Doing Business in the Netherlands 2012 - American Chamber of ...

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trading, such prospectus must be approved by the AFM or by the relevant competent EEA supervisory authority. The FSA and lower regulations stemming from the FSA contain several grounds for exemption from the prospectus requirement (e.g., offerings of securities with a consideration lower than EUR2.5 million, which limit shall be calculated over a period of twelve months, offerings targeting exclusively “qualified investors” (gekwalificeerde beleggers), offerings to less than one hundred (legal) persons in the Netherlands who are not “qualified investors,” offerings of securities with a minimum consideration per investor/minimum denomination per security of EUR50,000 10 ). Once a prospectus has been approved by the competent supervisory authority of an EEA member state, a simple notification by this supervisory authority to the competent authority of another EEA member state is in principle sufficient for the issuer to be allowed to offer the securities at hand in such other member state. 22.2.3 Public Offers Pursuant to the FSA, it is prohibited to make a public takeover bid for securities that are listed on a regulated market in the Netherlands unless an offering document is made available by the bidder in the Netherlands prior to such offer. This offering document must meet certain specific criteria and must be approved by the AFM or a competent supervisory authority of another EEA member state. In principle, any (legal) person who, acting alone or in concert, acquires a participating interest of 30% in a public company whose shares are admitted to trade on a regulated market in the Netherlands shall make a public takeover bid. 22.2.4 Investment Services and Markets in Financial Instruments Investment firms (beleggingsondernemingen, e.g., brokers, dealers, “market-makers,” financial advisers and portfolio managers) must 10 Please note that this amount is expected to be increased to EUR100,000, as of 1 January 2012. 238 Baker & McKenzie
Doing Business in the Netherlands 2012 have a license to provide their services (referred to as “investment services”) in the Netherlands. To obtain such license, investment firms must comply with certain financial, administrative and organizational requirements. The (daily) policymakers of investment firms must also pass certain integrity and expertise tests. The requirements that investment firms must fulfill are quite elaborate. Investment firms are closely monitored by the AFM. Furthermore, investment firms are obliged to classify 11 their clients prior to the provision of any investment services to these clients. Based on such classification, different regimes apply, notably in respect of the level of protection and pre-contractual information which must be given to clients. Pursuant to the best execution rules introduced by the Markets in Financial Instruments Directive (“MiFID”), investment firms are required to draft an execution policy describing, for each type of financial instruments, the procedures and arrangements they have in place with a view to providing best execution to their clients. Under the MiFID rules, investment firms (including portfolio managers) must implement (and monitor regularly) adequate measures and procedures to prevent and manage conflicts of interest. Investment firms must inform their clients in respect of such measures and procedures. EEA-based investment firms holding a license to offer their services in another EEA member state, may offer their services in the Netherlands after due notification to the AFM by the supervisory authority of that EEA member state. If all notification requirements are met, such investment firms may offer their services either through a branch office in the Netherlands, or “cross-border” (please note that the majority of Dutch rules governing the conduct of business in the Netherlands will still apply to branch offices located in the Netherlands). 11 Clients may be classified as either “professional client,” “eligible counterparty,” or “non-professional client.” Baker & McKenzie 239
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Editorial Contributions Robert van
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Innovative ways to inform you Doing
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1 The Netherlands Doing Business in
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Steady-Course Policy Doing Business
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2 Legal Forms of Doing Business Doi
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2.3 Branch versus Subsidiary Doing
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4 The Subsidiary 4.1 Incorporation
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8 Commercial Contracts 8.1 General
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9 Real Estate 9.1 Ownership Doing B
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9.7 Leases Doing Business in the Ne
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10.5 The European Economic Area Doi
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12 Telecommunications 12.1 Market S
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12.9 Net Neutrality Doing Business
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14 Labor Law 14.1 Term Doing Busine
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14.4 Works Council Doing Business i
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17.5 Income Tax Ruling Doing Busine
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17.5.3 Status of the Employer Doing
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18.1.7 Non-Resident Shareholder Tax
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18.9 Tax Incentives Doing Business
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Page 289: www.bakermckenzie.nl Baker & McKenz
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