On 11 April 2002, Akzo Nobel published a press release in which it announced that it had received a letter from the FDA in response to Organon’s request for permission to market Ariza. The letter contained a great many questions about the product, which were mainly of a technical nature.
Euronext’s investigation revealed that Organon received the letter on 15 March 2002, after which it set up an international project team to analyse the FDA’s complex questions and draft conclusions and recommendations. During this process, Organon discussed various scenarios with different timeframes. On 9 April 2002, a definitive scenario was submitted in a recommendation to Akzo Nobel’s board of directors, which subsequently approved the scenario. The final version of the press release was drafted on 10 April 2002. Taking into account its listing on Nasdaq, Akzo Nobel decided to publish the press release outside trading hours, and as a result it was published on 11 April 2002.
Article 28h of the Listing and Issuing Rules stipulates that issuers are required to publish immediately any fact or event relevant to the issuer which can be expected to have a material effect on the share price. Issuers can exercise a certain amount of freedom when deciding which information should be published under this article. Moreover, individual facts must be established to a sufficient degree before information can be deemed publishable under this article.
During the investigation, it was established that when Organon received the letter from the FDA, it was not aware of the implications that the letter would have. Moreover, it did not become clear that the introduction of Ariza would be delayed until the board of directors took its decision on 9 April 2002. Regardless of whether the delay could be considered a fact or event relevant to the issuer within the meaning of article 28h of the Listing and Issuing Rules, Euronext found that Akzo Nobel had published the press release within the time stipulated in article 28h of the Listing and Issuing Rules. On the basis of the available data, Euronext therefore took the view that Akzo Nobel did not violate article 28h of the Listing and Issuing Rules.
In the event that a violation is presumed to have occurred within the meaning of article 6 of the Regulations of the Listing and Issuing Rules Advisory Committee, Euronext can submit the case for recommendation to the Listing and Issuing Rules Advisory Committee (Advisory Committee). As Akzo Nobel was not presumed to have committed a violation in the case in question, Euronext had no grounds for requesting a decision by the Advisory Committee.
In view of the special nature of this case, Euronext requested a second opinion from Prof. C.A.J. Herkströter, chairman of the Listing and Issuing Rules Advisory Committee, who endorsed Euronext’s conclusion that Akzo Nobel did not violate article 28h of the Listing and Issuing Rules in the case in question.
