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Frequently asked questions

Here you can find frequently asked questions (faqs). At the moment, there are only a few faqs available in the English language.

 
 

Subject

 
 
 
 
  • What should the responsibility statement in the prospectus look like? 

    Pursuant to item 1.2 of Annexes Iand equivalent items of other relevant annexes of the Prospectus Regulation (Commission Regulation (EC) Nr. 809/2004), a prospectus must contain a statement in which responsibility is taken for the entire contents of the prospectus.

    This statement must be a literal reproduction of the wording included in item 1.2 and the AFM does not allow any variations in the responsibility statement.

    The AFM requires the responsibility statement to be provided in the following form: (…) declares that, having taken all reasonable care to ensure that such is the case, the information contained in the prospectus is, to the best of their knowledge, in accordance with the facts and contains no omission likely to affect its import.

    The AFM did not permit the inclusion of the following responsibility statements in prospectuses:

    "The issuer declares that no information has been omitted that would change the scope of what is included in this Prospectus in any material respect."

    "The issuer is not aware of data omitted which could affect the import of this Prospectus.”

    "The initiator is responsible for the preparation of this Prospectus."

  • What should the so-called ‘third party statement’ in the prospectus look like? 

    Pursuant to various items included in the annexes to the Prospectus Regulation (Commission Regulation (EC) Nr. 809/2004), such as item 23.2 of Annex I and item 16.2 of Annex IV, a prospectus may contain a statement relating the to any information included in the prospectus obtained from third parties.

    This so-called ‘third party statement’ should state: “The information has been accurately reproduced and as far as the issuer is aware and is able to ascertain from information published by that third party, no facts have been omitted which would render the reproduced information inaccurate or misleading.” Needless to say, the third party information that the statement is referring to must be clearly identified.

    The AFM does not allow substantive changes to this statement if such changes are inconsistent with the responsibility statement included in the prospectus pursuant to item 1.2 of Annex I of the Prospectus Regulation.

    The following text relating to the ‘third party statement’ was not permitted AFM due to the fact that the bold text is not consistent with the responsibility statement:
    “Although we believe these sources are reliable, as we do not have access to the information, methodology and other bases for such information, we have not independently verified the information and therefore cannot guarantee its accuracy and completeness.

  • What is meant with “annexed to the prospectus” in, for instance, item 9 of annex XXV of the prospectus regulation? 

    According to, among others, item 9 of annex XXV of the Prospectus Regulation (Regulation (EC) No 809/2004), an issuer must disclose information concerning its financial condition and operating results if the annual reports, presented and prepared in accordance with Article 46 of Directive 78/660/EEC and Article 36 of Directive 83/349/EEC for the periods covered by the historical financial information, are not included in or annexed to the prospectus.

    ‘Annexed to the prospectus’ means that the entire annual reports may be included in the prospectus in its original format. The annual reports will then form part of the prospectus. Consequently, the responsibility statement of item 1.2 of annex XXV of the Prospectus Regulation must also regard to this financial information.

  • Is there a legal obligation to publish a supplement to a prospectus during “as-if-and-when-issued-trading”? 

    Pursuant to article 5:23, paragraph 1 of the Financial Supervision Act (Wet op het financieel toezicht, Wft), a supplement must be published if a significant new factor, material mistake or inaccuracy relating to the information included in the prospectus arises or is noted, which is capable of affecting the assessment of the securities between the time when the prospectus is approved and the final closing of the offer to the public or the time when trading on a regulated market begins, whichever occurs later.

    “As-if-and-when-issued-trading” makes it possible to trade in securities listed on Euronext Amsterdam before they have been issued. Generally, securities will be issued three days after the first day of admission to trading on a regulated market. The moment of admission to trading on a regulated market is the first day of the “as-if-and-when-issued-trading”. There is no legal obligation to publish a supplement to a prospectus if a significant new factor or material mistake or inaccuracy relating to the information included in the prospectus arises or is noted after trading has begun on a regulated market and the final closing of the offer to the public, which is typically the case.

    It is important to note that article 5:25i Wft is applicable with respect to the publication of inside information during the “as-if-and-when-issued-trading” period in order to prevent market abuse.

  • Does the Regulation on credit rating agencies (EC/1060/2009) have any consequences for prospectusses? 

    Yes. If reference is made in the prospectus to one or more credit ratings, the prospectus must include clear and prominent information stating whether or not such credit rating or credit ratings are issued by a credit rating angency established in the European Union and registered under the regulation on credit rating agencies. This requirement can be found in article 4.1 of the regulation and applies as of 7 December 2010.

  • How can I be sure that the application for approval or a new draft has been received by the AFM in good order? 

    Application for approval
    After your application for approval has been sent to Service.Prospectus@afm.nl, you will receive an automatic confirmation of receipt from the AFM. In case you did not receive such confirmation, please contact the secretariat of the Securities Offerings and Takeover Bids Division at +31-(0)20-797 2896. An application for approval may not exceed 9 MB.

    New draft(s)
    After a new draft has been sent to the AFM, please contact the person handling the relevant transaction in order to be sure that the new draft has been received in good order.

    More information regarding the application for approval can be found here:
    Procedure for requesting approval.

     

  • I would like to obtain approval of a prospectus; what documents should I submit together with my application for approval? 

    Please see the Procedure for requesting approval for an explanation of how an application for approval should be submitted, what documents to include and what the procedure will be.

  • What is the maximum size of emails with attachments that the AFM server can handle? What is the maximum size of pdf documents that the AFM server can handle? 

    The maximum size of an email sent to service.prospectus@afm.nl is 9 MB and such email can then be opened and read by the relevant person within the Securities Offerings Division. The maximum size of an email sent directly to the individual email address of a person within the Emissions team is 5 MB. A PDF document should never exceed 9 MB. See also Procedure for requesting approval.

  • What are the costs for making an application for approval of a prospectus? 

    The costs for making an application for approval of a prospectus are set forth in the Besluit bekostiging financieel toezicht en de Vaststelling bedragen voor eenmalige toezichthandelingen (Decree regarding fees for financial supervision as well as for the determination of amounts due for specific acts of financial supervision). For an informal summary of the various fees involved please see: Laws and Regulations.

    We note that the regulation quoted above requires the AFM to charge you the relevant fee as soon as the AFM has started the review of your application for approval of the prospectus and also in case you decide to withdraw your application for approval or when the AFM decides to cease handling your application for approval.

  • What exactly does an approval of a prospectus by the AFM mean? 

    An approval of a prospectus by the AFM means the positive decision by the AFM at the outcome of the scrutiny for the completeness of the prospectus, including the consistency of the information given and its comprehensibility. In this context ‘completeness’ means that all topics on which information has to be provided, especially pursuant to the applicable Annexes to the Prospectus Regulation, are being addressed in the prospectus. For more information on these Annexes, please see Procedure for requesting approval. An approval of a prospectus by the AFM does not mean that the AFM has verified whether or not the information included in the prospectus is in compliance with other rules and regulations or whether or not the information included in the prospectus is factually correct. An approval of a prospectus by the AFM also does not mean that the AFM has looked into the economic merits (value or soundness) of the securities offered. An approval is not an investment advice.

  • What is important to note when incorporating information by reference in the prospectus?  

    The regulations in relation to prospectuses allow for information to be incorporated by reference. The aim hereof is to simplify and reduce the costs of drafting a prospectus. However, as set out in Consideration 30 of the Prospectus regulation ((EG) Nr. 809/2004), this aim should not be achieved to the detriment of other interests the prospectus is meant to protect.  Article 28.5 of the Prospectus regulation requires that the parties drafting the prospectus endeavour not to endanger investor protection. All information should be comprehensible and accessible to the investor.

    The AFM has noted that in many instances the comprehensibility and accessibility has been at risk. Using too many separate documents causes fragmentation. In addition, it is often not easy to obtain the separate documents.

    The AFM will pay particular attention to compliance with Article 28.5 of the Prospectus regulation in order to limit the number of separate documents and improve the accessibility of the information. In particular through clear identification of and reference to the separate documents. In addition, the investors should be able to easily obtain the documents.

    The information incorporated by reference is as important as the information in the “main document” and should be equally accessible and comprehensible.

  • In which language should a prospectus be drawn up that will be approved by the AFM and/or will be published in connection with an offer of securities to the public in the Netherlands and/or the admission to trading of securities on a regulated market in the Netherlands? 

    A prospectus must comply with the language requirements applicable in the member state of the European Union where the offer or admission to trading takes places.

    For an offer to the public or admission to trading in the Netherlands, the prospectus must be drawn up in either Dutch or English. Please note that the language requirements apply to the entire prospectus, including any documents incorporated by reference.

    Approval by the AFM
    A prospectus drawn up for an offer to the public or admission to trading in a member state of the European Union other than the Netherlands that will be approved by the AFM must be drawn up in Dutch or in English. De AFM does not approve prospectuses drawn up in any other languages. The prospectus must also comply with the language requirements of the member state of the European Union where the offer or admission to trading will take place. If the issuer wishes or is required to make the prospectus available in a language other than the language in which the approved prospectus is drawn up, then the issuer must use a translated version of the approved prospectus in that member state. The AFM will passport the original approved prospectus together with the translated version of such prospectus to the relevant competent authority. Please note that the entire prospectus, i.e. including all documents incorporated by reference must be translated. The issuer itself is responsible for a correct translation of the prospectus. The AFM does not review the translation.

    Approval by the competent authority of another EU member state
    There are situations in which a prospectus drawn up for an offer or admission to trading in the Netherlands will be approved by the competent authority of another EU-member state. In such cases, the prospectus must comply with the language requirements in the Netherlands, i.e. the prospectus must be drawn up in either Dutch or English. However, if the original version of the approved prospectus  is drawn up in a language other than Dutch or English, then the entire prospectus (including all documents incorporated by reference) must be translated into Dutch or English. The approved prospectus together with the translation(s) must be passported by the relevant competent authority to the AFM. The issuer itself is responsible for a correct translation of the prospectus. The AFM does not review the translation.

    An overview of the language requirements applicable in the member states of the European Union can be found in the document  ‘Overview of language requirements for the vetting of prospectus across the EU and a summary of CESR Members requirements regarding the translation of the Summary Prospectus’ published on the European Securities and Markets Authority (ESMA) website (formerly known as CESR) (www.esma.europa.eu).

  • What information should be included in the prospectus on the basis of the various sections in the Annexes to the Commission Regulation implementing the Prospectus Directive ((EC) No. 809/2004) with regard to the ‘business overview’? 

    On the basis of section 6 of Annex I, ‘business overview’, the prospectus should include a description of the principal activities of the issuer (section 6.1.1 of Annex I). This section should not be confused with section 21.2.1 of Annex I, which requires a description of the objects and purposes of the issuer as defined in its memorandum and articles of association. The objects of an enterprise as defined in its memorandum and articles of association are normally formulated in general terms. The objects of an issuer as defined in its memorandum and articles of association will therefore not necessarily be the same as the actual activities of the enterprise.

    On the basis of section 6, the prospectus should also include a description of the principal markets in which the issuer operates. This requirement is for instance stated in Annexes I (section 6.2), IV (section 6.2) and XI (section 5.1.3). For Annexes IV and XI, a brief description will suffice. The information required here is a general description of the markets themselves, not a description of the issuer’s activities in these markets. For example, this information may include the number of players in a particular market.

    There also appear to be doubts regarding exactly what information should be included in the prospectus on the basis of the last subsection of section 6 of Annex 1, section 6.5. The intention of this section is that the issuer should state the factual information on which its statements with regard to its competitive position are based. For instance, the information sources used should be stated.

  • How long does it take for the AFM to send a ‘passport’ for the notification of the competent authority of another member state of the EEA of the approval by the AFM of a prospectus?  

    If a request for the AFM to send a ‘passport’ for the notification of the competent authority of another member state of the EEA of the approval by the AFM of a prospectus (a request to send a ‘passport’) is made before the approval of the prospectus by the AFM, the AFM is required by law to send the passport within one working day after the approval of the prospectus. If the request is made after the AFM has approved the prospectus, the AFM is required by law to send the passport within three working days after the approval of the prospectus. In practice, the AFM aims to send all passports on the same day on which it approves the prospectus.

    For completeness sake we point out that the competent authorities of certain member states of the EEA require that a translation of the summary be submitted together with the passport. For more information see ‘Overview of language requirements for the vetting of Prospectus across the EU and a summary of CESR Members requirements regarding the translation of the ‘Summary Prospectus’’ that can be found on the website of the European Securities and Markets Authority (ESMA), formerly known as CESR, (www.esma.europa.eu).

  • How long does it take for the AFM to send a ‘passport’ for the notification of the competent authority of another member state of the EEA of the approval by the AFM of a prospectus? 

    If a request for the AFM to send a ‘passport’ for the notification of the competent authority of another member state of the EEA of the approval by the AFM of a prospectus (a request to send a ‘passport’) is made before the approval of the prospectus by the AFM, the AFM is required by law to send the passport within one working day after the approval of the prospectus. If the request is made after the AFM has approved the prospectus, the AFM is required by law to send the passport within three working days after the approval of the prospectus. In practice, the AFM aims to send all passports on the same day on which it approves the prospectus.

    For completeness sake we point out that the competent authorities of certain member states of the EEA require that a translation of the summary be submitted together with the passport. For more information see ‘Overview of language requirements for the vetting of Prospectus across the EU and a summary of ESMA Members requirements regarding the translation of the ‘Summary Prospectus’’ that can be found on www.esma.europe.eu.

  • How do I find out if the passporting of the prospectus to the competent authority of another member state of the EEA was successful? 

    The AFM will inform you by email that the passport was sent. However, you have to contact the competent authority of the relevant member state yourself to verify that the passport was actually received by it.

  • Does the AFM maintain a public register of all prospectuses received by it that were approved by a competent authority of another member state of the EEA and passported to the AFM? 

    Yes. This register can be found via the AFM website.

  • Where can I find the register of prospectuses approved by the AFM? 

    The register of prospectuses approved by the AFM can be found on the AFM Website under Public database of approved prospectuses, where you can also download the approved prospectuses.

  • Are there any exemptions or exceptions from the interdiction to offer any securities in the Netherlands to the public or to admit to trading on a regulated market that is either located or functioning in the Netherlands without making available to the public a prospectus approved by a competent authority (all as meant in article 5:2 Wft (Law on the financial supervision)?  

    In principle, no prospectus needs to be approved by a competent authority and made available to the public if one or more of the exceptions set forth in articles 5:3 and 5:4 of the Wft apply or if one or more of the exemptions sets forth in the ‘Vrijstellingsregeling Wft’ (exemption regulation Wft) apply. Pursuant to these articles and this regulation it is i.a. not necessary to obtain the approval of a prospectus from a competent authority and make it available to the public in case of:

    • An offer of securities addressed to fewer than 150 natural or legal persons (it is not relevant how many persons actually purchase the securities offered, relevant is the number of persons to whom the offer is made).
    • An offer of securities that can only be acquired for a total consideration of at least EUR 100.000 per investor, for each separate offer.
    • An offer of securities whose denomination per unit amounts to at least EUR 100.000.
    • An offer of securities with a total consideration of less than EUR 100.000.
    • Shares or certificates of shares representing, over a period of 12 months, less than 10 per cent of the number of shares or certificates of shares of the same class already admitted to trading on the same regulated market located or functioning in the Netherlands.
    • Securities offered in connection with a takeover by means of an exchange offer, provided that a document is available containing information which is regarded as being equivalent to that of the prospectus.
    • Securities offered by an association or institution (vereniging of instelling) without the intention of making a profit and with the intention of obtaining funds to realize its non-commercial aims.
    • The total value of the securities offered is less than EUR 2.500.000, calculated over a period of 12 months and provided the offer is in compliance with sub clause 3 and sub clause 4 of article 53 of the ‘Vrijstellingsregeling Wft’ (exemption regulation Wft).

  • Can the AFM grant dispensations from the obligation to include certain information in a prospectus? How should a request for such dispensation be submitted? 

    Under limited circumstances, it is possible to omit information from a prospectus that is required pursuant to Chapter 5.1 Wft and the Prospectus Regulation. The omission of such information requires the submission of a written request to the AFM. Please see for a detailed description of the procedure relating to such requests the link below.

    Procedure for making a request for dispensation

  • My question is not listed above. Who should I contact?  

    See Contact for the contact details of  persons within the AFM that you can ask questions in relation to the supervision of offering of securities. You can also pose your questions through: service.prospectus@afm.nl