учебный год 2023 / Haentjens, Harmonisation Of Securities Law. Custody and Transfer of Securities in European Private Law

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securities are transferred to the participant’s or the CSD’s property.67 Moreover, the legislature found it unacceptable that all other requirements for a valid transfer of ownership would have to be met when the deposit/delivery of securities would be so classified.68 A valid transfer of ownership requires, other than delivery (levering), a valid title, the transferee’s power of disposal (beschikkingsbevoegdheid) and a proprietary agreement (goederenrechtelijke overeenkomst), and the non-fulfilment of one of these requirements results in a non-valid transfer of ownership. In such instance, a previous owner can revendicate his assets under third party transferees, which would unacceptably impair the legal certainty required in securities transactions, should the same rule apply to the deposit of securities. Art. 14 Wge therefore provides that the absence of a depositor’s power of disposal has no legal consequences for the deposit of securities.69

Although the formal requirements for delivery have to be met when securities are deposited, it must be concluded that such delivery does not result in the transfer of ownership rights from the depositor to the custodian/depositee.70 Consequently, the deposit of securities into a Wge pool has to be considered a sui generis legal act.71

Notwithstanding these classification difficulties, a deposit of securities into a Wge pool results in the replacement of the investor’s right of ownership with a right of co-ownership in the gemeenschap (community of property), formed by the Wge pool.72 Upon deposit, such gemeenschap consists of securities previously deposited, plus the newly deposited ones. Consequently, a deposit of securities changes the previous owners’ entitlement, i.e. it changes the percentage of the Wge pool to which the previous co-owners were entitled.73 Thus, because co-owners are entitled to a share in the entire pool of securities, rather than to specific securities, a

67Explanatory Notes to the Draft Wge TK 1999-2000, 27 164, no. 3, 4 and cf. Explanatory Notes to the Draft Wge TK 1975-1976, 13 780, no. 3, 12.

68Explanatory Notes to the Draft Wge TK 1999-2000, 27 164, no. 3, 4.

69See HAENTJENS (forthcoming, 2007), comm. at art. 14.

70Arts. 2:86c and 2:86 BW (registered shares), art. 3:94 BW (registered bonds) and art. 3:93 in conjunction with art. 3:90 BW (bearer shares), which must all be read in conjunction with art. 3:84 BW.

71A government statement confirms this position. The said statement referred to the delivery of registered securities, but must be assumed to apply to bearer securities also; Advice of the Council of State and Additional Report TK 1999-2000, 27 164 A, 5.

72The investor/owner of the securities deposited need not be the depositor; art. 12(1) Wge. In Rechtbank Amsterdam, 27 August 2003, JOR 2003, 262, the court held that when an administrator had deposited securities he held for the owner of the securities, the (successor of the) administrator had illegally pledged these securities, as he had no power of disposal.

73For instance, the credit balance of two accountholders with the same account provider shows 10 securities of a certain type. Thus, these accountholders are entitled to 50% of the Wge pool. When the securities account of a third accountholder becomes credited with 10 securities of the same kind, all accountholders become entitled to 33% of the pool. See UNIKEN VENEMA (2003), 44-46.

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representation by the intermediary that administers the pool in which securities are deposited must be construed. Under such construct, an intermediary represents the existing co-owners of the pool when accepting securities from the depositor. By the same token, an intermediary represents its clients vis-à-vis the CSD or other intermediaries when transferring securities to the CSD or other participants, respectively.74

The deposit procedure just discussed assumes that securities are held by investors and subsequently deposited into a Wge pool, which may have been the situation for which the legislature drafted the Wge in 1976, but which seldom happens today. At present, investors usually do not possess bearer certificates, and an issuer often directly deposits the securities it issued into a participant or giro pool.75 The legal aspects of a direct deposit of securities into a participant pool are identical to what has been discussed above. A direct issue into the giro pool, however, is more problematical. For instance, when a global is directly deposited into the giro pool, a representation of the participants by the CSD has to be construed, only to satisfy the Wge’s requirement that a deposit must be effected by a participant. An issue of dematerialised securities, on the other hand, is effected through assignment of the securities to a participant pool (the pool is often administered by the listing agent), after which they are transferred to the giro pool, and subsequently distributed among other participants.76

Retrieval and distribution

Provided the issuer has not prohibited the delivery of its securities out of the Wge system, an investor may retrieve from his account provider the securities to which he is entitled.77 The procedure for retrieval and

74Arts. 38 and 10(b) Wge, respectively. UNIKEN VENEMA (2003), 83-86, has argued that these transfers are legally identical to the acts of deposit. But it is submitted that the fact that the former transfers relate to securities that are already part of the Wge system, whereas the latter do not, distinguishes them. A depositor loses his ownership when depositing his securities, while an intermediary’s entitlement to the securities it transfers remains the same when transferring them to the CSD. In that instance, the intermediary performs a mere administrative task regarding the securities in its custody, regardless of the fact that for both transfers and deposit, delivery has to be performed according to the same statutory requirements.

75VAN ARDENNE-STACHIW in RANK ET AL. (1997), 92 and SCHIM (2006), 72 et seq. In addition, accountholders may want to deposit securities that are held in the VABEF system (see supra) into the Wge system. The Wge created a legal construction, so that no physical delivery out of the VABEF system is needed, but a fictional deposit into the Wge system must be effectuated nonetheless; see HAENTJENS (2007, forthcoming), comm. at art. 50.

76Cf. supra, s. 7.3.1. But see VAN DIJK (2001-2), 337-338 and SCHIM (2006), 77 et seq., who argue that the Wge allows for a direct issue into the giro pool. But it is submitted that the current text and meaning of the Wge clearly prevent such an interpretation, although it arguably better facilitates today’s practice; see, especially, art. 37(1) Wge. Cf. UNIKEN VENEMA (2003), 66-75.

77Art. 26 Wge (introduced by the 2000 revision of the Wge). See UNIKEN VENEMA (2003), 220-231, objecting to the possibility that an issuer forbids physical retrieval, mainly on

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subsequent delivery is similar to the deposit of securities into the system as discussed above. As a result of the delivery of securities out of a Wge pool, for instance, the remaining co-owners’ entitlements change, for after delivery, their entitlement is to another, viz. a larger, percentage of the Wge pool in question. As the Wge system is based on fungibility, the intermediary that delivers securities out of the pool which he administers must deliver securities of the correct quantity and quality; art. 26 Wge.

When a Wge pool is liquidated, for instance because of the administering intermediary’s insolvency, the securities present in that pool are distributed amongst entitlement holders. If the amount of securities held by the insolvent intermediary turns out to be less than the total amount of securities to which the accountholders are collectively entitled, the resulting deficit is first covered by the intermediary’s own share in the pool.78 Any remaining deficit is apportioned among the intermediary’s clients, in proportion of their share; arts. 27 and 28 Wge (participant pools), and art. 42 Wge (giro pool).79

However, these procedures of delivery and liquidation represent a derogation from the general private law rules on the liquidation of a gemeenschap (community of property).80 First, art. 3:178(1) BW provides that all individual co-owners may request the liquidation of their gemeenschap at any point, which is obviously and explicitly not applicable to Wge pools.81 Furthermore, 3:182 BW requires the cooperation of all co-owners when a gemeenschap is liquidated,82 whereas under art. 30(1) and art. 48 Wge, the delivery of securities out of a Wge pool occurs without the cooperation of accountholders or participants, respectively. If a representation of accountholders or participants by the delivering intermediary or CSD is construed, however, they would fictionally co-operate with the delivery or liquidation.83

corporate law arguments. Contra SCHIM (2006), 101 et seq., arguing that the prohibition of retrieval by an issuer concerns a specific (corporate) authority that must be distinguished from the authority to prohibit retrieval in the terms of issue, and that this prohibition is not necessarily detrimental to the investors’ interests.

78Such a deficit could arise, for instance, when, to effectuate a transfer, an intermediary credits its clients’ securities accounts, before having been correspondingly credited with the CSD, and then falls insolvent; see HAENTJENS (2007, forthcoming), comm. at art. 16, 18 and 41, and GROENHUJSEN & KRISTEN (1999), 215.

79See HAENTJENS (2007, forthcoming), comm. at arts. 27 and 28, for practical distribution examples. As an additional measure of investor protection, a special guarantee fund has been created to compensate investors’ losses up to the amount of € 20.000; arts. 3:258 through 3:265 Wft and Stb. 2004, 77.

80These rules on liquidation also refer to delivery; see ASSER-MIJNSSEN-DE HAAN 3-I (2001), no. 463.

81Cf. UNIKEN VENEMA (2003), 235.

82See SNIJDERS & RANK-BERENSCHOT (1996), no. 224.

83Accord WINTER (1998), 191.

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Finally, the delivery of separate securities that are expressed in a global proves to be problematical. As a solution, the securities to be delivered are separated from the global in the form of registered securities, and subsequently assigned.84 It is agreed with BOELE85 that this procedure does not classify as novation (novatie), but as a third-party agreement between issuer, CSD and participants, under which the CSD’s participants may receive these registered securities, yet may not further assign them to their clients.86

Additional contracts

From the discussion on the deposit of securities into a Wge pool, it follows that the classification of the accountholder – intermediary relationship in general private law terms is not at all obvious, especially because a classification as bewaargeving is controversial. But the additional contracts that complement an intermediary’s principal obligation, viz. the safekeeping of its clients’ assets, prove to be no more easily defined.

When an intermediary, as the manager of a securities pool, acts with third parties on behalf of its clients, the accountholder – intermediary relationship classifies as a special form of representation.87 For instance, an intermediary represents its clients when transferring their securities to the CSD or other intermediaries for deposit and custody.88 However, this representation, as well as the intermediary’s authority to represent, does not originate from an agreement, but from statute; art. 38 Wge. The general private law provisions on volmacht (procuration) are therefore not applicable, as art. 3:60(1) BW requires that the authority to represent must be granted through a legal act. In addition, representation under the Wge derogates from the general private law rules on representation, as representation by an intermediary excludes any interference from its clients, for accountholders are prohibited from disposing of their securities without the accountprovider’s co-operation.89

Furthermore, the general private law provisions on contractual agency do seem to be applicable.90 But whereas under the general private law definition of contractual agency, a representative discharges its obligations by performing one or more legal acts, an intermediary is typically not contractually obliged to perform such acts, for its typical acts of

84See BOELE (1997), 23-24, WINTER (1998), 189, BLOM (1998), 191-193 and VAN DEN HOEK (2004), 154.

85BOELE (1997), 24.

86BLOM (1998), 194.

87See VAN ARDENNE-STACHIW in RANK ET AL. (1997), 111 and Explanatory Notes to the Draft Wge TK 1975-1976, 13 780, no. 3, 17. See also infra, s. 7.3.6.

88Cf. UNIKEN VENEMA, 91-92.

89UNIKEN VENEMA (2003), 77, speaks therefore of a sole and exclusive form of administration (bewind). Cf. also HAENTJENS (2004-2), 990.

90Arts. 7:414 et seq. BW.

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administration involve the transfer of securities from the participant pool to the giro pool. In addition, the general private law rules on mandate do not apply to the accountholder – intermediary relationship, because under these rules, the rights of the mandatary (lasthebber) against third parties can also be asserted by the mandator (lastgever), whereas an accountholder is strictly prohibited from asserting his rights against, e.g., the CSD.91

More generally, section 7.7 BW on services agreements does not apply in a securities intermediary – accountholder context, because typical acts of administration such as the transfer of securities from a participant pool to the giro pool, are effectuated pursuant to statutory law, whereas in principle, (the fulfilment of obligations arising from) services agreements and contractual agency follow from a specific agreement.92 In conclusion, the accountholder

– intermediary relationship must be considered a sui generis relationship.93

7.3.5 Accountholder interests

When an accountholder’s securities account shows a credit balance of securities that are admitted to the Wge system, and that securities account is held with a Wge-admitted intermediary, the accountholder enjoys, as stated before, a direct co-ownership interest in the securities that his account refers to. The strict Dutch doctrine, however, only allows the ownership of tangibles, so that a different concept had to be created to refer to shared property rights in intangibles. Consequently, securities pools managed by intermediaries classify as gemeenschappen (communities of property), and rights therein as ‘community rights’.94 With the introduction of the community construct, the legislature intended to provide investors with the necessary proprietary protection against intermediary bankruptcies. The following section, however, will show that the community construct of the Wge is inconsistent with general private law.

First, although an investor’s right of ownership is replaced with a right of coownership in a participant pool upon the deposit of his securities, it can be questioned what this co-ownership interest really involves, as the investor can only dispose of his securities via a participant or via a participant and the

91Art. 7:420 BW. By the same token, art. 6:253 BW on third party clauses does not apply. Cf. UNIKEN VENEMA (2003), 77 n.160 and see HAENTJENS (2004-2), 990. See also infra, s. 7.3.6.

92Cf. arts. 7:400 and 7:414 BW respectively. See ASSER-KORTMANN-DE LEEDE-THUNNISSEN 5-III (1994), no. 53 and MEIJER (1999), 12.

93Cf. VAN ARDENNE-STACHIW in RANK ET AL. (1997), 102-104 and VAN RAVENHORST (1995),

94But because ‘community rights’ are identical to ‘co-ownership rights’, these rights will continue to be referred to as ‘co-ownership rights’ to facilitate comparative analysis.

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CSD.95 In addition, it is submitted that the (meaning of the) co-ownership concept in the Wge context is inconsistent with general private law, for accountholders do not share identical rights in Wge pools, but rather enjoy a combination of rights that can only occasionally be asserted against third parties. Third, the application of the co-ownership and gemeenschap construct implies the applicability of the general private law provisions on gemeenschap (section 3.7 BW). The Wge itself, however, provides for several derogations from those provisions, but their application to the securities custody context also conflicts with the Wge’s rationale, viz. accountholder protection.

Section 3.7 BW

To start with the last position: the Wge explicitly charges intermediaries with the management of securities pools and the exercise of accountholders’ rights vis-à-vis third parties in that capacity; art. 11(2) Wge. Art. 3:170 BW, however, states that, generally, co-owners only have the authority to perform acts that concern common property together.96 Consequently, a fictitious representation of the investors together by the intermediary must be construed so as to achieve the applicability of art. 3:170 BW, albeit indirectly, to the Wge context. In addition, it may be reminded that for the liquidation of a Wge pool and for the delivery of securities out of such pool, a similar representation of accountholders by the managing intermediary had to be construed to retain the applicability art. 3:182 BW, which requires the cooperation of all co-owners in the liquidation of a gemeenschap.97

More generally, the application of section 3.7 BW results in a failure to achieve one of the Wge’s main objectives, viz. the proprietary protection of investors. In Kas-Associatie/Drying Corp., an investor (Drying Corporation) did not hold a securities account with a Wge participant, but with an intermediary that, in its turn, did hold a securities account with a Wge participant, viz. Kas-Associatie. Upon the intermediary’s insolvency, Drying Corp. tried to assert its accountholder interests against Kas-Associatie. The Hoge Raad, however, held that the intermediary could not make Drying Corp. a co-owner in the pool, administrated by Kas-Associatie, because of the nature of the Wge gemeenschap.98 Consequently, all lower than third-tier accountholders (the CSD being the first and its participants being the second tier) are withheld from the protection the Wge was intended to provide. It must therefore be concluded that the application of the provisions of section 3.7 BW lead to inconsistencies and other unwarranted consequences,

95See Explanatory Notes to the Draft Wge TK 1975-1976, 13 780, no. 3, 34 and ASSER- MIJNSSEN-DE HAAN 3-I (2001), no. 461.

96Especially art. 3:170(2) and (3) BW. Cf. ASSER-MIJNSSEN-DE HAAN 3-I (2001), no. 455.

97Cf. art. 30(1) Wge. See supra, s. 7.3.4.

98HR 23 September 1994, NJ 1996, 461. Cf. UNIKEN VENEMA (2003), 105.

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notwithstanding regulatory rules that intend to mitigate this lack of accountholder protection. 99

Community

The general private law classification of accountholder interests as a community right or a right of co-ownership is also inconsistent. First, when only one client of an intermediary or CSD is entitled to a certain security, i.e. when a participant or giro pool has only one entitlement holder, that accountholder obviously does not share in the pool concerned, nor is he a co-

owner together with others. The Wge, however, considers all accountholders as such.100

Second, the application of the co-ownership construct to accountholder interests is inconsistent, because accountholders, it is submitted, enjoy a combination of rights that can only occasionally be asserted against third parties, rather than share certain identical rights in the Wge pools.101 Under general private law, a co-owner enjoys a property right to a pars pro indiviso,102 i.e. a share in an undividable community of property, but accountholders enjoy a specific interest in a dividable pool of fungible rights, i.e. an indivisum pro parte.

Thus, an accountholder enjoys an entitlement that is expressed by a credit balance on a securities account, and that entitlement refers (sometimes indirectly) to certain securities, but is not identical with the securities themselves.103 The Wge provisions on gemeenschap are therefore inconsistent with the general private law principle under which co-ownership rights in property are identified with the property itself.104 That position is affirmed by the aforementioned Kas-Associatie/Drying Corp. case, where it was held that a share in a securities pool classifies as a claim (recht op

99Cf., e.g., art. 6:16(1)(a) Nadere Regeling gedragstoezicht financiële ondernemingen Wft

(Further Regulations of Financial Institutions Supervision Wft), where it is provided that account providers that are no credit institutions must have a credit institution open a securities account directly in the name of the account providers’ clients.

100Contrast art. 3:166(1) BW. The Explanatory Notes to the Draft Wge TK 1975-1976, no. 3, 22-23, refer to such an instance, but although the government admitted that no co-ownership then exists, it was not of the opinion that the Draft should be accordingly amended, with reference to (not further specified) foreign law.

101Cf. VAN ARDENNE-STACHIW in RANK ET AL. (1997), 102-104. See infra, s. 7.4, for a

discussion on the non-transferable nature of accountholder interests.

102Cf. SNIJDERS & RANK-BERENSCHOT (1997), no. 214 and ASSER-MIJNSSEN-DE HAAN 3-I (2001), no. 451.

103See MIJNSSEN (1975), 205, SCHOORDIJK (1975), 631 and DALHUISEN & VAN SETTEN

(2003), 126. Accord FRIELINK (1990), 36 and VAN DEN HOEK (2003), 433. Contra VAN DEN BOSCH (2000), 137.

104Art. 3:96 BW. See ASSER-MIJNSSEN-DE HAAN 3-I (2001), no. 81.

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naam),105 although the pool consisted of bearer securities. Such recht op naam not only relates to physical and registered securities situated in either a participant or giro pool, but may also relate to other rights, as art. 10(d) and

(e) Wge provide that a participant pool may consist of claims (vorderingen) that substitute securities which were previously situated in that pool.106

The said recht op naam classifies – at least partly – as an in personam (contractual) interest, since an accountholder can enforce his main rights only against his immediate account provider, and in rem (proprietary) interests are enforceable erga omnes. For instance, the payment of dividends and interests, the exercise of voting rights and the delivery of securities out of the Wge system can only be enforced against an accountholder’s immediate intermediary. Moreover, his right of disposal, i.e. his right to alienate, the right to pledge and the right to establish an usufruct, is also only enforceable against the account provider. If securities are situated in a participant pool, the managing intermediary acts as (exclusive) mandatary (privatief lasthebber) for its accountholders when observing the said accountholder rights, and if the securities concerned are situated in the giro pool or the participant pool of another participant, the intermediary’s acts are more generally classified as representation.107

On the other hand, accountholder interests also classify as rights in rem, for they relate to an estate that is separated from the managing intermediary’s property, viz. a Wge pool. Consequently, accountholders take free of adverse claims, and can successfully assert their interests against third parties, such as the intermediary’s creditors. In addition, an intermediary is under the obligation to preserve accountholder interests, i.e. to maintain the (rights in) the quantity and quality of securities to which its clients are entitled, as it has no full authority to dispose of the securities in its custody, and must be able to meet accountholders’ requests for retrieval at any point.108 In sum, accountholder interests have both in personam and in rem effects, and must classify accordingly.109

105Kas-Associatie/Drying Corp., HR 23 September 1994, NJ 1996, 461, Section 3.5. See also VAN ARDENNE-STACHIW in RANK ET AL. (1997), 81 n.6, SCHIM (2006), 122-123 and in full RANK-BERENSCHOT (1998).

106Cf. SCHOORDIJK (1976), 632 and RANK-BERENSCHOT (1998), 161-162.

107But it is reminded that the general private law provisions of arts. 7:414 et seq. BW on mandate do not fully apply; see supra, 7.3.4, and infra, s. 7.3.6.

108Art. 26 Wge. Cf. DALHUISEN & VAN SETTEN (2003), 96-97. But see HAENTJENS (2007,

forthcoming), comm. at art. 12 and art. 26.

109 Cf. DALHUISEN & VAN SETTEN 2003, 104.

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7.3.6 Intermediary administration

The Wge protects accountholders from their account provider’s insolvency by the creation of securities pools as gemeenschappen (communities of property) that are separated from the account providers’ own estates, and accountholders therefore take free of the claims of the account provider’s creditors.110 That separation of property also resulted in the need for a special provision that authorises the intermediary’s bankruptcy administrator to liquidate the securities pool managed by the insolvent intermediary and to distribute its assets; art. 33 Wge.111 Thus, an intermediary merely holds its clients’ assets.112

However, an intermediary is also charged with the administration of the securities it holds, and is empowered to exercise its clients’ rights against third parties in that capacity; art. 11 Wge.113 Such administration of an estate that is separated from the administrator’s own property114 closely resembles the common law concept of a trust, under which, when applied to the securities custody context, the intermediary would be the legal owner and the investors the beneficiary owners.115 The comparison is all the more apt, because of the exclusive nature of the intermediary’s administration; as noted above, accountholders can only dispose of their securities via an intermediary. But the concept of trust is not acknowledged in Dutch private law, and in principle, the civil code does not give a fiducia cum amico transfer any legal effect; art. 3:84(3) BW.116

Thus, intermediary administration cannot be classified with certainty in general private law terms, especially because, as has been shown above, the general private law provisions on gemeenschap and its administration are not fully applicable.117 Especially when an intermediary acts with third parties,

110See Explanatory Notes to the Draft Wge TK 1975-1976, 13 780, no. 3, 4 and 12.

111Cf. Explanatory Notes to the Draft Wge TK 1976-1976, 13 780, no. 3, 42-43.

112Cf. VAN ARDENNE-STACHIW in RANK ET AL. (1997), 82. SCHOORDIJK (1975), 649, assumed that Wge pools have corporate personality, so as to explain the existence of a pool’s general terms and conditions, the provisions on attachment and the distribution of losses amongst coowners. Accord EBELING (1978), 142.

113Excluded from an intermediary’s power of disposal are the exercise of voting rights attached to the securities it holds for its clients; art. 15 Wge. Consequently, neither an investor’s right to attend and participate in a general meeting, nor the right to commence proceedings that might lead to an inquiry into the policy and conduct of the issuer’s business can be exercised by a participant. Moreover, the Wge requires that intermediaries facilitate their clients’ exercise of the said corporate rights; art. 15 and 39 Wge. Cf. also art. 24 ABV. See UNIKEN VENEMA (2003), 94-97.

114Cf. Explanatory Notes to the Draft Wge TK 1975-1976, 13 780, no. 3, 42-43.

115See DALHUISEN & VAN SETTEN (2003), at 100 and SCHOORDIJK (1975), 654.

116But see infra, s. 7.5.1.

117Art. 3:170 BW. See supra, s. 7.3.4. Cf. UNIKEN VENEMA (2003), 76.

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representation can be convincingly construed.118 Yet again, the precise classification of that representation proves to be difficult, as the provisions on contractual agency and services agreements do not apply in their entirety, for they are based on agreement, rather than statute. In the following, some instances of representation by an intermediary in its capacity as a Wge pool’s administrator will be examined, and it will be discussed, whether that representation classifies as direct or indirect representation (middellijke or onmiddellijke vertegenwoordiging).

Instances of representation

It has been shown previously that when an intermediary’s bankruptcy administrator liquidates the participant pool and distributes the assets, he represents all accountholders on a statutory basis, which indicates that the intermediary’s administrative acts also classify as representation.119 It has also been noted above that an intermediary represents all existing co-owners when accepting newly deposited securities into a Wge pool, for those coowners’ entitlements change with every deposit into or delivery out of a pool.120 It is reminded that although the value of their entitlement does not change, previous or remaining accountholders become entitled to a different portion of a different collection of securities upon each deposit or delivery, respectively.121

By the same token, when an intermediary attaches one of its clients’ shares in the pool it administers, the intermediary represents the other accountholders vis-à-vis the judgment debtor,122 because their entitlements change as the attached securities are ‘freezed’ and made unavailable to the other accountholders. In addition, when an intermediary transfers securities it holds for its clients to the CSD or to other participants, that intermediary represents its clients ipso iure vis-à-vis these third participants or CSD, and when an intermediary receives dividends or interests paid by an issuer, the intermediary represents its clients vis-à-vis this issuer.123

118See, e.g., Explanatory Notes to the Draft Wge TK 1975-1976, 13 780, no. 3, 17 and UNIKEN VENEMA (2003), 46-52.

119See SCHOORDIJK (1975), 650. Contra SCHIM (2006), 114-117.

120UNIKEN VENEMA (2003), 46.

121Should the proprietary position of the existing accountholders remain the same, the intermediary would also act in its function as administrator or qualitate qua, but would not represent.

122Arts. 24 and 44 Wge. See SCHOORDIJK (1975), 651.

123Arts. 38 and 10(b) Wge, and cf. art. 24 ABV, respectively. Cf. VAN ARDENNE-STACHIW in RANK ET AL. (1997), 102. If the securities concerned are CF-securities, the issuer pays to the CF, which then transfers the funds to the intermediaries who represent their clients vis-à-vis the CF; see supra, s. 7.2.

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