Fines imposed on Fortis by AFM not upheld
On 14 February 2014, the Trade and Industry Appeals Tribunal (CBb) reversed during appeal proceedings two administrative fines imposed by the Netherlands Authority for the Financial Markets (AFM). The fines of €144,000 each were imposed on Ageas SA/NV, formerly Fortis SA/NV (with its registered office in Brussels), and Ageas N.V., formerly Fortis N.V. (with its registered office in Utrecht).
The AFM imposed the fines in 2010 for failure to publish price-sensitive information on time. Fortis published information in a press release (trading update) on 21 September 2007 concerning the possible impact of its exposure to subprime investments on its income statement. The AFM was of the opinion that in that connection Fortis failed to provide insight into the nature and extent of the exposure to subprime investments. This meant that, according to the AFM, investors were not sufficiently able to estimate the risks inherent in Fortis' subprime investments and the possible impact thereof on Fortis' value in the long term. The AFM's position was not upheld by the CBb.
The CBb ruled on the 14 February 2014 that the AFM failed to sufficiently substantiate that Fortis withheld price-sensitive information. Fortis' risk assessment at that time was not unreasonable. The CBb considers that this is also evident from the fact that the directly involved Belgian regulator approved the trading update. The Belgian regulator was aware of the content of Fortis' subprime portfolio. The CBb rules on the basis thereof that the AFM's fines were imposed without justification.
The AFM has removed the previous press releases and the decisions to impose a fine from its website. It takes into account this judgment of the CBb in its practical supervision (ECLI:NL:CBB:2014:52).
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