On 9 February 2017, the Dutch Minister of Finance, Jeroen Dijsselbloem, sent a letter to parliament regarding the progress of the Dutch implementation of the Market Abuse Regulation (Regulation No. 596/2014) (the “MAR”)
Article 17 of the MAR obliges issuers to publish inside information as soon as possible, while paragraph 4 thereof allows postponement of publication under certain conditions. Following postponement, the issuer must immediately notify its supervisory authority that it has utilised the possibility of postponing information, along with a written explanation of how the postponement conditions were met. However, Member States have the option to require such a written explanation only upon the supervisory authority’s request. In his letter to parliament, Minister Dijsselbloem indicated that in practice issuers will very likely use the possibility of postponement frequently and for innocuous purposes. Accordingly, in order to prevent the Autoriteit Financiële Markten (the “AFM”) from processing a multitude of postponement explanations without there being a direct reason to investigate further, the Netherlands will utilise the option to require an explanation only upon the request of the AFM. The proposed decree on implementation of the MAR includes a provision clarifying that the written explanation must only be provided if requested by the AFM. This provision will be included in a new article 2 in the Decree on Market Abuse Wft (Besluit Marktmisbruik Wft).
Article 19 of the MAR contains the obligation for “persons discharging managerial responsibilities” of an issuer to notify the issuer’s supervisory authority of transactions relating to shares or debt instruments of such issuer. Article 19(3) provides that the issuer should ensure that such information that is made public promptly and no later than three business days after the transaction. This article also provides for the possibility for each Members State to require its supervisory authority to publish that information. The Netherlands has, in line with the current practice, decided to utilise such option such that all transaction notifications may be accessed from one site, which is deemed beneficial from a transparency point of view. A new article 3 in the Decree on Market Abuse Wft (Besluit Marktmisbruik Wft) will therefore provide that an issuer is not obligated to publish information that is notified in accordance with Article 19(1) of the MAR. The proposed implementation decree furthermore provides that information that is notified to the AFM pursuant to Article 19 will be included in the AFM’s public register.