Shareholders’ Rights Directive implementation bill now before Parliament

On 16 October 2018, the bill for the implementation in Dutch law of the revised Shareholders’ Rights Directive (EU 2017/828) was submitted to the lower house of the Dutch parliament (Tweede Kamer). In this newsletter, we will describe the changes in the bill compared to the earlier consultation version published on 27 February 2018, which was the subject of our newsletter dated 9 March 2018.

RENUMERATION POLICY

The consultation version of the bill contained a new provision on the remuneration policy of listed companies. This gave rise to confusion, because the Dutch Civil Code (“DCC”) already contains a provision on the subject. Under the bill as submitted to Parliament, it has now been clarified that listed companies will be subject only to the new provision, which will become section 2:135a(5) DCC. This sets out the information that must be given in the company’s remuneration policy, some of which is already required. New items of information that will be required include:

• an explanation of the way in which the policy contributes to the company’s business strategy, long-term interests and sustainability;
• an explanation of the decision-making process followed for the policy’s determination, review and implementation; and
• in the event that the policy is revised, a description and explanation of how it takes into account the votes and views of shareholders on the policy and remuneration reports since the most recent vote on the policy by the general meeting of shareholders.

In the case of the remuneration report it has likewise been clarified that listed companies will be subject only to the new section 2:135b DCC, which sets out a number of new requirements in addition to existing ones. It should be noted, however, that pursuant to section 2:135b the current requirements in sections 2:383c-e DCC will continue to apply. One of the new items of information that will be required is an explanation of how the total remuneration complies with the remuneration policy and how it contributes to the company’s long-term performance. All information must be given in respect of each individual management board member.

TRANSACTIONS WITH RELATED PARTIES

The bill introduces the term “material transactions” (unlike the consultation version, which referred to “significant transactions”) and sets out a definition in which price sensitivity is taken as the point of departure. A transaction will be material if it meets both of the following two criteria:

1. the information about the transaction constitutes inside information under the Market Abuse Regulation (Regulation (EU) 596/2014); and
2. the transaction is concluded between the company and a related party (as defined under the International Accounting Standards). Related parties in any event include:

• one or more shareholders who individually or collectively represent at least 10% of the company’s issued share capital (“stichting administratiekantoor” foundations and foundations holding preference shares can fall within this category);
• members of the company’s management board; and
• members of the company’s supervisory board.

A provision has been added prohibiting a management board member or supervisory board member from participating in the decision making on a related party transaction in which that board member is involved. Lastly, the period over which non-material transactions with the same related party must be aggregated, potentially resulting in an obligation to disclose those transactions, has been changed from 12 months to “the same financial year”.

TRANSPARENCY REGARDING LONG-TERM SHAREHOLDER ENGAGEMENT

The definition of “asset manager” has been amended to clarify that it refers to those providing asset management services to institutional investors. The term “proxy advisor” has been replaced with “voting advisor” (stemadviseur), as this is more in line with the terminology commonly used in the Netherlands, including in the Dutch Corporate Governance Code. In addition the obligation on the part of institutional investors and asset managers to disclose and explain “the most significant votes”, and the possibility of excluding “insignificant votes” in this regard, have been elaborated upon.

The proposed reporting requirements overlap with those imposed under other EU directives and regulations, such as the AIFM, UCITS and MiFID II directives. The explanatory memorandum to the bill clarifies that it will be sufficient if asset managers include the relevant information in their other reports or include references to such information (for example using hyperlinks), provided it is made clear to the relevant institutional investors where the information can be found.

NEXT STEPS

The deadline for the implementation of the Directive in national law is 10 June 2019. It is possible that the bill will be amended as it makes its way through Parliament. We will of course keep you updated on any significant amendments and on the entry into effect of the new legislation. It is also worth mentioning that both the government and the Corporate Governance Code Monitoring Committee are of the opinion that, in connection with the implementation of the Directive, the section of the Code relating to shareholders should be re-examined; we will likewise inform you of any developments on that front.