Fiscal union and the Euro – a modern version of Helen and Cassandra?

| 28-02-2018 | treasuryXL |

There are many reasons for the creation of the Euro – mainly linked to memories of senior politicians who had experienced the Second World War, together with the fall of the Iron Curtain. Countries that trade together, share institutions, and a common currency, are less likely to declare war on each other seems to be the thinking. Furthermore, statesmen explained that economic and monetary union would lead to greater prosperity, increased employment opportunities for citizens and a higher standard of living. Cohesion, convergence, increased wealth and peace were certainly attractive points. So why, after 19 years, have the countries not achieved more convergence?

To truly obtain integration it was always evident that steps would have to be made towards fiscal union – monetary union was just the start. A fiscal system needs to be in place that ensures a form of stability – transferring funds from strong countries to weaker countries. Whilst the Euro has contributed to growth in trade between member states, and certainly citizens have been able to source and price goods and services without an exchange rate risk, it has fallen short on certain goals. Mobility within the labour market was never going to replicate that in America. The national boundaries might have gone, but the language and cultural borders are still present. Therefore, a shortage of labour in Poland, can never be met by an influx of Belgians and Spanish looking for work. Investment capital has certainly not moved as freely as anticipated – the idea that surplus funds from Northern Europe would flow freely to the South and allow them to strengthen their position in the marketplace has remained an idea.

As previously stated the expected convergence of different economies has not happened. In fact, it would appear that they have diverged. There is much information that can be found on the internet that explains how the countries in the South increased wages by a far greater factor than productivity after implementing the Euro. It appears that gaining wage parity with the Germans was more important than actually increasing productivity. These excess wages were invariably spent on well-designed, but expensive, German products resulting in trade deficits with the countries in the North.

Emmanuel Macron – the President of France – has vociferously stated that Europe has to be more politically integrated; have a common defence policy and armed forces; more regulation of business; and a transfer mechanism to transfer funds from rich to weaker countries – a fiscal union.

However, considering that the countries within the EU have actually diverged from each other on the basis of GDP, inflation, Government debt, unemployment etc. since the inception of the Euro, and even more so since the start of the financial crisis, there is an inherent danger in transferring funds.

The word transfer implies not only something going from A to B, but also from B to A. The disparity within the economies would mean that the transfer would only be going in one direction for a very long time in the foreseeable future. The political implication is profound – would people from countries that are considered rich accept a long term action that would see their wealth reallocated to weaker countries. Some supporters might say that this just a matter of semantics – however the consequences are far reaching and permanent.

Which brings us round to Cassandra – when recollecting stories from Greek mythology people have a good knowledge of the story of Helen of Troy. One of the minor characters, but a very important one, is Cassandra. She who received the gift of prophecy but was cursed never to be believed. She warned about the fall of Troy, the Greeks hiding with the Trojan horse and the war that would happen when Paris fell in love. No one listened to her. There are many politicians and economists who have previously tried to warn about the problems within the Eurozone. Some voiced their opinions even before the Euro existed – but their voices were also dismissed.

There have been more than 50 infringements by member states on the criteria of the Euro since its inception. No sanctions or punishment were ever handed out. To think that things will be different in the future is wishful thinking. In almost a decade since the financial crisis, there has been no structural solution to the inequalities within the Euro and their members. We are almost 10 years further and the differences are even greater and still not resolved. Further integration whilst not acknowledging and addressing the imbalances can only lead to further divergence.

If you want more information please feel free to contact us via email [email protected]

 

Cashforce raises €2 Million to accelerate international rollout

| 27-02-2018 | Nicolas Christiaen | Cashforce | sponsored content |

Cashforce, a fintech leader in Cash forecasting & Treasury solutions for corporates, announced today that it has closed € 2 million in Series A financing. The internal funding round was led by Volta Ventures and Michel Akkermans (Pamica NV), reinforcing their previous commitment to the company. The Series A financing enables Cashforce to accelerate the ongoing international roll-out and fuels its rapid global growth and industry leadership as a premier provider of Cash forecasting & Treasury solutions. Organisationally, staff will be expanded, and operations will be scaled up – with a significant number of new hires in 2018. Product-wise the company is working on developments that will enable even more insights and potential savings for its clients. Commercially, supporting and growing the customer base and increasing customer success and adoption as well as continuing to build strategic partnerships and alliances are part of the strategic plan.

“Cash management & Treasury is evolving from a focus on data acquisition to Treasury automation and data analysis, enabling Treasury departments to bridge the gap between the Finance and other operational departments and enable data-driven strategic decision making. On top of that, Cash flow forecasting has become the major focus of the industry.”, said Nicolas Christiaen, CEO and co-founder of Cashforce. “This investment also re-confirms our investors’ confidence in the leadership that Cashforce has established in the Treasury space, our continued rapid growth and the potential to re-define the category.”

Additionally, Cashforce announced that Michel Akkermans will become Chairman of the board. Michel Akkermans is a serial entrepreneur in fintech companies. Amongst others, he was the Chairman and CEO of successful companies such as FICS and Clear2Pay. After the global payment solution company Clear2Pay was acquired by FIS in 2014, he became an active investor and board member in several companies and private equity organisations, as well as a venture partner and Chairman of Volta Ventures.

Cashforce: The Leading Cash forecasting platform for the Modern Corporate

Cashforce is a next-generation Cash forecasting & Smart Treasury Management System, focused on automation and integration for corporates. It helps corporate finance/treasury departments save time and money by offering accurate cash flow forecasting, pro-active working capital management analysis as well as flexible Treasury reporting & automation.

Cashforce is unique because it offers full transparency into what exactly drives the cash flow of mid-size & large corporates with different complexities such as multi-entity, multi-bank, multi-currency and complex ERP(s). Smart algorithms are applied to generate highly accurate Cash forecasts. The intelligent simulation engine enables companies to consider multiple scenarios and measure their impact. Its intuitive user interface allows for extensive and tailor-made analysis & reporting possibilities. Unlike other enterprise software players, the platform is set up quickly, even in the most complex environments, and connecting seamlessly with any ERP system through its ‘plug-and-play’ connectors. As a result, finance/treasury departments can be turned into business catalysts for cash generation opportunities throughout the company.

“While we started off as a Cash forecasting tool, we have added Advanced Working Capital analytics and Smart Treasury functionalities, and are now operative as a comprehensive modular Treasury Management System (TMS). This makes Cashforce a one-stop-shop for the many analytical and operational practices that benefit Financial and Treasury departments,” says Nicolas Christiaen, CEO of Cashforce. “The endorsement we get from both industry experts and clients progressively confirms that our solution really does bring change into the Treasury market. We now see that potential customers compare the classical TMS providers to Cashforce with Cashforce ending up as the preferred solution! Then you know you’re on the right track. We therefore strive to continue our vision to further integrate and automate to provide our customers with an even more effortless experience.”

“Cashforce has brought a very compelling solution to the corporate Cash management market, which is clearly seen in its results. Since its last financial injection in early 2016, Cashforce has demonstrated a rapid growth, including well over 100% annually recurring revenue growth”, explains Michel Akkermans, the company’s recently appointed chairman.
“With a surge in employees to over 25, an increasing and global interest from the market and partnerships with leading corporate banks, private equity firms & Treasury consultants, Cashforce has been expanding both reach and product. We have heard back from multiple existing customers about their positive experiences with the solution and its impact on their business, and they strongly believe in its trajectory moving forward”.

“Cashforce set foot in the Netherlands this year and has been growing substantially, proving that the company can be scaled up relatively easy,” says Nicolas Christiaen. “This would not be the case without the help of Volta Ventures and Michel Akkermans, who not only provided funding, but also lent their vast strategic experience in our market. The plans for Western-Europe as well as the US are outlined, and this funding round will be valuable to accelerate the international roll-out.”

About Cashforce (www.cashforce.com)
Cashforce is a ‘next-generation’ Cash forecasting & Smart Treasury platform, focused on integration and automation. With its technology, Cashforce is helping Treasury departments from large capital-intensive businesses save time and money by offering cash visibility & pro-active cash saving insights. The platform is easy to use and install, and connects seamlessly with any ERP system. Cashforce is headquartered in Belgium with an office in Amsterdam and New York, serving customers globally such as TomTom, Hyundai and Greenyard among many others worldwide.

About Pamica (www.pamica.be)
Pamica is the investment company of Michel Akkermans.

About Volta Ventures (www.volta.ventures)
Volta Ventures Arkiv invests in young and ambitious internet and software companies in the Benelux. The fund has € 55 million under management and is supported by EIF and ARKimedesFund II.

Press Contact Information
Nicolas Christiaen – [email protected] – +32 479 65 52 95
Michel Akkermans (Pamica NV) – [email protected] – +32 3 202 40 30

 

Looking back after 10 years of SEPA

| 26-02-2018 | Paul Stheeman |

Cash Pooling

 

Last month we saw the anniversary of several historical moments. 1000 years ago, in January 1018 the Peace of Bautzen ended the German-Polish War. More recently, in January 1998, American President Bill Clinton surprised the world by denying in a press conference that he had sexual relations with Monica Lewinsky. More importantly for Treasurers and the citizens of Europe January 2018 marks the tenth anniversary of the establishment of SEPA, the Single European Payments Area.

 

In Europe we have become used to SEPA. Initially we all groaned at the idea of having 22-digit long bank accounts numbers called the IBAN, nicknamed as “IBAN the Terrible”. But the introduction of SEPA in January 2008 has brought a number of benefits to over 520 million citizens in Europe. Not only are the 19 Eurozone countries members of SEPA. All other EU countries participate as well as countries such as Norway or Switzerland.

The main benefit is that we now have one payment zone. Previously, making a transfer from Italy to the Netherlands was a cross-border payment. This meant that a whole week could pass between the time when the payer initiated the transfer in Italy and the recipient actually received the funds on his Dutch bank account. In addition, banks in both countries would charge considerable fees for making the transfer. Payment is now done within 24 hours and banks should not charge more than for a domestic payment.

SEPA not only covers transfers. Direct debits and debit cards also are handled in a similar manner through SEPA. And a new instant payment scheme is currently being rolled out, allowing payments to be completed within seconds on a 24/7/365 basis.

SEPA is also strongly regulated. The European Commission established the legal foundation through the Payment Services Directive or PSD. Payment products are overseen as are technical standards.

In the last ten years SEPA has established itself as being the platform for payments in Europe. Due to its wide acceptance and success in its first decade it is likely to accompany us for many years ahead as new payment methods are developed in the digitalised world.

 

Paul Stheeman

Owner of STS – Stheeman Treasury Solutions GmbH

 

Internal Fraud – or how not to cheat yourself

| 22-02-2018 | Lionel Pavey |

Most companies, regrettably, experience internal fraud. The financial value of the loss can be small or large – however the impact is the same. Internal investigations, procedural reviews, the time spent on detection, possible prosecution, together with the potential loss of reputation are significant factors above and beyond the monetary loss. Fraud can never be eliminated, but the threat can be minimised through proper procedures.

Fraud is normally caused by false representation, failure to disclose information and abuse of power and position. As fraud is performed by people and their actions, a first step to prevent fraud would be to look at the current working environment within a company. If a company is putting extra stress on employees – bigger targets, loss of overtime payments, reductions in secondary benefits, no pay rises nor promotions etc. whilst the directors receive bonuses– this can lead to employees becoming aggrieved  and seeking retribution. Furthermore, employing more temporary staff and external contractors, can distance the remaining employees and challenge their allegiance and loyalty.

Internal procedures

One of the least sexy components within a company is internal procedures. They need to be drafted, amended, agreed, published, implemented and reviewed on a rolling basis. Very few people enjoy writing these manuals, but they are essential to ensure that everyone is aware of the correct procedures that have to be followed to perform any tasks. Often there is talk of a “four eyes principle”. Personally, I have always believed in a “six eyes principle” as it requires more independent control and makes fraud less easy to perform. Most of the procedures are, of course, built  around common sense. Duties should be segregated – different departments have different roles to perform in ensuring the complete procedure is followed throughout the company. Even within a single department, attention should be paid to segregating duties.

An example would be the administrative function relating to a purchase. There are 4 distinct stages – procurement, arrival, warehousing and dispatch/shipment. If one member of staff was responsible for the relevant data input for all 4 stages, there is an increased risk that fraud could take place. This is not to say that work should be segregated that one employee only ever does one function – this could also lead to fraud either through disenchantment or over familiarity of the systems and procedures used at one specific point in the production chain.

External procedures

Certain departments within a company have contact with external sources – suppliers, clients, financial institutions. Anyone who has contact with an external counterparty can be swayed by opportunity if the controls are not in place. In respect of purchasers – what contact do they have with suppliers outside the office? Are they entertained – restaurants, sports events etc? How often do they have contact? In respect of sales – are they responsible for determining the sales price? How often do they see clients and spend money on them? The same also applies to treasurers, cash managers, risk managers etc.

The necessary checks and balances need to be put into place. A record of all contact with external parties needs to be kept, updated, verified and stored. Temptation can be caused by personal hardship, flattery or grievance at how the person is perceived to being treated by the company.

Standing up to the boss

As stated, a healthy company should have procedures and statutes in place. These need to be adhered to at all times – there can be no exceptions. However, a mechanism for escalation is often missing. Example – someone sends in an expense claim approved by their manager. The treasurer or controller might question the veracity of a particular entry. A proper mechanism to escalate the discrepancy needs to be firmly established. That a manager has signed off on the expense claim does not mean it is correct.

Even directors have to make sure that their claims are signed off by other members of staff. Being at the top does not mean that the procedures do not apply. Requests for a priority payment outside of the agreed procedure should always be questioned. If everyone has agreed to the standard procedures, then there can be no justification to make a payment outside of the normal procedure, just because it has been deemed a priority. If truly deemed necessary, then authorisation must be given not only by management and directors, but also by the legal department. If this occurs, then the existing procedure needs to be examined as to why the incident occurred and where the procedure broke down. This all has to be detailed in writing – fraud can happen at the highest level as well as low down with an organisation.

Static data

Every contact both inside and outside of the company should be recognised and recorded in a data system. Static data refers to all relevant data concerning an entity – full name, registered address, bank details, contact details etc. This data should be fed into all other systems, but data input should be restricted to a small number of employees. These employees should not have access to any of the systems that are used to input data relating to daily operations.

Another key area is in the cash management side – book keeping can be complex and differences not noted until the yearly audit. However, cash movements contain plentiful details – name of beneficiary, account numbers etc. This can be reconciled against the prevailing static data – are the bank account numbers the same?

Fraud can never be eradicated, but by being open, allowing questions to be asked, even performing unexpected checks on the system and its integrity, and creating an atmosphere where staff know that they can question without fear of reprisal, then at least everyone will know that the company is alert and vigilant.

That knowledge and awareness will make a potential fraud think twice.

 

High Road or High Horse?

| 21-02-2018 | Pieter de Kiewit |

I want to include you in my search for what is right. Newspapers don’t publish what is right but what sells (for the Dutch, why did the Volkskrant publish the story of Jillert Anema this week?). Politicians don’t work from their convictions but what gets them votes. Large companies pay low level taxes in countries where they don’t manufacture & sell, and no taxes where they do. Actions that benefit the environment are not implemented because it weakens our position in global markets.

Now I am not known for being politically active or interested. Many of my clients are corporates that are in the line of fire following the whole Panama Paper affair. So understanding what is happening would make sense, perhaps I could even form an opinion. So far, this is what I see and think:

• Newspapers created news by publishing what has been known for a long time. As far as I can oversee there were no convictions in The Netherlands based upon the Panama Papers;
• Poor countries are put in off side position when it comes to receiving taxes;
• Politicians created the rules and now shout from their high horse that corporates, following their rules, lack proper business ethics;
• Large corporates are able to hire the best tax lawyers and enjoy the largest tax cuts;
• Newspapers pick the corporates with the most prominent brands as an example and do not tell the story of both sides.

This equation has (too) many variables. I think Joris Luyendijk’s remarks about being immoral or amoral (https://www.theguardian.com/sustainable-business/2016/jan/18/big-banks-problem-ethics-morality-davos) are very relevant. The difference between “I follow the rules” and “I follow the rules and think about if they are right and enough”.

Given the fact that the revenue of the large corporates is bigger than the GDP of many countries, we cannot solve the problem locally. We cannot decide for other countries but we can decide for our own. Do we want to be on our high horse and economically weak? Would that be taking the high road? I am afraid I do not oversee the full picture. If I do, am I willing to accept the consequences as a consumer, entrepreneur and employer?

Would you?
Pieter

Pieter de Kiewit
[email protected] / +31 6 1111 9783

Pieter de Kiewit

 

 

Pieter de Kiewit
Owner Treasurer Search

 

 

EU Budget – the effects of fiscal policy

| 20-02-2018 | treasuryXL |

Every year the EU raises money by applying a levy on member states that represents a percentage of their Gross National Income (GNI). The EU Budget operates on a 7 year plan and then an annual budget is proposed and agreed. The EU strives to use 94% of expenditure on policies and 6% on administrative costs. As with all budgets, there are 2 sides – income and expenditure. There are 4 main sources of income – traditional own resources, VAT (BTW) based resources, GNI based resources, and other resources. There are 6 main sources of expenditure – growth, natural resources, security and citizenship, foreign policy, administration, and compensations.

Furthermore, there are a number of correction mechanisms designed to rebalance excessive contributions by certain member states, including – the UK rebate, lump sum payments, and reduced VAT (BTW) call rates. On the expenditure side, Growth and natural resources – which include the common agricultural and fisheries policies – account for more than 90% of expenditure. Every country within the EU makes contributions and receives expenditure within their state from the EU. The difference represents the net contribution per country per year.

When a country pays a net contribution, the excess funds are redistributed within the EU to other member states. This payment to other member states is a fiscal transfer. Information relating to the sum of fiscal transfers used in this blog were sourced at – www.money-go-round.eu

This website shows gross payments, gross receipts and net balance per country per year from 1976. The top 5 net payers since 1976 have been Germany, France, the united Kingdom, Italy and the Netherlands. These 5 countries have contributed a net balance of EUR 925 billion. Conversely, the top 5 net receivers since 1976 have been Greece, Spain, Poland, Portugal and Ireland. These 5 countries have received a net balance of EUR 410 billion. This is a redistribution of both income and wealth.

Classically, the objectives of redistribution of incomes are to increase economic stability and opportunity for the less wealthy members of society. This should lead to a society where financial wealth is more evenly divided, increasing the standard of living among the poorer members. Without this mechanism, there is more risk of economic crises and less harmony between citizens of different social classes. One of the main questions has always been how long and beneficial this transfer should be. There is a danger that some people become permanently dependent on the transfer and do not actually improve their own living standards – they are seen to consume more, but not to improve their standard of living.

So how does it look within the EU?

The country that has received the most from fiscal transfers has been Greece. They ascended to the EU (in its previous incarnation) in 1981. They have been a net receiver of the EU budget for every year since 1981. In total, they have received EUR 118 billion in transfers. What Greece ever did with all this money is the subject of many articles – but it does not appear that the money was used to raise the living standards of the poor or invest in the infrastructure of Greece.

And therein lies the major problem for the EU – the mechanism used for redistribution has had no long term beneficial effect on the economy. There is no system of checks and balances to control what is done with the money. The ECB published a report at the start of 2017 about household finance and consumption in the EU. Its findings were that disparity was growing within the EU. Other reports have highlighted that whilst eastern Europe has seen large rises in GDP per capita growth, this added wealth has not been distributed evenly among all residents.

The ideals of the EU are worthy and noble – their implementation and management however, are not creating the society that they dreamt and spoke about.

Next – can fiscal union work?

 

If you want more information please feel free to contact us via email [email protected]

Are public debts sustainable?

| 19-02-2018 | treasuryXL |

A few weeks ago the EU Commission released a report on debt sustainability within the EU. It provides an overview of the challenges faced by member countries over the short, medium and long term to meet the original convergence criteria – specifically, that existing Government debt is less than 60% of GDP. As with most Government related documents it is long – over 250 pages. A lot of attention is drawn to the Debt Sustainability Monitor (DSM) and the challenges faced to achieve the abovementioned criteria by 2032.

Any forecast is open to different interpretations, especially one that looks 15 years into the future. At the end of 2017, 15 of the 28 countries within the EU (in other words more than 50%) have Government debt that exceeded 60% of GDP. The average ratio for all 28 countries – on the basis of the sum of all Government debt and all GDP – is 83%. Let us focus on those 15 countries who, currently, do not meet the criteria. The figures for this article have been taken from the following website – debtclocks.eu

 

 

 

 

 

 

 

 

 

 

This shows the countries – ranked by the current Debt to GDP ratios – from high to low. 3 countries have been highlighted in yellow as their figures have been originally shown in their own currencies. For the sake of comparison these figures have been converted into EUR.

Assumptions

  • The current debt will remain constant for the next 15 years. Debt that falls due for redemption is rolled over – no new additional debt is assumed.
  • The criteria in 2032 is that the debt is 60% of the GDP at the end of 2032
  • The current debt is assumed to be 60% of the GDP at the end of 2032
  • Projected GDP at the end of 2032 is adjusted so that it is a factor of 1.67 larger than the debt
  • A constant annual growth rate is determined whereby the existing GDP at the end of 2017 will constantly grow to equal the expected GDP at the end of 2032.

Results

The top 7 countries have debt ratios around 100% or higher of GDP at the end of 2017. The constant annual growth rates that they would have to achieve under the scenario shown above are all greater than 3% per annum.

Annual growth rate since 1996 for the EU have averaged 1.7% – before the financial crisis there was an annual growth of 2.5%. For the last 10 years since the crisis, the average annual growth rate within the whole EU is just 0.8%. Even in 2017, the growth was just 2.5% – back at the same level as before the crisis. The data for this part came from tradingeconomics.com

It would be appear to be presumptuous to expect future annual GDP growth to consistently exceed the current long term trend. Of course this is a scenario relying on only 1 factor – namely growth in GDP to meet the 60% criteria – whilst ignoring any other possible factors.

Conclusion

As constant growth, as shown above is, not realistic, then other factors will have to come into play if the long term scenario relating to debt criteria is to be achieved. If not through growth, then either through increases in Government receipts (more taxes or selling of national assets) or decreases in Government expenditure (less subsidies, pensions, smaller investments).

Or……………..through fiscal union leading to transfers from the “richer” countries.
Next we will look at the history of fiscal transfer within the EU.

If you want more information please feel free to contact us via email  [email protected]

 

IFRS 16 – a new lease of life

| 16-02-2018 | Lionel Pavey |

Leasing is a common method used in business to benefit from using an asset. The part owning the asset is called the lessor who agrees to allow the user – the lessee – to use the asset, in return for a rental fee. The lessee also has to agree to certain terms and conditions as to how the asset can be used and by whom. This arrangement allows a business to enjoy the benefits of an asset – normally property or equipment – without having to purchase the asset outright at inception. The contract can also offer flexibility to the lessee with regard to replacing an asset when it is determined to be outdated. On the 1st January 2019, new accounting standards will be implemented meaning that for a lessee all lease contracts will have to be displayed on the balance sheet – with exception of short dated leases (less than 12 months) and with a monetary value of less than USD 5000.

Impact

There will be no more off balance sheet constructions. The balance sheet of a company will grow, as all leases are included. This would lead to a growth in both assets and liabilities. Furthermore, there will be no distinction between an operating lease and a financial lease as happens now. Under the new regulations a lease contract will be split between the right of use of the asset and the service component costs (including interest expenses) that will now appear as an expense on the profit and loss statement. For businesses that have traditionally relied on lease contracts – aircraft, shipping, heavy industry – there will be a noticeable impact.

Consequences for lessee

This will lead to considerable changes in the standard financial ratios and metrics that a business uses – EBITDA, interest coverage ratio, net income, operating profit, earnings per share, return on equity etc. By placing all lease contracts on the balance sheet, a further effect could be felt on borrowing costs, bank covenant compliance and even credit ratings. There will also be more costs and work involved in complying and maintaining the regulations. It will lead to an increase in debt on the balance sheet. The changes could be so large that some businesses will reconsider if an asset should be leased or purchased outright. This could lead to major reviews and renegotiations of existing contracts.

Whilst this is a change that impacts on the accounting side of a business, the knock-on effects will be visible to a treasury department. It will be necessary to collaborate internally and project the impact on existing bank covenants, other lending facilities and the financial metrics that are used.

Lionel Pavey

 

Lionel Pavey

Cash Management and Treasury Specialist

 

 

GDPR and its effects on the bottom line

| 15-02-2018 | treasuryXL |

On the 25th May 2018, GDPR – regulation by the European union – will come into effect. It requires any company that does business within the EU to protect the privacy relating to the data held on consumers, as well as restricting the types of data that can be collected. Obviously, this will mean extra expense for companies as they have to invest in systems and procedures to meet their obligations. However, a recent report by Deutsche Bank has shown that the implications of implementing GDPR could also have an impact on revenue.

At present, large companies like Facebook and Google collate data about their users. Mainly, this data is used to present advertising to the individual based on the analysis of the data showing where they have clicked onto etc. The scope of GDPR is very large and such large companies would not be able to deny access to their users if they decide to opt out of data use.

GDPR defines a principle of purpose limitation, This states that personal data must only be collected for specified, explicit and legitimate purposes and not furthered processed in a manner that is incompatible with those purposes. This could impact on the revenue stream of such companies.

Google receives approximately 33% of their revenue from Europe. Deutsche bank concluded that if 30% of European users opted out of data sharing, this could affect revenue by 2%. Google and Facebook receive around 75% of all online advertisement spending.

At the same time, research suggests that a quarter of a billion users of news site readers have already installed ad-blockers.

The effects on revenue for websites that actively use data supplied by the actions of their users is difficult to quantify, but it will have an impact. Companies will have to look closely at their projected revenue from online advertising and ask if the figures are too optimistic in the light of this legislation.

If you want more information please feel free to contact us via email [email protected]

 

De 403-verklaring van Shell inzake de NAM. Een analyse.

| 14-02-2018 | Theo Paardekooper |

 

De juridische en fiscale structuur van een groep van ondernemingen is een belangrijk onderdeel van het framework waarin een treasurer zijn werkzaamheden verricht. Bij het aangaan van aansprakelijkheid voor het uitvoeren van een groot bouwkundig project, het geven van borgstelling voor financieringen en het sluiten van cashpools is deze juridische structuur een belangrijk item. Ook het publiceren van informatie aan de markt is hierin een onderwerp.

 

 

Uit informatie van de Kamer van Koophandel blijkt dat op 8 juni 2017 Shell de voor NAM verstrekte 403-verklaring heeft ingetrokken. De NAM heeft op 2 juni 2017 haar jaarrekening over het boekjaar 2016 gedeponeerd. De Groningse inwoners maken zich echter zorgen. In hoeverre kan hun toekomstige claim betaald worden door de NAM? Wat als deze claim niet financieel gedragen kan worden? Welke rechten hebben partijen met een claim en wat is de impact nu voor Shell? Op deze vragen volgt in dit blog een antwoord.

STERKMAKING AAN DOCHTERMIJEN EN DE 403-VERKLARING

Sterkmakingsverklaringen van moedermijen aan dochtermijen zijn een bron van juridisch conflict. Een bekend voorbeeld hierin is de Ceteco affaire. Moedermij handelshuis Hagemeijer had een sterkmakingsverklaring afgegeven voor de financiering van haar dochtermij Ceteco. Toen deze dochter failleerde bleek dat zowel de banken als de provincie Zuid-Holland een grote oninbare vordering hadden, die uiteindelijk niet verhaald kon worden op de moedermij. De toenmalige Commissaris van de Koningin Leemhuis-Stout moest om deze affaire aftreden.

De 403-verklaring is ook een sterkmaking van de moedermij aan haar dochter. Maar wat betekent deze sterkmaking? Banken sluiten per definitie hun eigen hoofdelijke aansprakelijkheids aktes naast deze 403-verklaring. Omdat de 403-verklaring door de moedermij eenzijdig kan worden opgezegd, willen de banken niet verrast worden door deze plotselinge intrekking van de aansprakelijkheid van de moeder.

De 403-verklaring is in essentie bedoeld om de administratieve lasten te verlagen en biedt de mogelijkheid om informatie van dochters voor concurrenten geheim te houden.
De aansprakelijkheid uit hoofde van de 403-verklaring reikt verder dan vorderingen die rechtstreeks voortvloeien uit rechtshandelingen. Ook vorderingen tot schadevergoeding wegens vernietiging of ontbinding van een overeenkomst vallen hieronder, maar vorderingen uit hoofde van een belastingaanslag of onrechtmatige daad zijn weer uitgesloten.

IMPACT VAN INTREKKING

Terug naar Shell. Wat houdt de door Shell afgegeven 403-verklaring in? De 403-verklaring betreft een verklaring naar aanleiding van art 2:403 van het burgerlijk wetboek. Hierin staat dat een dochtermij geen jaarcijfers hoeft te publiceren mits (lid f) een rechtspersoon (in dit geval Shell) zich hoofdelijk aansprakelijk stelt voor de uit de rechtshandelingen van de vennootschap (NAM) voortvloeiende schulden.

Het intrekken van de 403 verklaring is in artikel 404 beschreven. In lid 2 staat hierin echter vermeld dat de aansprakelijkheid blijft bestaan voor schulden die voortvloeien uit rechtshandelingen die zijn verricht voor de intrekking van de verklaring. Schuldeisers hebben 2 maanden de tijd om zich te verzetten tegen intrekking van een 403 verklaring. Voor bestaande verplichtingen blijft de hoofdelijkheid gehandhaafd.

Het verhalen van de aardbevingsschade op NAM valt echter niet binnen de 403 verklaring van Shell. Deze schade wordt namelijk betiteld als een onrechtmatige daad. Pas als de NAM een schikking zou treffen, dan komt de 403-verklaring weer om de hoek kijken.

Wat gebeurt er nu bij een claim? Kan NAM zelf de schadevergoedingen van de Groningers betalen?
Uit de jaarrekening over 2016 blijkt dat NAM 60% van de schadevergoeding voor haar rekening neemt. In 2016 is EUR 98 miljoen onttrokken aan een voorziening; groot EUR 495 miljoen.
In 2016 is het personeelsbestand met ca. 500 fte ingekrompen. Deze reorganisatie was ingezet als gevolg van lagere omzet en hogere operationele kosten, o.a. voor schadevergoeding van het Groninger gasveld. De netto winst over 2016 bedroeg EUR 526 miljoen. Hiervan is EUR 469 miljoen aan dividend uitbetaald aan de aandeelouders Shell en Exxon. Het eigen vermogen van NAM is met EUR 197 miljoen bescheiden. De bezittingen van NAM betreffen met name de waarde van de toekomstig winbare reserves van EUR 3 miljard. Ergo, NAM kan alleen betalen als het gas uit de grond blijft halen en daarom is een 403-verklaring van Shell voor de inwoners van Groningen een belangrijk zekerheidsinstrument, mits een schikking wordt getroffen.

Maar is de terugbetaalcapaciteit van NAM relevant bij een 403-verklaring? Feitelijk is het antwoord “nee”. De Hoge Raad heeft bepaald in het AKZO-ING arrest dat er geen sprake is van een borgtocht, maar dat sprake is van hoofdelijkheid van de moeder. Dit betekent dat niet eerst NAM de verplichting hoeft te voldoen, maar direct Shell kan worden aangesproken op een schadeclaim.
Praktisch zal eerst NAM een claim krijgen, maar Shell kan zich niet verschuilen achter NAM.

IFRS IMPACT

Shell consolideert NAM in haar jaarcijfers. NAM wordt als een joint operation in IFRS geclassificeerd. Na het intrekken van de 403-verklaring zal Shell de NAM blijven mee consolideren. Het wordt nog wel interessant of de accountant in staat blijft om een goedkeurende verklaring aan NAM te blijven geven. De huidige voorzieningen voor de aardbevingsschade zijn immers te laag. Als de gaskraan verder wordt gesloten, dan kan de NAM niet anders, dan hulp van haar moedermijen vragen, voor de waarborging van haar continuïteit.

What’s in it for Shell? Doelstelling was om het publiek duidelijk te maken hoeveel de staat aan de gaswinning verdient en hoeveel NAM. In de verdeling van de schade is informatievoorziening belangrijk. Echter, het intrekken van de 403-verklaring was hiervoor helemaal niet nodig.
Subsidiair is het verkrijgen van een betere onderhandelingspositie tegenover de overheid een uitgangspunt. Maar het is echt naïef van Shell/NAM om te veronderstellen dat hierin enig voordeel te behalen valt. De publieke opinie doet hierin haar werk.

CONCLUSIE:

Nu Shell heeft verklaard om op papier garanties te verstrekken voor de aardbevingsschade is mijn advies aan Shell om de 403-verklaring weer bij de KvK te deponeren. Alle beperkingen aan de garantie zullen via politieke en publicitaire druk worden aangevallen, leidend tot een veel grotere imagoschade.

De Brent Spar ontmanteling en de daaraan gekoppelde boycot van Shell producten in Nederland en Duitsland zal menig oud gediende bij Shell nog goed in het geheugen liggen.

Een geruststellende gedachte voor de Groningers.

 

Theo Paardekoper 

Independent treasury specialist