DNB, together with the Netherlands Authority for the Financial Markets (Autoriteit Financiële Markten), is responsible for supervising compliance with the Wft and any related secondary legislation. To exercise effective supervision, DNB is empowered to penalise breaches of the Wft. The sanctions that DNB can impose include the administrative fine and the cease and desist order. Another measure at DNB’s disposal is the issuance of a public warning.
What is a public warning?
A public warning is a measure designed to warn the public. It is a remedial measure. In deciding whether to issue a public warning, DNB must weigh up the importance of warning the public in the light of the possible impact on the interests of the financial institution such as adverse financial consequences. Because of the remedial nature of a warning, its issuance does not detract from DNB’s power to impose other measures such as a cease and desist order or an administrative fine.
When can a public warning be issued?
DNB can issue a public warning in respect of breaches specifically named in the Act. The issuance of a public warning is a discretionary power of DNB. It has the authority, but not the obligation, to issue a public warning if the relevant provisions in the Wft are breached.
Before issuing a public warning, DNB is obliged to notify the person concerned of its intention. This notification must state the reasons why DNB intends to issue a public warning. The person concerned subsequently has an opportunity to inform DNB of his response to this intention.
A public warning may only be issued if five working days have elapsed since DNB has notified the person concerned of its decision to issue a public warning. During this five-day period the person concerned may, pending a decision on the objection, apply for injunctive relief. In such a case, the decision will be suspended until the interim relief judge (voorzieningenrechter) has passed judgment. In urgent cases DNB can publish the public warning immediately, without waiting the prescribed period of five working days.
Objection and review
A person who disagrees with the decision to issue a public warning may lodge an objection with DNB within six weeks after the day on which that decision has been announced. In this case DNB will review the decision to issue a public warning. If the objection is rejected, the offender may apply to the administrative court (bestuursrechter) in Rotterdam for judicial review of the case, and may subsequently appeal against the court’s decision to the Trade and Industry Appeals Tribunal (College van Beroep voor het bedrijfsleven).