The Saturday edition of Het Financieele Dagblad published an article by Christiaan de Brauw and Jos Beckers on the absence of active supervision of the mandatory bid rule.
Any party that acquires 30% of the voting rights in a Dutch listed company is under the obligation to submit a bid for the remaining shares. This is to protect minority shareholders. Christiaan and Jos argue that supervision of the duty to bid should not be the responsibility of the Enterprise Chamber of the Amsterdam Court of Appeal, as is the current situation, but of the Dutch Authority for the Financial Markets (AFM). 'Although the Enterprise Chamber has been designated as the enforcement agency, as a passive judicial body it does not perform any supervision itself,' say Christiaan and Jos. Meanwhile, after six years, it has become clear that minority shareholders themselves are unable to perform supervision. At this point, there is 'great uncertainty as to the scope of application of the duty to bid', which precludes 'good corporate governance'. The Netherlands is the only country of the 30 EU countries that does not have an accessible supervisor. The Netherlands is, thus, out of line with Europe and 'is acting contrary to European acquisition rules'. As a result, 'transactions are cancelled or have to be adjusted for the wrong reasons'. This will eventually impair the position of the Netherlands as a jurisdiction that 'is increasingly selected as a neutral place of business by international groups and merged companies'. 'The time has come to designate AFM as the supervisor', conclude Christiaan and Jos.