ADVISORY COMMITTEE’S DECISION
Royal Dutch invoked the ne bis in idem principle in connection with, among other things, a final notice issued by the Financial Services Authority (FSA) in the United Kingdom on 24 August 2004. It also requested that the request for advice be deferred under Article 10 (2) of the Regulations of the Listing and Issuing Rules Advisory Committee.
The Advisory Committee dealt with the ne bis in idem principle issue and the request for deferral in a hearing on 14 February 2006, and informed Euronext of its decision (set out below) on 7 March 2006.
In a provisional ruling regarding the ne bis in idem principle, the Advisory Committee overruled Royal Dutch’s attempt to invoke the principle.
In the relevant period, Euronext derived its powers to investigate whether any serious violations of the listing rules had occurred, and to take measures to prevent a recurrence or continuation of such violations, from the listing agreements it had concluded. No legal principle, legal provision or provision of a treaty contains a general sentence that implies that rights and powers derived from legal relationships governed by private law are lost once a foreign regulator imposes sanctions in connection with the same charges.
As far as Royal Dutch’s request for a deferral is concerned, the Advisory Committee considered that Royal Dutch had argued acceptably that it is involved in proceedings brought before a foreign court by plaintiffs based in the Netherlands who are holding it liable for matters that coincide at least in part with the matters now before the Advisory Committee. The Advisory Committee assumes, on the basis of what Royal Dutch has said, that there is a real possibility that in this dispute (in which the parties could also turn to the Dutch courts) some meaning could be attached to the Advisory Committee’s findings that is not justified given the nature of the proceedings before the Advisory Committee.
More weight should be attached to Royal Dutch’s interest in avoiding this situation than to Euronext’s interest in having its request for advice dealt with expeditiously. The Advisory Committee has therefore deferred the further treatment of the current request for advice, and believes this to be in line with the spirit of Article 10 (2) of the Regulations of the Listing and Issuing Rules Advisory Committee. In this matter, Euronext referred to the Advisory Committee’s decision.
The treatment of the current request for advice has therefore been deferred for an indefinite period of time.
The time will come when the reasons for this deferral are no longer relevant. This will raise the question as to how the request for advice that has now been deferred should then be dealt with.
To answer this question, three extraordinary circumstances need to be taken into account. First, as time passes, less and less weight will be attached to Euronext’s responsibility prior to 1 October 2005 for ensuring that investors are kept adequately informed, including the interpretation of the regulations that were put in place in order to ensure a transparent market. Second, Royal Dutch ceased to be a company listed on an exchange operated by Euronext some time ago. Finally, at least some significance has to be attached to the measure imposed by the FSA, ie the settlement agreement and the final notice. This means that Royal Dutch, as part of the old group structure, has already been confronted with the consequences of the complex of factual information that is now not being investigated by the Advisory Committee. Furthermore, it is impossible to ignore the fact that the FSA has decided that the group has taken adequate measures to avoid a repetition of the violations that the FSA established had been committed.
In the opinion of the Advisory Committee, these extraordinary circumstances, when taken as a whole, justify the fact that Euronext is now considering whether its interests will be sufficiently served by continuing with the current request for advice, given that in light of the above the Advisory Committee will not be able to deal with the request for advice until some time well into the future.
DECISION OF EURONEXT’S MANAGEMENT
The management of Euronext has established that the request for advice proceedings have been deferred for an indefinite period, and believes, taking into account the Advisory Committee’s considerations and given the circumstances mentioned by the Advisory Committee, that it would not be sufficiently in Euronext’s interests to continue with these proceedings.
The decision of the Listing and Issuing Rules Advisory Committee will be published on Euronext’s website at www.euronext.com: (http://www.euronext.com/editorial/documentation_rules/wide/0,5371,1732_4559859_____200187367,00.html) after the close of the markets on 13 April 2006.
