Procedure for making a request for the dispensation from the obligation to include certain information in a prospectus

Pursuant to article 5:18 paragraph 3 Wft, the AFM can grant dispensation from the obligation to include certain information in a prospectus that is required under the Wft or the Prospectus Regulation, if:

1. disclosure of such information would be contrary to the public interest;
2. disclosure of such information would be seriously detrimental to the issuer, and the omission would not be likely to mislead the public with regard to facts and circumstances essential for an informed assessment of the issuer, the offeror, the person asking for the admission of securities to trading on a regulated market, or, where appropriate, the guarantor, and of the rights attached to the securities to which the prospectus relates; or
3. such information is of minor importance, is intended only for a specific offer of securities to the public or admission of securities to trading on a regulated market and is not such as will influence the assessment of the financial position and prospects of the issuer, offeror, person asking for the admission of securities to trading on a regulated market, or, where appropriate, the guarantor.

An issuer that wishes to obtain dispensation under article 5:18 paragraph 3 Wft must file a formal written request with the AFM for the attention of the Securities Offerings & Takeover Bids Division. The written request must meet the requirements set out in article 4:2 of the General administrative law act (Algemene wet bestuursrecht), which requires that the request must be signed by the applicant and include the following information:

• the name and address of the applicant; 
• the date of the request; 
• the legal basis for the dispensation; and
• all information and documents necessary for the AFM to reach a decision regarding the dispensation, including any documents which the applicant does not have in its possession but that the applicant can be reasonable expected to provide.

Please note that the reason for the request for dispensation must be as comprehensive as possible. The AFM will not consider a request for dispensation if the documentation submitted in connection with the request provides the AFM with insufficient information to reach a decision regarding the request. In such cases, the AFM will inform the person requesting the dispensation that this is the case and provide the applicant with the opportunity to supplement its request within the time frame provided by the AFM.

The AFM can impose conditions when granting dispensation from the obligation to include certain information in a prospectus pursuant to article 1:105 second paragraph Wft and article 10 paragraph 9 Financial Supervision Act Implementing Regulation (Uitvoeringsregeling Wft).

The AFM can withdraw its decision to grant dispensation from the obligation to include certain information in a prospectus if (i) it turns out that incorrect or incomplete documents were submitted by the applicant and (ii) knowledge thereof would have led to the AFM reaching a different decision in relation to the dispensation and/or if it turns out that circumstances or facts were not included in the request for dispensation that would have led the AFM to decline to grant the dispensation.

An interested party (belanghebbende) can file an appeal against the decision of the AFM relating to a dispensation from the obligation to include certain information in a prospectus with the Trade and Industry Appeals Tribunal (College van Beroep voor het bedrijfsleven).