On Monday 24 February 2003, before the opening of the markets, Ahold published a press release which stated, among other things, that its results for 2002 would be significantly lower than expected, that its annual figures for 2000 and 2001 and interim figures for 2002 would have to be restated, and that Ahold’s CEO and CFO would resign.
Insofar as relevant for the purpose of this case, Article 28h of the Listing and Issuing Rules stipulates that every issuer is required to publish immediately any fact or event of relevance to it which is likely to have a material effect on its share price.
In the Committee’s opinion, Ahold violated Article 28h of the Listing and Issuing Rules by failing to disclose on 13 January 2003 or shortly thereafter that there were serious misgivings about the possibility of consolidating ICA Ahold AB under Dutch GAAP for the 2002 financial year. The Committee also considered that at that time it was a sufficiently established fact that the consolidation of ICA under Dutch GAAP for the 2000 and 2001 financial years and under US GAAP for the 2000, 2001 and 2002 financial years could not be upheld. The Committee took the view that in the circumstances the presumption that it had been incorrect to consolidate ICA had to be considered price-sensitive information, as sales (market share) constitute key data at companies such as Ahold. Furthermore, the Committee took into consideration the fact that Mr Eisma’s report of 13 January 2003 expressed serious reservations about the performance of Mr Meurs, Ahold’s then CFO, in particular with regard to the fact that he had withheld information from Ahold’s auditor that was material to the issue of consolidation. In the Committee’s opinion, all these circumstances, when looked at together, had to be considered price-sensitive information, and hence Ahold was required to publish this information immediately pursuant to Article 28h of the Listing and Issuing Rules.
In addition, the Committee took the view that Ahold violated Article 28h of the Listing and Issuing Rules as it failed to publish so much as general information on the evidently major case of fraud at US Foodservice within a few days of learning of the case on 12 February 2003, but in any event by 14 February 2003, when Ahold’s Supervisory Board discussed this major case of fraud. In the Committee’s opinion, the fact that Ahold might have been able to obtain from Euronext temporary dispensation from the publication requirement for the case of fraud at US Foodservice pursuant to Article 28h (end) of the Listing and Issuing Rules is irrelevant.
With regard to the request submitted to it by Euronext on 13 January 2004, the Committee took the view that Koninklijke Ahold N.V. had committed two evident violations of Article 28h of the Listing and Issuing Rules.
Given the circumstances of this case, the Committee recommended that Euronext should apply one of the measures referred to in Article 65 of the Listing and Issuing Rules, namely that it should issue a serious written warning.
DECISION TAKEN BY EURONEXT’S MANAGEMENT
The management of Euronext endorses the recommendation of the Listing and Issuing Rules Advisory Committee, and has issued Ahold with a serious written warning in respect of its violations of article 28h of the Listing and Issuing Rules.
The Committee‘s recommendation will be published on Euronext’s website (www.euronext.com) on 28 May 2004.
