Short Reads

No exemption to the prohibition of market manipulation

No exemption to the prohibition of market manipulation

No exemption to the prohibition of market manipulation

06.04.2017 NL law

Market abuse cases are relatively rare in the Netherlands. Recently, the Trade and Industry Appeals Tribunal (College van Beroep voor het bedrijfsleven) confirmed that the Netherlands Authority for the Financial Markets (Autoriteit Financiële Markten, the "AFM") rightfully concluded that a trader manipulated the market by securing the price of financial instruments to an abnormal or artificial level.

The judgment of the Tribunal of 22 February 2017 can be found here (in Dutch only).

Background

A trader participated in 44 auctions to buy shares of small cap fund New Sources Energy N.V. (ticker: NSE, "NSE"). The auction took place twice a day. Rule in the auction was that the auction price would be the price for which the highest number of shares could be traded. The trader entered his bid in the auction seconds before the close of the auction for a high price. In 37 of the 44 auctions, for the trader succeeded in increasing the price by an average of 9.9%. Interestingly, the investors account of the trader was linked to the share price of NSE. The higher the share price on a day, the higher the credit would be that the trader could use with its bank.

The AFM imposed a fine of €100,000 on the trader for violating the prohibition on market manipulation. The District Court of Rotterdam upheld the decision of the AFM.

The Tribunal judgment

The Tribunal also upheld the decision of the AFM that it was the intention of the trader to manipulate the share price, since a higher share price would lead to the availability of a higher credit amount with the trader's bank. The fact that the trader did not otherwise profit from his actions, is irrelevant. The trader could not sufficiently prove that his actions were legitimate and in accordance with the use of accepted market practices.

The judgment illustrates that there is a higher risk for traders who cannot provide a convincing explanation of their behavior that meets the open norms of manipulative behavior. This is even more the case if this trader profits from his behavior. The judgment also shows that, although not statutory required, the intent of a person can be relevant to assess whether a trader manipulated the market and that relying on exemptions is difficult.

Team

Related news

03.04.2020 NL law
COVID-19 and the Financial Markets

Short Reads - As COVID-19 spreads across the globe, companies face various legal issues related to the disease and its spread. These issues result in disruption to business, alongside the related regulatory and contractual implications. The crisis is severely affecting financial institutions and financial markets too. Both the Dutch and European financial regulators are closely monitoring the situation given the continuing impact of the COVID-19 pandemic on the financial markets.

Read more

31.03.2020 BE law
Will the COVID-19 pandemic have an impact on financial covenants?

Short Reads - In the Benelux and wider European market, many leveraged credit agreements still include certain financial covenants (including leverage covenants, interest and cashflow covers, etc.). All of these covenants rely (directly or indirectly) on the operational performance of a company (EBITDA). As it is expected that the coronavirus outbreak will negatively affect the operations of companies in a wide variety of sectors, any consequent breaches of financial covenants are likely inevitable.

Read more

18.03.2020 EU law
Stibbe: COVID-19

Short Reads - In view of the developments concerning the coronavirus, we hereby inform you of our business operations and the measures we take to ensure the continuity of our services to you.

Read more

21.02.2020 NL law
Podcast: Data en financiële instellingen

Short Reads - In deze podcast praten Roderik Vrolijk en Frederiek Fernhout van Stibbe in Amsterdam en Joran Iedema van Stibbe StartsUP-deelnemer Dyme over Fintech, PSD2 en het gebruik van data door financiële instellingen. Aan de ene kant biedt nieuwe regelgeving zoals PSD2 nieuwe mogelijkheden, aan de andere kant neemt de regeldruk en het toezicht op bescherming van persoonsgegevens toe.

Read more

This website uses cookies. Some of these cookies are essential for the technical functioning of our website and you cannot disable these cookies if you want to read our website. We also use functional cookies to ensure the website functions properly and analytical cookies to personalise content and to analyse our traffic. You can either accept or refuse these functional and analytical cookies.

Privacy – en cookieverklaring