Administrative fine imposed on Mr Van der Bruggen for de facto management of a failure to publish price-sensitive information in due time on the part of Imtech

^{1) The AFM has declared the objection against the fine unfounded while supplementing its reasons.} 

On 20 July 2012, Imtech failed to publish price-sensitive information concerning a contract that had been signed for the (further) realisation of the Adventure World Warsaw (AWW) amusement park. This means that Imtech failed to comply with its obligation to publish price-sensitive information (Section 5:25i, second subsection, Wft).

Publication of price-sensitive information can have an impact on the price of financial instruments or financial instruments derived there from. An issuing institution is obliged to publish this information as soon as possible so that all investors are aware of and are able to base investment decisions on the same information. It is therefore important that investors are provided with full, correct and accessible information. Transparent provision of information is very important for the efficient price-setting of financial instruments.

Imtech was aware on 20 July 2012 that AWW had failed to comply its contractual payment obligation on several occasions. What is more, AWW had been unable to acquire the intended land and the amusement park was experiencing problems arranging for financing.

Imtech did produce a press release on 20 July 2012 concerning the contract with AWW, but it only published a select section of the price-sensitive information, inter alia concerning the value of the contract and Imtech's role in the project. Imtech failed, however, to publish the other price-sensitive information concerning the contract without delay.

The AFM considers that Imtech has not demonstrated that it had a legitimate interest in postponement of publication of this information. Imtech should also have been aware that postponement could have been misleading.

De facto management by Mr Van der Bruggen

Mr Van der Bruggen was fully aware of all facts and circumstances and the publication of the press release on 20 July 2012. As Chief Executive Officer, he was one of the two directors at Imtech from 01 May 1999 to 03 April 2013. He was authorised and obliged to intervene. He failed to do so, however. The AFM therefore designates Mr Van der Bruggen as de facto manager of the offence committed by Imtech.

Amount of the fine

The AFM considers the fine of €500,000 appropriate in view of the offence. The AFM took account of Mr Van der Bruggen's financial position when it determined the amount of the fine. The AFM also took account of the fact that the publication of the press release on 20 July 2012 violated the obligation of immediate publication of price-sensitive information (Section 5:25i, second subsection, Wft) and the ban on market manipulation (Section 5:58, first subsection, opening lines and part d, Wft). A fine was imposed on Mr Van der Bruggen for both offences. The AFM also considers it important that Mr Van der Bruggen has returned his variable remuneration for 2010 and 2011 in the amount of €1,500,000 for the settlements with investors. The AFM therefore also took account of the amount handed in by Mr Van der Bruggen when it determined the amount of the fine.

Interested parties can submit the AFM's decision to the courts for review.

If you have questions or complaints, you can contact the AFM's Financial Markets Information Line: 0800-5400 540 (free of charge).