guardian has been notified to the financial enterprise,
the relevant bodies or representatives may only exercise their powers
subject to the guardian’s approval and with due observance of the
guardian’s instructions.
- 6. After the appointment of a guardian:
a. the bodies and representatives of the financial
enterprise shall lend the guardian their full cooperation;
b. the supervisor may permit the relevant
bodies or representatives of the financial enterprise to perform certain
juridical acts without approval;
c. the supervisor may replace the guardian
at any time;
d. every person forming a part of the body
of the financial enterprise which has performed acts in violation of a
decision as referred to in paragraph 1 or 3 that resulted in loss or damage,
shall be joint and several liable towards that financial enterprise, unless
such person is not to blame that these acts were performed and he has
not been negligent in taking measures to avert the consequences thereof;
e. the acts referred to under (d), insofar
as they are juridical acts, shall be susceptible to annulment if the counterparty
knew or ought to have known that the required approval was not granted.
- 7. As soon as the circumstance referred to
in paragraph 1 or 3 no longer exists, the supervisor shall revoke the
decision of appointment of a guardian. The supervisor shall inform the
financial enterprise without delay of this decision.
- 8. Paragraph 1, 2 and 5 up to and including
7 shall apply accordingly to any person who, operating in or from the
Netherlands in the pursuance of his business, beyond a restricted circle
of persons attracts callable funds or obtains the disposal or has the
disposal of such funds from others than professional market parties.
Article 1:77 Consequences of non complying with an instruction of the
supervisor
- 1. If a financial enterprise in regard of
which the supervisor has approved a proposal as referred to in Articles
2:107, 2:108, 2:111, 2:112, 2:115, 2:117, 2:118, 2:120, 2:121, 2:121a,
2:122, 2:127 or 2:130, has received an instruction as meant in Article
1:75 relating to the pursuance of its business operations or to its financial
situation, and the financial enterprise has not or insufficiently complied
with that instruction, the supervisor may decide to prevent that financial
enterprise from conducting its business from a branch office or through
the performance of services or from providing financial services in the
other Member State. The supervisor shall notify the supervisory authority
of the Member State involved of this decision. From the time of this notification,
the financial enterprise may no longer conduct its business from the branch
office or through the performance of services or perform services in the
other Member State.
- 2. If an insurer has received an instruction
as referred to in Article 1:75 relating to the credentials or reliability
of the insurer’s representative or of a person laying down the day-to-day
policy of that insurer, and the insurer has not or insufficiently complied
with that instruction, paragraph 1 shall apply accordingly.
Article 1:78 Auditor or actuary who no longer performs his duties satisfactorily
- 1. If an auditor or actuary does not or no
longer provides the required safeguards that he will be able to perform
his duties satisfactorily with regard to the financial enterprise, the
supervisor may decide that this auditor or actuary is no longer authorised
to issue the statements referred to in the present Act in relation to
that financial enterprise.
- 2. The supervisor shall inform the financial
enterprise without delay of the decision referred to in paragraph 1.
Article 1:79 Imposing an obligation under additional pressure of penalty
payments
- 1. The supervisor may impose an obligation
under additional pressure of penalty payments in relation to a violation
of:
a. rules arising from the Articles listed in
the Annex mentioned in connection with the present Article;
b. rules with respect to the exercise of supervision
over financial markets or over persons working on such markets, set out
on account of an Order in Council which refers to a Regulation as meant
in Article 288 of the Treaty on the functioning of the European Union;
c. the Regulation for Credit Rating Agencies,
and;
d. Article 5:20 of the General Administrative
Law Act.
- 2. Further rules may be set by Ministerial
Regulation with regard to exercise of power as referred to in paragraph
1.
Article 1:80 Imposing an administrative fine
- 1. The supervisor may impose an administrative
fine in relation to a violation of:
a. rules arising from the Articles listed
in the Annex mentioned in connection with the present Article;
b. rules with respect to the exercise of supervision
over financial markets or over persons working on such markets, set out
on account of an Order in Council which refers to a Regulation as meant
in Article 288 of the Treaty on the functioning of the European Union;
c. the Regulation for Credit Rating Agencies,
and;
d. Article 5:20 of the General Administrative
Law Act.
- 2. Further rules may be set by Ministerial
Regulation with regard to exercise of power as referred to in paragraph
1.
Article 1:81 Amount of the administrative fine
- 1. The amount of the administrative fine
shall be determined by Order in Council, on the understanding that the
administrative fine for each separate violation cannot exceed € 4,000,000.
Where, on the moment on which a violation occurs, less than five years
have expired since an administrative fine had been imposed on the offender
for the same kind of violation, the amount of the administrative fine
for each separate violation as meant in the first sentence shall be doubled.
- 2. The Order in Council referred to in paragraph
1 shall indicate the amount of the administrative fine to be imposed for
each separate violation as specified in that Order in Council. The violations
shall be classified in categories as to the significance of the violation,
with mention of the basic amount, the minimal amount and the maximum amount.
In doing so, the following layout will be used:
- Category 1: basic amount € 10,000, minimal amount € 0, maximum
amount € 10,000;
- Category 1: basis amount € 500, 000, minimum amount € 0, maximum
amount € 1,000,000;
- Category 3: basic amount € 2, 000,000, minimum amount € 0,
maximum amount € 4,000,000;
- 3. The supervisor may fix the amount of the
administrative fine, in derogation from paragraph 1 and 2, to at the most
twice the amount of the benefit that the offender has obtained as a result
of the violation, if that benefit exceeds € 2,000,000.
Article 1:82 [repealed on 01-07-2009]
Article 1:83 [repealed on 01-07-2009]
Article 1:84 [repealed on 01-07-2009]
Article 1:85 Objection or appeal against an imposed administrative fine
- 1. Where an objection or appeal is lodged
against a decision to impose an administrative fine, the obligation to
pay that fine shall be postponed until the period of appeal has expired
or, if an appeal is lodged, until a decision has been rendered on that
appeal.
- 2. The postponement of the obligation to
pay the imposed administrative fine shall not affect the period for calculating
the statutory interest.
Article 1:86 [repealed on 01-07-2009]
Article 1:87 [repealed on 01-07-2009]
Article 1:88 [repealed on 01-07-2009]
Chapter 1.5 Duty of confidentiality, exceptions in respect thereof and publication options
Section 1.5.1 Duty of confidentiality and exceptions in respect thereof
Article 1:89 Duty of confidentiality
- 1. Any person who fulfils or has fulfilled
any duty on the basis of the present Act or on the basis of decisions
taken pursuant to this Act shall be prohibited from making any further
or other use of confidential data or information supplied or obtained
pursuant to this Act or Article 5:2 of the General Administrative Law
Act, or received from a person or body as referred to in Articles 1:90,
paragraph 1 and 1:91, paragraph 1, respectively, and from disclosing such
data and information in any further or other way than as required for
the fulfilment of that party’s duties or required pursuant to the
present Act.
- 2. In derogation from paragraph 1, the supervisor
may make announcements with use of confidential data and information obtained
in the fulfilment of its duties on the basis of the present Act, provided
that these cannot be traced back to individual persons.
Article 1:90 Exchange of confidential data and information with other
supervisory authorities
- 1. In derogation from Article 1:89, paragraph
1, the supervisor may supply confidential data or information obtained
in the fulfilment of its duties on the basis of the present Act, to the
other supervisor or to the supervisory authority of another Member State,
unless:
a. the purpose for which the confidential
data or information will be used has not been adequately assessed;
b. the intended use of the confidential data
or information does not fit into the context of the supervision over financial
markets or over persons working on those markets;
c. the provision of the confidential data
or information would be not be compatible with Dutch law or public order;
d. the non-disclosure of the confidential
data or information is not sufficiently guaranteed;
e. the supply of the confidential data or
information is or might reasonably be considered contrary to the interests
that the present Act seeks to protect, or;
f. there is insufficient guarantee that the
confidential data or information will not be used for a purpose other
than that for which it is supplied.
- 2. Insofar as the data or information referred
to in paragraph 1 has been obtained from a supervisory authority of another
Member State, the supervisor shall not supply it to the other supervisor
or to the supervisory authority of another Member State, unless the supervisory
authority of the Member State from which the data or information was obtained
has expressly consented to the supply of the involved data and information
and, where applicable, has consented to the use of this data or information
for a purpose other than that for which it was supplied.
- 3. If a supervisory authority in another
Member State asks the supervisor which had supplied confidential data
or information on the basis of paragraph 1 or 2 for permission to use
that confidential data or information for a purpose other than that for
which it was supplied, the supervisor shall only grant this request:
a. if the intended use is not contrary to
paragraph 1 or 2, or;
b. to the extent that this supervisory authority
could obtain the possession of the involved data and information for this
other purpose in a manner not provided for in the present Act from the
Netherlands with due observance of the applicable statutory procedures,
and;
c. after consultation with the Minister of
Justice, if the request referred to in the opening words of this Article
relates to a criminal investigation.
- 4. The Authority for the Financial Markets
or the organisational unit of the Dutch Central Bank charged with the
fulfilment of duties as referred to in Article 1:24 may supply confidential
data or information to the organisational unit of the Dutch Central Bank
charged with the performance of monetary duties, insofar as the confidential
data or information serves the performance of those duties.
- 5. Paragraph 1 up to and including 3 apply
accordingly to the exchange of confidential data or information between
the supervisor’s organisational units charged with the fulfilment
of different duties. The supervisor shall guarantee that such exchange
of information occurs with due observance of the confidentiality regime
applicable to the relevant data or information pursuant to European Directives.
- 6. Paragraph 1 up to and including 3 apply
accordingly to the exchange of confidential data and information with
the European Commission, the European supervisory authorities, the Joint
Committee of the European supervisory authorities and the European Committee
for systemic risks.
Article 1:91 Supply of confidential data and information to other specific
persons
- 1. In derogation from Article 1:89, paragraph
1, the supervisor may supply confidential data or information obtained
in the fulfilment of its duties on the basis the present Act to a person
as referred to under (a), (b), (c), (d), (e) or (f) to the extent that
the involved data or information serves the performance of his duties:
a. a delegated judge (magistrate) appointed
pursuant to Article 3:162, paragraph 4;
b. an administrator appointed pursuant to
Article 3:162, paragraph 4;
c. a delegated judge (magistrate) appointed
pursuant to Article 223a of the Bankruptcy Act;
d. an administrator appointed pursuant to
Article 215, paragraph 2, of the Bankruptcy Act;
e. a delegated judge (magistrate) appointed
pursuant to Article 14 of the Bankruptcy Act;
f. a bankruptcy liquidator appointed pursuant
to Article 14 of the Bankruptcy Act.
- 2. The supervisor shall not supply any confidential
data or information as referred to in paragraph 1, if:
a. the provision of confidential data or information
is or might reasonably be considered contrary to the interests that the
present Act seeks to protect;
b. the confidential data or information was
obtained from the other supervisor or from another supervisory authority,
and this other supervisor or supervisory authority does not consent to
the supply of the involved confidential data or information.
- 3. In derogation from Article 1:89, paragraph
1, the bankruptcy liquidator who has been appointed as such in the bankruptcy
of an investment firm or market operator may supply confidential data
or information as referred to in paragraph 1 to the District Court, to
the extent that the involved data or information does not relate to third
persons and such supply is required for the liquidation (winding up) of
the bankruptcy estate.
- 4. In derogation from Article 1:89, paragraph
1, the bankruptcy liquidator who has been appointed as such in the bankruptcy
of a financial enterprise other than an investment firm or market operator
may supply confidential data or information as referred to in paragraph
1 to the District Court, to the extent that the involved data or information
does not relate to an enterprise that is or was involved in an attempt
to enable the bankrupt enterprise to continue its business.
- 5. Article 1:89, paragraph 1, shall not affect
the applicability of the provisions of the Code of Civil Procedure that
relate to making statements, as a witness or as a party in a personal
appearance of parties in court, or as an expert in civil proceedings,
with regard to data or information obtained in the performance of the
duties assigned pursuant to the present Act, insofar as it concerns confidential
data or information regarding a financial enterprise that has been declared
bankrupt or has been dissolved under a court order.
- 6. In the event of a bankruptcy or dissolution
under a court order of an investment firm or market operator, paragraph
5 shall not apply to confidential data or information concerning third
persons. In the event of a bankruptcy or dissolution under a court order
of a financial enterprise other than an investment firm or market operator,
paragraph 5 shall not apply to confidential data or information concerning
an enterprise that is or was involved in an attempt to enable the enterprise
in question to continue its business.
Article 1:92 Supply of confidential data and information in relation to
criminal offences
- 1. In derogation from Article 1:89, paragraph
1, the supervisor may supply confidential data or information obtained
in the fulfilment of the duties assigned to it pursuant to the present
Act to a body charged with the exercise of powers to prosecute criminal
offences or to an expert instructed by such body, insofar as the demanded
data or information are necessary for the performance of that instruction.
- 2. If the body referred to in paragraph 1
intends to exercise the power to demand the transmission of an object
liable to seizure or the power to demand inspection or a copy of documents
as referred to in Articles 96a, 105 or 126a of the Code of Criminal Procedure
(Wetboek van Strafvordering) or Articles 18 or 19 of the Economic Offences
Act (Wet op de economische delicten), and the demand relates to confidential
data or information as referred to in Article 1:89, paragraph 1, that
body shall give the supervisor the opportunity to express its view in
this respect before exercising its power.
Article 1:93 Supply of confidential data and information to other institutions,
an auditor or actuary
- 1. In derogation from Article 1:89, paragraph
1, the supervisor may supply confidential data or information obtained
in the fulfilment of the duties assigned to it pursuant to the present
Act to:
a. the European Central Bank, the national
central bank of another country or another foreign body charged with the
performance of a similar task, acting in its capacity of monetary authority,
insofar as the data or information serves the fulfilment of its monetary
duties and the exercise of supervision over payment, clearing or settlement
systems and the safeguarding of the stability of the financial system;
b. an auditor charged with the statutory audit
of the annual accounts of a financial enterprise, to the extent that the
confidential data or information relates to that financial enterprise
and is necessary for the audit;
c. an actuary charged with the statutory audit
of a financial enterprise, to the extent that the confidential data or
information relates to that financial enterprise and is necessary for
the audit;
d. the market operator, the investment firm
operating a multilateral trading facility or the holder of a system comparable
with a regulated market or a multilateral trading facility in a non-Member
State, with a view to monitoring compliance with the rules applicable
to that market; or
e. the Dutch Healthcare Authority, to the
extent that the data or information serves the performance of its statutory
duties.
- 2. The supervisor shall not supply any confidential
data or information on the basis of paragraph 1 if:
a. the purpose for which the confidential
data or information will be used has not been adequately assessed;
b. the intended use of the confidential data
or information does not fit into the context of the supervision over financial
markets or over persons working on those markets;
c. the supply of the confidential data or
information would not be compatible with Dutch law or public order;
d. the non-disclosure of the data or information
is not sufficiently guaranteed;
e. the supply of the confidential data or
information can or might reasonably be considered contrary to the interests
which the present Act seeks to protect, or;
f. there is insufficient guarantee that the
confidential data or information will not be used for a purpose other
than that for which it is supplied.
- 3. Insofar as the data or information referred
to in paragraph 1 was obtained from a supervisory authority, the supervisor
shall not supply it to the other supervisor or to another supervisory
authority, unless the supervisory authority from which the data or information
was obtained has expressly consented to the supply of the involved data
and information and, where applicable, has consented to the use of the
involved data or information for a purpose other than that for which it
was supplied.
- 4. If a body or person as referred to in
paragraph 1 asks the supervisor which had supplied the confidential data
or information for permission to use that confidential data or information
for a purpose other than that for which it was supplied, the supervisor
shall only grant this request:
a. if the intended use is not contrary to
paragraph 1, 2 or 3, or;
b. to the extent that this body or person
could obtain possession of that data or information for this other purpose
in a manner not provided for in the present Act, with due observance of
the applicable statutory procedures, and;
c. after consultation with the Minister of
Justice, if the request referred to in the opening words of this Article
relates to a criminal investigation.
Article 1:93a Supply of information in emergency situations
If the Dutch Central Bank, by virtue of Section 3.6.2, exercises supervision
on a consolidated bases over a Dutch investment firm or Dutch bank or
exercises supervision over a financial enterprise forming a part of a
group over which consolidated supervision is exercised, it shall immediately
inform the Minister and the bodies referred to in Article 1:93, paragraph
1, under (a), about any emergency situations, including detrimental developments
on the financial markets, that may harm the liquidity of the market and
the stability of the financial system in a Member State where financial
enterprises forming a part of the group that are involved in the consolidated
supervision have their registered seat, and the Dutch Central Bank shall
supply all information required for the fulfilment of their duties.
Article 1:93b Supply of confidential data and information by the Authority
for the Financial Markets
- 1. If the Authority for the Financial Markets
has been designated as contact point as referred to in Article 56, paragraph
1, third sentence, of the Directive for Markets in Financial Instruments,
it may, in derogation from Article 1:90, paragraph 1, supply confidential
data or information obtained in the fulfilment of its duties as a contact
point to the Dutch Central Bank.
- 2. Insofar as the data or information referred
to in paragraph 1 have been obtained from a supervisory authority in another
Member State, the Authority for the Financial Markets shall not supply
it to bodies or persons as referred to in Article 1:91, paragraph 1, under
(a) up to and including (f), Article 1:92, paragraph 1, and Article 1:93,
paragraph 1, under (a) up to and including (e), unless the relevant supervisory
authority from which the data or information was obtained has expressly
consented with the supply of the involved data and information and, where
applicable, has consented with the use of the involved data or information
for a purpose other than that for which it was supplied. In duly substantiated
circumstances, the Authority for the Financial Markets may also, without
the express consent of the relevant supervisory authority, supply the
involved data or information to the persons or bodies referred to in the
preceding sentence for a purpose other than that for which it was supplied.
In that case, the Authority for the Financial Markets shall notify, without
delay, the supervisory authority from which the data or information was
obtained.
Article 1:93c Supply of information to the Minister in relation to a declaration
of no objection
- 1. The Dutch Central Bank shall of its own
motion supply to the Minister all appropriate information in regard of
an application for or intention of the granting or withdrawal of a declaration
of no objection as referred to in Article 3:95, paragraph 3, if the relevant
shareholder’s participation has or may have important consequences
for the arrangement or proper functioning of the financial system.
- 2. Article 1:42, paragraph 7, shall apply
accordingly to the information meant in paragraph 1.
Section 1.5.2 Publication options of the supervisors
Article 1:94 Public warning
The supervisor may issue a public warning, where necessary with mention
of the reasons for that warning, in case of a violation of a prohibition
rule from the present Act or of Articles 1:58, paragraph 2, 1:58a, paragraph
2, 1:58b, paragraph 2, 1:58c, paragraph 3, 1:59, paragraph 2, 1:67, paragraph
1, 1:77, paragraph 1, third sentence, 4:4, paragraph 1, or 4:4a or of
a rule from a Regulation as referred to in Article 288 of the Treaty on
the functioning of the European Union as designated by Order in Council.
Article 1:95 Information of the offender in regard to a public warning
- 1. If the supervisor decides to issue a public
warning as referred to in Article 1:94, it shall inform the person involved
of this decision.
- 2. The decision shall state in any event
the violation ascertained, the content of the publication, the grounds
on which the decision is based and the manner in which and the period
after which the public warning will be issued.
- 3. Without prejudice to the provisions of
Article 4:11 of the General Administrative Law Act, the supervisor may
choose not to apply Article 4:8 of that Act if the address of the person
involved is not known and cannot be obtained with reasonable effort.
Article 1:96 Time period for issuing a public warning / provisional relief
- 1. A public warning as referred to in Article
1:94 shall not be issued before five working days have passed after the
day on which the person involved was informed of the decision in accordance
with Article 1:95.
- 2. If provisional relief as meant in Article
8:81 of the General Administrative Law Act is sought, the effect of the
decision shall be postponed until the provisional relief judge has rendered
a judgment.
- 3. If the protection of the interests which
the present Act seeks to protect does not allow any delay, the supervisor
may, in derogation from the preceding paragraphs, issue a public warning
immediately.
Article 1:97 Publication of an administrative fine
- 1. A decision to impose an administrative
fine under the present Act shall be made public by the supervisor after
it has been notified to the person involved, if the administrative fine
was imposed for a violation of:
a. a prohibition rule from the present Act
or as meant in Articles 1:58, paragraph 2 and 3, 1:58a, paragraph 2, 1:58b,
paragraph 2, 1:58c, paragraph 3, 1:59, paragraph 2, 1:67, paragraph 1,
1:77, paragraph 1, first sentence, 4:4, paragraph 1, or 4:4a;
b. a provision other than one as meant under
(a) to which an administrative fine of Category 3 has been set by Order
in Council on the basis of Article 1:81, paragraph 1;
c. Articles 2:10, paragraph 4, 2:15, paragraph
2, 2:18, paragraph 2, 2:25, paragraph 2, 2:26, 2:36, paragraph 5, 2:45,
paragraph 4, 2:54, paragraph 4, 2:100, paragraph 2, 2:103, 2:107, paragraph
1, 3:5, paragraph 4, 3:8, 3:9, paragraph 1, 3:39, paragraph 1, 3:47, paragraph
1, 3:53, paragraph 1, 3:57, paragraph 1, 3:57, paragraph 5, 3:63, paragraph
1 and 3, 3:67, paragraph 1, 3:68, paragraph 1 and 3, 3:69, paragraph 1,
3:72, paragraph 3, 3:99, paragraph 1, 3:111a, paragraph 1 and 2, 3:135,
paragraph 1, 3:138, paragraph 1, 3:139, paragraph 1, 3:141, paragraph
1, 3:144, paragraph 1, 3:145, paragraph 1, 3:146, paragraph 1, 3:148,
paragraph 1, 3:153, 3:259, paragraph 1 and 2, 3:271, 3:272, paragraph
1, 3:285, paragraph 1 and 2, 3:286, paragraph 1 and 2, 3:296, paragraph
1 and 3, 4:9, paragraph 1, 4:10, paragraph 1, 4:19, 4:20, 4:22, 4:23,
4:24, 4:31, paragraph 1 up to and including 3, 4:31a, 4:42, 4:49, paragraph
1, 4:50, paragraph 2, 4:53, 4:56, paragraph 1, 4:59, paragraph 2, 4:60,
paragraph 4, 4:87, 4:94, paragraph 3, 4:95, paragraph 3, 4:96, paragraph
1 and 2, 4:100, paragraph 3, 5:26, paragraph 1, 5:34, paragraph 1 and
2, 5:35, paragraph 1 up to and including 4, 5:38, paragraph 1 and 2, 5:39,
paragraph 1, 5:40, 5:41, paragraph 1 and 2, 5:42, 5:43, paragraph 1 and
2, 5:48, paragraph 3 up to and including 8, 5:60, paragraph 1, 5:62, paragraph
1, of 5:64, paragraph 1;
d. a provision other than one as meant under
(c) to which an administrative fine of Category 2 has been set by Order
in Council on the basis of Article 1:81, paragraph 1, where this is specified
in that Order in Council;
e. a provision of a Regulation as meant in
Article 288 of the Treaty on the functioning of the European Union, designated
for this purpose by Order in Council;
- 2. A decision to impose an administrative
fine shall not be made public before five working days have passed after
the day on which the decision was notified to the person involve.
- 3. If provisional relief as meant in Article
8:81 of the General Administrative Law Act is sought, the public announcement
of the decision shall be postponed until the provisional relief judge
has rendered a judgment.
- 4. Where a public announcement of the decision
is or might come in conflict with the objective of the supervision to
be exercised by the supervisor over the compliance with the present Act,
it shall not be made.
Article 1:98 Additional rules for publication of an administrative fine
Without prejudice to Article 1:97, a decision to impose an administrative
fine under the present Act shall be made public by the supervisor, if
that fine has become legally irreversible, unless such publication of
the decision is or might come in conflict with the objective of the supervision
to be exercised by the supervisor over the compliance with the present
Act.
Article 1:99 Publication of an imposed obligation under penalty payments
- 1. A decision to impose an obligation under
additional pressure of penalty payments on the basis of the present Act,
shall be made public by the supervisor, if the penalty payment has been
forfeited, unless publication of the decision is or might come in conflict
with the objective of the supervision to be exercised by the supervisor
over the compliance with the present Act.
- 2. If provisional relief as meant in Article
8:81 of the General Administrative Law Act is sought, the publication
of the decision shall be postponed until the provisional relief judge
has rendered a judgment.
Article 1:100 Immediate publication of an administrative fine or obligation
under penalty payments
In derogation from Articles 1:97, paragraph 2 and 3, 1:98 or 1:99, paragraph
1 and 2, a decision to impose an administrative fine or an obligation
under additional pressure of penalty payments may be made public immediately
by the supervisor, if protection of the interests which the present Act
seeks to protect does not allow any delay.
Article 1:101 Provisional relief in relation to an intended publication
- 1. If provisional relief as referred to in
Article 8:81 of the General Administrative Law Act is sought against a
decision as referred to in Article 1:94, 1:97, paragraph 1, and 1:99,
paragraph 1, the court hearing shall be held behind closed doors.
- 2. If the provisional relief judge has prohibited
the publication of a decision as referred to in Articles 1:94, 1:97, paragraph
1, and 1:99, paragraph 1, the persons involved in the objection shall
not be heard in public.
- 3. If the provisional relief judge has prohibited
the publication of a decision as referred to in Articles 1:94, 1:97, paragraph
1, and 1:99, paragraph 1, and an appeal is lodged against the decision
on the objection to that decision, the court hearing shall be held behind
closed doors.
Article 1:102 Application for a licence
- 1. Rules shall be set by or pursuant to Order
in Council in respect of the manner in which the application has to be
lodged.
- 2. In view of the interests which the present
Part seeks to protect, conditions and limitations may be attached to a
licence.
- 3. The supervisor shall render a decision
on the application within 13 weeks after its receipt.
- 4. In derogation from paragraph 3, the supervisor
shall render a decision on an application for a licence for an institution
for collective investments in negotiable securities within 8 weeks.
- 5. The supervisor shall confirm the receipt
of the application to the applicant without delay.
Article 1:103 Simultaneous application for a declaration of no objection
- 1. In derogation from Article 1:102, paragraph
3, the supervisor shall stay its decision on a application for granting
a licence if an application for a declaration of no objection as referred
to in Article 3:95, paragraph 1, under (b) or (c), has been submitted
also, until no later than 6 weeks after the moment when the order relating
to the declaration of no objection was announced. If a petition for preliminary
relief relating to that court order was filed within that period, the
supervisor shall postpone its decision until two weeks after the moment
on which a court decision is rendered on that petition.
- 2. Irrespective of the application of the
preceding paragraphs, the supervisor shall in any event render a decision
in regard of the licence within 6 months after the receipt of the application.
Article 1:104 Change, withdrawal or limitation of a licence by the supervisor
- 1. The supervisor may chance, withdraw, either
fully or in part, or limit a licence it has granted or attach further
conditions to it if:
a. the licence holder has lodged an application
to that end;
b. the licence holder, as becomes apparent
only afterwards, supplied incorrect or incomplete data when applying for
the licence, and knowledge of the correct and complete data would have
resulted in a different decision;
c. the licence holder concealed circumstances
or facts on the grounds of which, if they had occurred or been known at
the time when the licence was granted, the licence would have been refused;
d. the licence holder no longer complies with
the rules set by or pursuant to the present Act, or no longer complies
with the conditions or limitations attached to the licence;
e. the licence holder did not make use of
the licence within 12 months after it was granted;
f. the licence holder has ended the activity
for which the licence was required, is an investment firm payment institution,
electronic money institution or exchange institution that has discontinued
its business for a period of more than 6 months or is an entity for risk
acceptance which has discontinued its business for which it holds a license
for a period of more than 6 months, is a life insurer or non-life insurer
which has discontinued its business in the sector for which it holds a
license for a period of more than 6 months, is a funeral expenses and
benefits in kind insurer which has discontinued its business for which
it holds a license for a period of more than 6 months or is a reinsurer
which has discontinued its business in a reinsurance activity for which
it holds a license for a period of more than six months;
g. the licence holder has transferred the
enterprise for which the licence was granted, either fully or in part,
or the Dutch Central Bank has made an announcement as referred to in Article
3:159d, paragraph 1;
h. the licence holder dies (in the case of
a natural person) or is dissolved (in the case of a legal person or partnership);
i. the statement regarding the fair presentation
that forms part of the other information referred to in Article 3:71,
paragraph 1, or the statement referred to in Articles 3:72, paragraph
7, 3:81, paragraph 3, or 3:86, paragraph 1 or 2, does not show that the
annual accounts or the records referred to in Article 3:72, paragraph
1 or 2, give a true and fair view of the enterprise’s financial
position and of its results for the financial year concerned, or;
j. the licence holder has been declared bankrupt,
the Debt Repayment Scheme for Natural Persons has been declared applicable
to the licence holder, the court has placed one or more assets of the
licence holder under a fiduciary administration for adults as meant in
Articles 380, 409 or 431 of Book 1 of the Dutch Civil Code or if the licence
holder has been placed under adult guardianship;
k. the licence holder is a payment institution
or an electronic money institution that has explicitly stated that it
will not or no longer conduct its business, or;
l. the licence holder is a payment institution
or electronic money institution that, when it continues its business,
shall form a threat for the stability of the payment system.
- 2. The supervisor shall withdraw a licence
it has granted if:
a. an authorisation as referred to in Article
3:163, paragraph 1, opening words and under (b) has been granted: the
withdrawal shall then take place at the moment on which that authorisation
was granted or as soon as possible thereafter, insofar as the enterprise
still held a licence immediately prior to that moment;
b. an authorisation as referred to in Article
3:163, paragraph 1, opening words and under (c) has been granted: the
withdrawal shall then take place at the moment on which, during the emergency
regulations, assets of the enterprise were converted into cash for the
first time with a view to distributing the proceeds among the creditors,
shareholders or members, or as soon as possible after the said time, insofar
as the enterprise still held a licence immediately prior to the first
moment on which assets were converted into cash; or
c. it has agreed to a portfolio transfer as
referred to in Articles 3:112, 3:113 and 3:114.
- 3. The supervisor may stipulate in the decision
to withdraw a licence that the financial enterprise must wind up its business,
either fully or in part, within a period to be specified by the supervisor.
During the winding-up, whether or not stipulated by the supervisor, the
financial enterprise or the bankruptcy liquidator of the financial enterprise
shall be classified as a licensed enterprise.
- 4. Paragraph 1 and 3 apply accordingly to
licences granted by the Minister.
Article 1:104a Transferring party regarded as holder of a licence
A party transferring a financial enterprise in regard of which Section
3.5.4A is applied, shall be regarded as holder of the licence granted
to that enterprise.
Article 1:105 Application of the present Section to other declarations,
dispensations or approvals
- 1. What is provided by or pursuant to the
present Section with respect to a licence shall apply accordingly to:
a. a supervisory status certificate as referred
to in Articles 2:69a and 3:110;
b. a declaration of no objection as referred
to in Art icle5:32;
c. a dispensation as referred to in Articles
2:23, 2:54i, 2:55, 2:60, 2:65, 2:75, 2:80, 2:86, 2:92, 2:96, 3:5, 3:6,
3:7, 4:3, 5:26 and 5:81, insofar as it concerns a dispensation from Article
5:74, paragraph 1, or Article 5:79, on the understanding that the dispensation
may be granted either fully or in part;
d. an approval as referred to in Article 3:116,
on the understanding that if a supervisory authority of another Member
State gives its advice or grants its approval in relation to the intended
transfer, the decision period shall be suspended by a maximum of the period
available to that supervisory authority under Article 3:118, paragraph
5, and;
e. an approval as referred to in Article 3:278b.
- 2. Article 1:102, paragraph 1, under (c),
shall apply accordingly to a dispensation other than that referred to
in paragraph 1, under (c). Further rules may be set by Ministerial Regulation
with regard to the conditions that may be attached to this dispensation.
This dispensation may be withdrawn.
Article 1:106 Suspension of the processing of an application
- 1. For the purpose of implementing a binding
decision to that effect of the Commission of the European Communities
or the Council of the European Union with regard to a non-Member State,
the supervisor and the Minister, respectively, shall, in derogation from
Article 1:102, suspend either fully or in part:
a. the process of considering applications
for a licence to conduct the business of a bank, life insurer or non-life
insurer or for a licence to provide financial services as management company
or investment firm, where the application is lodged directly or indirectly
by a financial enterprise governed by the law of a non-Member State;
b. the process of considering applications
for a declaration of no objection as referred to in Article 3:95 where
the application is lodged directly or indirectly by a financial enterprise
governed by the law of a non-Member State;
c. the process of considering notifications
as referred to in Article 3:103, where such notification was filed directly
or indirectly by a financial enterprise governed by the law of a non-Member
State.
- 2. Paragraph 1 shall not apply to:
a. applications for a licence to form subsidiaries
that are also subsidiaries of a financial enterprise which has a licence
in a Member State to conduct the business of a bank, life insurer or non-life
insurer, or to provide financial services as a management company or investment
firm;
b. applications for a declaration of no objection
relating to qualifying shareholder’s participations that are also
qualifying shareholder’s participations in a financial enterprise
to which a licence is granted in a Member State to conduct the business
of a bank, life insurer or non-life insurer, or to provide financial services
as a management company or investment firm.
- 3. If the market access and competition opportunities
in a non-Member State are more limited for financial enterprises having
their registered seat in a Member State than for financial enterprises
having their registered seat in a non-Member State, the supervisor shall,
upon request, notify the Commission of the European Communities of:
a. applications for a licence to conduct the
business of a bank, life insurer or non-life insurer, or to provide financial
services as a management company or investment firm, which were lodged
directly or indirectly by financial enterprises governed by the law of
the non-Member State;
b. applications for a declaration of no objection
relating to qualifying shareholder’s participations in a bank, management
company or investment firm, life insurer or non-life insurer, which were
lodged directly or indirectly by financial enterprises governed by the
law of the non-Member State, as a result of which that bank, investment
firm, life insurer or non-life insurer would become a subsidiary of the
applicant.
Section 1.6.1a Declarations of no objection as referred to in Article
3:95 and 3:96
Article 1:106a Provisions applicable to a declaration of no objection
What is provided by or pursuant to Articles 1:102, paragraph 1 and 2,
1:104 and 1:106 in regard of a licence, shall apply accordingly to a declaration
of no objection as referred to in Articles 3:95 and 3:96.
Article 1:106b Application for a declaration of no objection lodged with
the Dutch Central Bank
- 1. Within two working days after receipt
of an application for a declaration of no objection and of all data and
documents meant in Article 3:95, paragraph 2, and Article 3:96, paragraph
2, the Dutch Central Bank shall send a written confirmation of receipt
to the applicant.
- 2. The Dutch Central Bank shall decide on
the application within sixty working days after the sending of the confirmation
of receipt referred to in paragraph 1, without prejudice to Article 1:106.
The Dutch Central Bank shall inform the applicant of the date on which
it shall render its decision at the latest.
- 3. Where it concerns an application as meant
in Article 1:62 for a declaration of no objection as referred to in Article
3:95, the Dutch Central Bank shall mention in its decision the advice
of the supervisory authority of the Member State involved.
Article 1:106c Request to the applicant for additional information
- 1. Up until fifty days after the confirmation
of receipt meant in Article 1:106b, paragraph 1 was send, the Dutch Central
Bank may request the applicant in writing to provide additional information
where this is required for the evaluation of the application. The request
shall mention which additional information has to be provided.
- 2. Within two working days after receipt
of the additional information meant in paragraph 1, the Dutch Central
Bank shall send a written confirmation of receipt to the applicant.
- 3. Where the Dutch Central Bank has requested
for additional information as meant in paragraph 1, it may extend the
decision period referred to in Article 1:106b, paragraph 1, one time only
for at the most twenty working days.
- 4. In derogation from paragraph 3, the Dutch
Central Bank may extend the decision period with at the most thirty working
days if:
a. the applicant has its registered seat or
stands under supervision in a State which is not a Member State, or;
b. the applicant is not an investment firm,
reinsurer, management company of an institution for collective investments
in negotiable securities, bank, life insurer, non-life insurer or an entity
for risk acceptance having its registered seat in the Netherlands or another
Member State.
- 5. If the Dutch Central Bank has required
additional information as meant in paragraph 1, it shall inform the applicant
of the date on which it shall render its decision at the latest.
Article 1:106d No rejection of the application within the decision period
If the Dutch Central Bank has not rejected the application within the
decision period meant in Article 1:106b or 1:106c, the declaration of
no objection is deemed to be granted. Subsection 4.1.3.3 of the General
Administrative Law Act shall apply accordingly.
Article 1:106e Period to be set for an acquisition or enlargement of a
qualified shareholder’s participation
The Dutch Central Bank may set a period of time within which the acquisition
or enlargement of the qualified shareholder’s participation as referred
to in Article 3:95 or the act as referred to in Article 3:93 has to be
completed. This period may be extended by the Dutch Central Bank.
Article 1:107 Public register for financial enterprises (website)
- 1. There is a public register which is kept
by the register holder and that in any event is published on a website
suitable to this effect. The register holder shall ensure the proper functioning
of the register and shall perform the registration in and removal from
the register in such a manner that it is possible to deduce from the register
what kind of activities may be performed as of a certain moment by the
registered financial enterprises, including any limitations attached,
as well as the State in which they have their registered seat.
- 2. The register holder shall, without delay,
see to the registration of:
a. financial enterprises:
1° to which a licence has been granted pursuant to the present Act
or to which a dispensation has been granted as referred to in Articles
2:23, 2:54i, 2:55, 2:60, 2:65, 2:75, 2:80, 2:86, 2:92, 2:96, 3:5, 3:6,
3:7, 4:3, 5:26 or 5:81, insofar as it concerns a dispensation from Article
5:74, paragraph 1, or Article 5:79;
2° to which an exemption applies, if they have informed the supervisor
of their intention to provide the services concerned pursuant to a condition
attached to that exemption;
3° which are otherwise permitted pursuant to the present Act to conduct
their business or perform financial services from a branch office situated
in the Netherlands or by providing services to the Netherlands;
4° to which a supervisory status certificate has been granted;
5° on which a prohibition has been imposed pursuant to Articles 1:58,
paragraph 2, 1:58a, paragraph 2, 1:58b, paragraph 2, 1:58c, paragraph
3, 1:59, paragraph 2, 1:67, paragraph 1, 1:77, paragraph 1, third sentence,
4:4, paragraph 1, or 4:4a;
6° which are affiliated enterprises as referred to in Article 2:105;
7° to which the guarantee scheme referred to in Section 3.5.6 applies;
8° which are managed by management companies to which a licence or
a supervisory status certificate has been granted; these financial enterprises
shall be registered in the register together with the management company
that is managing them;
9° which have reported themselves as an investment company with variable
capital;
10° which have been reported in accordance with Article 2:81, paragraph
2, under (b); these shall be registered in the register together with
the provider or providers concerned;
11° which have notified the Authority for the Financial Markets pursuant
to Article 2:99 or 4:26 of their intention to conduct the business of
an investment firm operating as a systematic internaliser;
12° which have been reported in accordance with Article 2:97, paragraph
5, opening words and under (b); these shall be registered in the register
together with the investment firm concerned;
13° which wind up their business in accordance with Article 1:104,
paragraph 3, and;
14° to which the rules arising from the present Act do not apply in
conformity with Article 1:10, under (a);
b. market operators to which a licence or
dispensation has been granted pursuant to the present Act;
c. credit rating agencies to which a recognised
status has been granted pursuant to Article 3:57, paragraph 2.
- 3. Without prejudice to paragraph 1, the
register holder shall, without delay, see to the registration of:
a. the name and place of residence of the
representative in the Netherlands of an insurer operating from a branch
office in the Netherlands or providing services to the Netherlands;
b. the nature of the life insurance contracts
where it concerns life insurers which conduct their business in the Netherlands
by providing services, or the nature of the risks of non-life insurance
contracts where it concerns entities for risk acceptance, reinsurers or
non-life insurers which conduct their business in the Netherlands by providing
services;
c. the data that must be reported on the basis
of:
1° Chapter 5.3, on the understanding that such data must be registered
within one working day following the working day on which the register
holder received the report concerned, and with the exception of address
data of natural persons with a duty to disclose;
2° Article 5:25i, paragraph 2 or 5, including the time on which the
issuer has made the information public, and;
3° Article 5:60, with the exception of the address data of the parties
with a duty to disclose;
d. prospectuses approved under Article 5:9;
e. the names of the States which the Minister
has designated pursuant to Articles 2:6, 2:50, 2:54l and 2:66;
f. the Member States in which a registered
insurance broker is authorised to provide brokerage services and the names
of the natural persons who determine the policy of the broker;
g. the name of the insurer to which the authorisation
of a registered authorised agent or authorised sub-agent applies, and
the names of the natural persons who determine the policy of the authorised
agent or the authorised sub-agent, and;
h. the financial products in respect of which
a registered financial service provider may perform services pursuant
to the present Act, as well as the nature of the services concerned;
i. the market operator or the investment firm
that is not permitted, pursuant to a decision as referred to in Article
1:58c, paragraph 3, to make its facilities in the Netherlands available
to long-distance members or unit holders based in the Netherlands,
j. payment service agents and the branch offices
of a payment institution;
k. bidding announcements that are approved
on the basis of Articles 5:74 and 5:76 as well as public notifications
received by the Authority for the Financial Markets on the basis of rules
set out by or pursuant to Articles 5:25m, paragraph 6, and 5:76, paragraph
2;
l. payment service agents of electronic money
institutions having its registered seat in the Netherlands
- 4. Where applicable, it shall be stated upon
the removal from the register that the decision that has lead to that
removal is not yet final and binding.
Article 1:108 Five year period for public inspection of data in the public
register
- 1. The register holder shall keep the data
referred to in Article 1:107 available in the register for public inspection
free of charge for a minimum period of five years. On request, the register
holder shall issue extracts from the register to any party against payment
of the cost price.
- 2. Further rules may be set by Ministerial
Regulation with regard to the arrangement and operation of the register.
Article 1:109 [repealed on 01-07-2012]
Article 1:109a List of licensed regulated markets
The Authority for the Financial Markets shall keep a list of regulated
markets for which the Minister has granted a licence as referred to in
Article 5:26, paragraph 1, and shall send this list to the other Member
States and to the European Authority for Securities and Markets.
Article 1:109b Website of the Authority for the Financial Markets
- 1. The Authority for the Financial Markets
shall publish on its website, in a language that is customary in international
financial circles:
a. the information meant in Article 30 of
Commission Directive 2010/42/EU of 1 July 2010 implementing Directive
2009/65/EC of the European Parliament and of the Council as regards certain
provisions concerning fund mergers, master-feeder structures and notification
procedure (OJ L 176), and;
b. all actual legislation, administrative
procedures and other information which is of importance for lodging applications
for a licence for an institution for collective investments in negotiable
securities and the offering of units in an institution for collective
investments in negotiable securities.
- 2. The Authority for the Financial Markets
shall publish the information meant in paragraph 1, under (a), in the
form of a narrative description and a series of references or links to
source documents.
Article 1:110 Jurisdiction of the District Court of Rotterdam
- 1. If an appeal is lodged against a decision
on the basis of the present Act or if provisional relief is sought pursuant
to the present Act, the District Court of Rotterdam shall, in derogation
from Article 8:7 of the General Administrative Law Act, have jurisdiction.
- 2. Article 7:1 of the General Administrative
Law Act shall not apply with regard to a decision made pursuant to Chapter
5.1, Article 5:77, paragraph 1, or Article 5:81, paragraph 3, or in respect
of the provisions arising from Article 5:76, paragraph 2, or Article 5:80b,
paragraph 5, with the exception of a decision to impose an administrative
fine as referred to in Article 1:80.
- 3. In derogation from paragraph 1, the Trade
and Industry Appeals Tribunal (College van Beroep voor het bedrijfsleven)
shall have jurisdiction over appeals against decisions as referred to
in paragraph 2, with the exception of decisions to impose an administrative
fine.
Chapter 1.7 [reserved for future legislation]
Chapter 1.8 Remuneration for day-to-day policymakers in the event of support
measures
Article 1:112 Remuneration when support is given to a financial enterprise
- 1. If a financial enterprise obtains or has
obtained, in connection with the stability of the financial system, support
within the meaning of Article 107, paragraph 1, of the Treaty on the functioning
of the European Union, then the remuneration to be granted or to be paid
by that enterprise to its day-to-day policymakers over the period during
which such support is or has been obtained, as well as the remuneration
to be granted or to be paid to its day-to-day policymakers over the period
prior to the obtaining of support, as far as this remuneration was not
yet granted or paid on the moment on which the support started, shall
by operation of law:
a. be set at an amount of € 0 to the
extent that it relates to a variable remuneration in the sense that it
shall be granted, in full or in part, depending on whether certain targets
are reached or whether specific circumstances have occurred;
b. be set at a value which it had on the moment,
immediately prior to the moment that the support measure entered into
force, to the extent that it relates to the other parts of the remuneration,
on the understanding that an increase in percentages of those other parts
of the remuneration remain allowed insofar as those increases apply as
well on behalf of the employees of the enterprise involved.
- 2. A financial enterprise shall not grant
any remuneration and shall not pay any remuneration in violation with
paragraph 1.
- 3. The body charged with exercising supervision
over the policy and general state of affairs of an enterprise, shall watch
over the compliance with paragraph 2.
- 4. Stipulations (clauses) between financial
enterprises and its day-to-day policymakers that are in conflict with
the intentions of paragraph 1, are null and void.
- 5. If support is given to a group within
the meaning of Article 24b of Book 2 of the Dutch Civil Code or to a legal
person or partnership forming a part of such group, then the group company
standing on top of that group shall, for the purpose of paragraph 1 up
to and including 4, be regarded as the financial enterprise meant in those
paragraphs.
- 6. If a group company standing on top of
a group as referred to in paragraph 5 has its registered seat outside
the Netherlands, then the group company with the highest hierarchy within
the group that has its registered seat in the Netherlands shall, in derogation
from paragraph 5, be regarded as the financial enterprise meant in paragraph
1 up to and including 4.
Article 1:113 Participations equated with support to a financial enterprise
- 1. For the purpose of Article 1:112, paragraph
1, the following participations are equated with support to a financial
enterprise:
a. a shareholder’s participation of
the State of the Netherlands in connection with the stability of the financial
system in that enterprise;
b. if the financial enterprise forms a part
of a group as meant in Article 24b of Book 2 of the Dutch Civil Code:
a shareholder’s participation of the State of the Netherlands in
connection with the stability of the financial system in another group
company forming a part of that group.
- 2. The equation meant in paragraph 1 shall
end as soon as the breaking down of the shareholder’s participation
of the State of the Netherlands has started and the first alienation of
shares held by the State of the Netherlands has actually taken place.
| [prior Chapter] |