Belgium: Brussels Court Of Appeal Reduces Fines Imposed On Fortis' Former Top Executives

Last Updated: 16 November 2015
Article by Michel Bonne

On 24 September 2015, the Brussels Court of Appeal (Hof van beroep / Cour d'appel; the "Court") reduced the fines that the Financial Services and Markets Authority (Autoriteit voor financiële diensten en markten / Autorité des services et marchés financiers; the "FSMA") had imposed on Ageas, the successor in title of Fortis Bank, and on two of its former top executives, Jean-Paul Votron and Gilbert Mittler.

The Court had to review three appeals lodged against the decision of the FSMA sanctions commission (sanctiecommissie / commission des sanctions; the "Sanctions Commission") of 17 June 2013 (the "Decision"). Following a procedure of more than three years, the Sanctions Commission had imposed fines on Ageas (EUR 500,000) and Messrs. Votron and Mittler (EUR 400,000 each) for violation of specific provisions of the Law of 2 August 2002 on the supervision of the financial sector and on financial services (Wet betreffende het toezicht op de financiële sector en de financiële diensten / Loi relative à la surveillance du secteur financier et aux services financiers; the "Law").

In particular, the Sanctions Commission had found that Ageas and Messrs. Votron and Mittler had each infringed Article 21, §1st, 4° of the Law which provides that "[i]t is prohibited for any person [...] to disseminate information or rumours through the media or the Internet or by any other means, which give, or are likely to give, false or misleading signals as to financial instruments, where the person in question knew, or ought to have known, that the information was false or misleading [...]". Over the period May-June 2008, four public communications were specifically considered to be in breach of the Law. These included the statements made during the Fortis investor days of 22 and 23 May 2008 by Messrs. Votron and Mittler, respectively (the "First Communication" and "Second Communication") and during the financial breakfast in Utrecht on 5 June 2008 by Mr. Votron (the "Third Communication"). At issue were also assertions by Herman Verwilst at the Goldman Sachs conference in Berlin on 12 June 2008 (the "Fourth Communication").

According to the Sanctions Commission, each of these four communications contained misleading and/or false information concerning the financial situation of Fortis/Ageas following the takeover bid for the Dutch bank ABN Amro. In particular, key information was hidden from and wrongly delivered to the public with respect to the solvency of Ageas/Fortis and the divestment of certain assets. Further, the Sanctions Commission also found that Messrs. Votron and Mittler, as well as Ageas/Fortis should have disclosed, as per Article 10 of the Law, in these four communications, inside information that had come to their attention, including significant changes to information that had already been disclosed.

The Court examined each of the four communications for the purpose of determining whether the Law had been breached.

  • With respect to the First Communication, the Court upheld the reasoning of the Sanctions Commission and considered that Mr. Votron had provided false information with respect to the divestment process of certain assets of ABN Amro. Contrary to his assertions that discussions were pending with potential buyers and that binding offers had been received, the Court stated that he knew that the process was not going according to plan and that the only binding offer that Ageas/Fortis had received – namely from Deutsche Bank – was made on unfavourable terms for Ageas/Fortis. However, unlike the Sanctions Commission, his statement that the timing was in line with what had been requested by the European Commission was considered not to be misleading.
  • The Court also found that Mr. Mittler had breached the Law at the investor day by stating, in the Second Communication, that Ageas/Fortis was on track to meet its look-through solvency targets at/by the end of 2009 and that its solvency position remained strong thanks to the successful execution of its initial capital management plan. In fact, the Court concluded, just like the Sanctions Commission, that Mr. Mittler had delivered false information in relation to the solvency of Ageas/Fortis and had attempted to hide the increasing deficit by delivering over-confident forecasts to calm down the market, while he knew, or ought to have known, that the situation did not justify optimistic and reassuring statements.
  • The Third Communication was also found by the Court to be in breach of the Law, again confirming the Sanctions Commission's findings. Indeed, Mr. Votron had declared that the solvability was strong and in line with the capital management plan, while Mr. Mittler had informed him, ahead of the financial breakfast, that additional measures were going to be necessary to remedy the deteriorated solvency situation. However, unlike the Sanctions Commission, the Court found that neither Mr. Votron nor Mr. Mittler had a legal obligation to mention the existence of such additional measures, which pertained to Ageas/Fortis itself, in the framework of their obligations to disclose privileged information to the public.
  • In relation to the Fourth Communication, the Court also found a violation of the Law in Mr. Verwilst's statement that the plan in place to rebuild the solvency of Ageas/Fortis would cause Ageas/Fortis to be back on target by the end of 2009. This statement proved once again too optimistic and misleading for investors. Indeed, at that time Mr. Verwilst knew that the results of the measures already undertaken by Ageas/Fortis with respect to its solvency were disappointing and that new measures were going to be necessary, such as a capital increase and the modification of Ageas/Fortis' dividend policy. The Court did not examine the penalties imposed on Mr. Verwilst, as this formed part of a separate procedure before another chamber of the Brussels Court of Appeal. That Court held that the mere fact that violations of specific provisions of the Law had been found to exist was sufficient and that an additional financial penalty such as a fine was not necessary.

With respect to Ageas/Fortis, the Court did not rule on all the breaches upheld by the Sanctions Commission pursuant to the non bis in idem principle. Under this principle, nobody should be tried for acts for which he or she has already been held accountable. Since Ageas/Fortis had already been penalised and fined by the Rotterdam Appeal Court (College van Beroep) in relation to the first three communications, the Court only considered that Ageas/Fortis had breached the Law with respect to the Fourth Communication for the reasons referred to above.

On this basis, the Court annulled the Decision and, consequently, reduced the fines to EUR 250,000 for Ageas and EUR 200,000 for each of Messrs. Votron and Mittler.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions