European Company Law and the Netherlands: The Insider Dealing Problem. A Probatio Diabolica?
| Published date | 01 September 1996 |
| Date | 01 September 1996 |
| DOI | 10.1177/1023263X9600300301 |
| Subject Matter | Editorial |
Editorial
European Company Law and the Netherlands: The Insider
Dealing Problem. A probatio
diabolica?
It
is a common principle that markets furthering free trade and competition ultimately
depend on those who are willing to invest in them. Investor confidence is therefore of
vital interest: all market players participating in transactions
of
'transferable securities'
should be subject to equal conditions. None of the potential investors should profit from
'inside information.' The premise of 'fair play', which is already
of
fundamental
importance to national financial markets, afortiori applies to 'globalizing' markets,
which aim to attract investors from
allover
the world. A properly functioning single
financial market therefore presupposes a complete set of uniform rules (including
sanctions) for all actors at Stock Exchanges, regardless of which EC Member State they
are based in. The contribution
of
Vanessa Edwards in this issue in particular focuses on
the implementation of the EC Directive on Insider Dealing Iin the United Kingdom.
It
is obvious that all Member States will have to comply with this Directive, in order
to bring about a prospering investment climate.
Although the penal provision of Art. 31 (a) of the Dutch Wet Toezicht Effeetenverkeer
(1989 Act concerning the Control of Security Transfers, unauthorised transl. SR) meets
the requirements set by the EC Directive on Insider Dealing, the law in the Netherlands
as it now stands is far from clear. 'Insider dealing' cases that are pending,
e.g.
Bor-
sumij, BolsWessanen, Smit Transformatoren, RDM, Baan, Oreo, Weweler, etc., attract
frequent comment in the Dutch (financial) newspapers. In the words
of
Slagter, even
reputed company law scholars do not hesitate to make bold comments, although the
aforementioned cases are still sub iudice. 2So far, only one case has been adjudicated
by the Dutch
'Hoge
Raad' (Supreme Court). 3This criminal law decision, known as
the
ReS
case, though meant to function as a 'test case', can however by no means be
1. Directive 891529, (1989)
OJ.
L334/30.
2. W.J. Slagter, TVVS 1996, p. 69.
3. HR 27-1-1995, Bijl. NJB (1995) 27,374-377. Cf. an earlier decision of the Amsterdam Court 18-4-
1990, TVVS 1991, p. 107: indemnification claim by two investorsagainst DATEX and two members
of the management board rejected.
MJ 3 (1996) 213
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