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Issuers obligated to disclose their home Member State - Disclosure Procedure For Issuers of securities

Following the implementation of the Transparency Directive Amending, all issuers of securities admitted to trading on a regulated market within the European Union are obligated to disclose their home Member State before 27 February 2016. In this publication, the AFM explains the disclosure procedure.

New legislation

The home Member State is an important starting point for determining under which competent authority an issuer of securities falls and in which country the registers with respect to transparency obligations shall have to be consulted. The obligation is included in Section 5:25a (new) of the Dutch Financial Supervision Act (FSA). Several categories of issuers can be distinguished.

Issuers with registered office in the Netherlands who issue debt securities < EUR 1 000 or shares (category I)

For issuers with registered office in the Netherlands who issue debt securities, the denomination per unit of which is less than EUR 1,000 or who issue shares, the Netherlands is the home Member State. These issuers should disclose this to: the AFM; and the competent authorities of all Member States in which securities are admitted to trading on a regulated market.

The issuing institution must effect its notification to the AFM by filling out the form that has been published by the European Securities and Markets Authority (ESMA) and sending such form by email to HMS_Registration@afm.nl.

In addition, the respective issuers must publish a press release with regard to their home Member State. Such press release should also be sent to HMS_Registration@afm.nl (pdf-format). The obligation to publish a press release and to simultaneously send it to the AFM is not applicable to issuers of securities that are admitted to trading on only one regulated market located in another Member State (Section 5:25m paragraph 9 FSA).

Examples:

  1. For an issuer with registered office in the Netherlands who issues shares, which shares are admitted to trading on Euronext Amsterdam, the home Member State is the Netherlands. This issuer must disclose this to the AFM through the ESMA form and must publish a press release with regard to its home Member State and simultaneously send such press release to the AFM.

  2. For an issuer with registered office in the Netherlands who issues shares, which shares are solely admitted to trading on the regulated market of the Frankfurt Stock Exchange (Frankfurter Wertpapierbörse), the home Member State is the Netherlands. This issuer must disclose this to the AFM and the German regulator (the BaFin) through the ESMA form. Since the shares are solely admitted to trading on the Frankfurt Stock Exchange, this issuer does not have the obligation to publish a press release in the Netherlands and simultaneously send it to the AFM.

Other issuers (category II)

Issuers who do not fall under category I, must disclose their home Member State to:

  • the competent authority of the Member State where they have their registered office (only if these issuers are incorporated in the EU)
  • the competent authority of the home Member State
  • the competent authorities of all Member States in which the securities are admitted to trading on a regulated market

Issuers who fall under category II and who have to notify the AFM can do this by filling out the ESMA form and by sending such form by email to HMS_Registration@afm.nl.

In addition, the respective issuers, insofar as the Netherlands is their home Member State, must publish a press release and send such press release in pdf-format to HMS_Registration@afm.nl. The obligation to publish a press release and send this to the AFM is also applicable to issuers with another home Member State whose securities are admitted to trading on a regulated market located in the Netherlands and not on a regulated market located in  or functioning in another Member State (Section 5:25q FSA). 

The obligation to publish a press release and to simultaneously send such press release to the AFM is not applicable to issuers of securities that are admitted to trading on only one regulated market located in another Member State  (Section 5:25m paragraph 9 FSA).

Several issuers that fall under the scope of category II have made a choice of home Member State and have already communicated such choice to the relevant competent authorities prior to 27 November 2015. Pursuant to Section 5:25a paragraph 3 (new) FSA, these issuers must now again notify the competent authorities. A notification to the AFM can be effectuated by using the ESMA form and sending it by email to HMS_Registration@afm.nl. These issuers have no obligation to publish a press release regarding their home Member State, unless they choose another home Member State after 27 November 2015.

Examples:

  1. An issuer with registered office in the United States of America who issues shares, which shares are admitted to trading on Euronext Amsterdam and the regulated market of the Frankfurt Stock Exchange (Frankfurter Wertpapierbörse), can choose the Netherlands or Germany as its home Member State. In the event that the Netherlands is chosen as home Member State, this must be disclosed to the AFM and the German regulator (the BaFin) through the ESMA form. In addition, a press release must be published and simultaneously sent to the AFM.

  2. For an issuer with registered office in Germany who issues shares, which shares are solely admitted to trading on Euronext Amsterdam, Germany is the home Member State. This issuer must disclose this to the German regulator (the BaFin) and the AFM through the ESMA form. Since the shares are solely admitted to trading on Euronext Amsterdam, this issuer is obligated to publish a press release and simultaneously send such press release  to the AFM.
     
  3. An issuer with registered office in the United States of America who issues shares, which shares are admitted to trading on Euronext Amsterdam and the regulated market of the Frankfurt Stock Exchange (Frankfurter Wertpapierbörse), has chosen the Netherlands as its home Member State and disclosed this prior to 27 November 2015. This issuer must again disclose this to the AFM through the ESMA form, but is not obligated to publish a press release

Publication date

The AFM requests issuers to publish and disclose their home Member State to the public and the relevant competent authorities before 27 February 2016.

If issuers have any questions regarding the above subjects, they may contact the business advice centre through ondernemersloket@afm.nl.

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