Justice Department looks the other way in Nyrstar case
- Kris Vansanten
- Jan 5, 2024
- 2 min read
Updated: Apr 12
Rik Van Cauwelaert's column is spot on. 'The Belgian judiciary has a regrettable shortcoming: it is no longer able to resolve financial cases such as the Nyrstar case.'
The Nyrstar case is at risk of becoming another example of the most notable Belgian local courts, where the cover-up is the norm. This is a result of a failing legal system, a commissioner who puts personal gain before the interests of the shareholders he is supposed to represent, and a series of service providers who, in exchange for large fees, provide advice that benefits the main player (Trafigura in this case). The complicity of the political class, which, by arguing that it cannot intervene in specific cases, appears to be washing its hands of the matter, is particularly egregious. This is further compounded by the gross oversight of the numerous indications of a failing system, for which the political class, as legislative and executive power, does indeed bear ultimate responsibility.
Nyrstar is just one example of a Belgian company where minority shareholders have been affected by market manipulation, deception or fraud, and the judicial system has not taken action until the statute of limitations has expired. Other notable examples include Fortis, Dexia and Lernout & Hauspie. There are also questions to be asked about more recent cases. Minority shareholders are often the victims, yet when they attempt to defend their interests, they are often met with a well-oiled legal machine designed to protect the interests of the majority shareholders.
The social impact of these situations is enormous. This is not only detrimental to the affected minority shareholders, but also undermines the fundamental trust investors have in the proper functioning of our capital market and in our constitutional state. There has been a notable exodus of investment funds from the Brussels stock exchange, accompanied by a consistent decline in the number of listed companies.
A comprehensive reform of the judiciary is imperative to reverse this trend. However, this will require a significant investment of time and resources, and the likelihood of success is not guaranteed. A potentially more effective approach would be to expand the mandate of the financial services and markets authority (FSMA) to include police and criminal law powers, ensuring its investigative work is not hindered by a slow justice system. This would allow the FSMA to hold those responsible for white-collar crime effectively accountable and to compensate victims for any damages suffered.
This approach is pivotal in rebuilding investor and public trust in the constitutional state and in demonstrating our country's commitment to safeguarding the rights of citizens, minority shareholders, and companies.
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