Off-balance sheet liabilities

Financial guarantees

This item relates to credit-substitute guarantees and non-credit-substitute guarantees that are partly secured by blocked accounts for the same amount.

Credit substitute guarantees are guarantees to customers for loans provided to these customers by other banks. Non-credit substitute guarantees are guarantees to customers for all other obligations of these customers to third parties. For example:

• Obligations to purchase sustainable goods, such as wind turbines.

• Obligations to decommission equipment or reinstate property (mostly related to project finance provided by Triodos Bank).

The decrease of the credit substitute guarantees is mainly due to the conversion, by a client, of a large credit substitute guarantee into a loan agreement with Triodos Bank.

The decrease of the non-credit substitute guarantees is mainly due to the termination of a few large bank guarantees.

Contingent liabilities - Legal proceedings

Triodos Bank is involved in a number of legal proceedings. Management assesses the outcome of litigation matters, and takes provisions when expected losses with respect to such matters are more likely than not. Provisions are not recognised for matters against Triodos Bank for which an expected outflow of resources cannot be reliably estimated or that are not more likely than not to lead to an outflow of resources. Therefore, per year end the following legal proceedings in relation to Depository Receipts (DRs) are regarded by Triodos Bank as contingent liabilities.

Background of the (trading in) DRs

Triodos Bank has had an ownership structure in which depository receipts of shares in Triodos Bank (hereafter 'DRs') were offered to interested investors, rather than ‘conventional’ shares. This capital structure is a generally accepted and common structure for Dutch companies and financial institutions. Currently, there are 43,545 DR Holders (see page Corporate Governance).

DR Holders do not have the voting rights of shareholders but have the economic rights as well as bear the risks associated with the underlying shares, which are in essence dividend rights and an increase or decrease in value of the underlying share. A DR is therefore economically the same as a share.

The DRs were not traded on a stock exchange. Triodos Bank facilitated transactions in DRs on a discretionary basis. In doing so, it was bound by prudential regulations that set a limit on the amount available to buy back DRs, the so-called market making buffer, and hold these on its balance sheet for reselling at a later moment. In the past, such transactions were executed against the net asset value (hereafter 'NAV') of the DRs.

Recent developments

The majority of the current DR Holders are retail investors, family offices and NGOs.

The facilitation of transactions in DRs by Triodos Bank worked well for a long time. With the outbreak of the COVID-19 pandemic early 2020, the number of sell orders greatly exceeded the number of buy orders. Triodos Bank was forced to suspend trading in DRs in March 2020. After resuming trading on 13 October 2020, Triodos Bank was forced to suspend trading again on 5 January 2021.

After careful analysis and consideration, Triodos Bank concluded that the facilitation of transactions in DRs at NAV was no longer tenable. Triodos Bank therefore sought alternative solutions to restore tradability of the DRs and access to new capital and decided to pursue a listing on the MTF platform of Captin.

At the end of 2021, Triodos Bank reported an economic value for taxation purposes of EUR 59 per DR (30% lower than NAV on 5 January 2021, the last price at which Triodos Bank facilitated transactions) to DR Holders. At the end of 2022, the economic value for taxation purposes was estimated at EUR 60.

General remarks regarding litigation against Triodos Bank

After the suspension of trading, the decision to pursue an MTF listing and the valuation of DRs for taxation purposes (which was lower than the last communicated NAV), Triodos Bank received complaints and claims from certain DR Holders and was subject to negative media attention.

Multiple civil proceedings have been initiated against Triodos Bank by DR Holders. These proceedings are currently pending in Spain, the Netherlands, Belgium and Germany. The majority of the ongoing civil proceedings have been filed in Spain by individual DR Holders. Until now, no complaints or proceedings have been lodged or started in the UK.

The outcome of these pending proceedings, and possible future proceedings, is uncertain. The uncertainties are likely to continue for some time. Adverse publicity, litigation or regulatory action could have an adverse effect on Triodos Bank's capital position and results, business, reputation, and prospects. Large volumes of litigation could also lead to increased costs. However, the Bank has not disclosed an estimate of the potential financial effect on its contingent liability arising from these matters where it is not practicable to do so because it is too early or the outcome is too uncertain. A more detailed overview of the pending litigation is included below.

Overview of pending litigation against Triodos Bank

Spain

In Spain, as per 31 December 2022, 218 lawsuits of individual DR Holders in proceedings on the merits have been filed. Plaintiffs are alleging primarily that they were not adequately informed on the risks and characteristics of DRs and that this gives right to annulment of the purchase or a right to compensation. As per 31 December 2022, there had been 14 judgements in first instance in proceedings on the merits in Spain. In 9 judgements, the plaintiff's claims were rejected. In 5 judgements, the claims of the plaintiff were granted. Triodos Bank has appealed these judgements. Due to the appeals against adverse and favourable judgements, none of these judgements has become final and irrevocable.

The Netherlands

Proceedings before Enterprise Chamber

In the Netherlands, Triodos Bank is involved in inquiry proceedings before the Enterprise Chamber of the Amsterdam Court of Appeal. In October 2022, the Stichting Certificaathouders Triodos Bank (SCTB) filed a request for an inquiry into the policy and affairs of Triodos Bank. SCTB is a Dutch Foundation that acts as an organisation representing the interests of a group of DR Holders. SCTB alleges that there are well-founded reasons to doubt the correctness of the policy and/or the correctness of the course of affairs of Triodos Bank in relation to the decisions concerning – amongst other things – the suspension of trade in DRs and the intended listing on the MTF. The Vereniging van Effectenbezitters (VEB) joined the proceedings and supported SCTB's request. Triodos Bank filed a defence and denied the assertions of SCTB and VEB. A decision of the Enterprise Chamber to grant the request for an inquiry or not, is expected in the first quarter of 2023. The outcome of these proceedings and potential adverse impact on the MTF launch or Triodos Bank's business cannot be predicted at the moment of this publication. It should be noted that SCTB has stated that it does not aim to block the launch of the MTF. However, SCTB remains highly critical of the handling of the trade suspension and the communication by Triodos Bank.

If the Enterprise Chamber would order an inquiry, this could have an adverse impact on the launch of the MTF and could lead to delay or termination of the launch. Such an inquiry would also burden Triodos Bank with a lengthy investigation and associated costs and deployment of resources. A negative judgement by the Enterprise Chamber could also lead to an influx of new claims in the Netherlands with a potentially adverse effect on Triodos Bank.

Individual complaints and proceedings

As per 31 December 2022, 18 individual DR Holders had lodged complaints with Kifid, the Dutch extrajudicial body that may give (binding) opinions on consumers' complaints about financial services. As per 31 December 2022, there had been 6 rulings in first instance. In 5 cases, Kifid has ruled that claims are not admissible, which means that these have been denied without a ruling on the merits. One claim was rejected, based on the merits. The other complaints are still pending. No complaints have been upheld by Kifid against Triodos Bank.

Furthermore, one individual DR Holder has requested a preliminary witness hearing to obtain sworn testimony from witnesses in open court to prove his alleged claim against Triodos Bank. These proceedings therefore do not involve a claim for damages. The request was denied in the first instance and currently an appeal is pending.

Belgium and Germany

In Belgium and Germany, respectively, one individual claim each has been filed as per 31 December 2022. Triodos filed a defence in both cases. It is uncertain when judgements will be rendered.

These relate to the total liabilities in respect of irrevocable undertakings, which may lead to a further loan.

In addition to the contingent liabilities and irrevocable facilities reported on the balance sheet, the deposit guarantee scheme and the investor compensation scheme are applicable as stated in Article 3:259 of the Financial Supervision Act in the Netherlands. From May 2019, the funds entrusted from the United Kingdom are insured under the Financial Services Compensation Scheme as defined by the Financial Services and Markets Act 2000 in the United Kingdom. The funds entrusted insured under the deposit guarantee scheme in the Netherlands amounts to EUR 9,214 million (2021: EUR 9,214 million) and in the United Kingdom EUR 1,316 million (GBP 1,165 million, 2021: EUR 1,335 million or GBP 1,123 million). In 2016, the annual ex-ante contribution to the Deposit Guarantee Fund started in the Netherlands in order to reach a target level of 0.8% of the insured funds entrusted in the Netherlands in 2024. The contribution to the Deposit Guarantee Fund amounts to EUR 13.0 million in 2022 (2021: EUR 15.7 million).  

The off-balance sheet commitments as at 31 December can be broken down as follows: