Can non-resident holders of depositary receipts participate?
About half of all certificates are in Dutch hands. But Triodos also has branches in Belgium, Spain, Germany and the UK. Especially in the former two countries, many certificates were also circulated. What all certificate holders have in common is that they have been duped by the bank's actions.
Position of foreign depositary receipt holders
About 70 certificate holders have come forward over time who are interested in joining our joint claim but are not based in the Netherlands. These are mainly Belgian certificate holders, but they also include Germans, English and Spaniards, and Dutch people living abroad.
With our lawyers, we discussed the position of these foreign certificate holders. In particular, the central question was whether the lawyers could also act for holders of depositary receipts from other countries in the, probably inevitable, legal proceedings.
We write "probably inevitable" here because we will first hold Triodos formally liable and give it a reasonable time to compensate the certificate holders' damages without going to court. But we are under no illusion that such liability and notice will lead to a resolution without subsequent legal action.
Two key questions
For Dutch nationals living abroad, but who bought their certificates in the Netherlands and have a Dutch investment account, participation in our claim procedure is simply open. For other certificate holders, unfortunately, this is not obvious.There are two issues for these foreign-based certificate holders that are important in assessing whether participation in the joint legal proceedings is possible:
Were the acquired Triodos share certificates issued by SAAT, based in Zeist, the Netherlands?
Does the prospectus and/or the bank's general terms and conditions provide that Dutch law applies in the event of disputes, or does it refer to the applicable law of the country where the certificate holder is domiciled?
Check for yourself if you can join
We urge foreign certificate holders to check for themselves whether both questions can be answered in the affirmative. If so, nothing will stand in the way of participation and, if desired, final affiliation will be possible soon. But frankly, we do not think this will be possible in most cases.
On the first question, we expect that there will actually always be confirmation. But to the second question, that unfortunately does not seem to be the case. The fact that legal proceedings have been initiated in Spain and Belgium indicates that the law in those countries applies. We also deduce this from the general conditions we found on the bank's (Dutch-language) Belgian website.
The 'General Conditions of Triodos Bank' we found on the website states the following:
Applicable law and competent courts
3.11.8 Belgian law is applicable to all relations entered into between the Bank and the Customer. Disputes between the Bank and the Client shall be settled by the courts and tribunals of the judicial district of Brussels when permitted by the rules of judicial law.
And in the 'Special Terms and Conditions of Investment Services' the following:
Article 12. Applicable law and competent court
Article 3.11.8 of the General Terms and Conditions applies in full to these Special Terms and Conditions.
We suspect that similar provisions can be found on Triodos websites and documents in other countries and that it is not possible for most foreign certificate holders to join our joint claim. We deeply regret this, as we would like nothing more than to stand up for the interests of anyone who wants to join us. However, it is impossible for us to litigate in five different countries at the same time.
Foreign certificate holders who wish to join us and can demonstrate that their dispute with Triodos Bank is also governed by Dutch law are very welcome.
Belgian certificate holders who cannot join us can, if they wish, still join the proceedings recently launched there. Encouraged to do so by Bernard Poncé, initiator of Trioforum, lawyer Laurent Arnauts (SQ watt Legal) got to work. On behalf of several hundred certificate holders, he is taking the bank to court. For more information, go to Trioforum's website.
According to the Plataforma de Afectados Triodos, an interest group of Spanish certificate holders, a joint claim in Spain is not easily possible. Perhaps because of this, hundreds of lawsuits are already pending there. According to the platform's latest information, the lawsuits have so far resulted in 58 victories and 40 defeats for certificate holders. As these are first-instance rulings, and various legal courses are still possible, these are not usually final outcomes, by the way.
Three law firms are acting on behalf of very many individual certificate holders. They are:
- Col-lectiu Ronda
Germany and United Kingdom
There is unfortunately no alternative yet for German and UK certificate holders. To our knowledge, certificate holders there have not yet organised themselves either. We may be able to lend a hand there. If desired, we will put the certificate holders we know in touch with each other so that they can discuss possible joint steps. Please let us know via an e-mail if that is appreciated.
Translated with DeepL.com (free version)