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Arbitration
The minister of justice recently submitted a draft bill to Parliament to modernise the Arbitration Act 1986. The aim of the draft bill is to make the Netherlands more attractive as a seat for arbitration. This is to be achieved by, for example, codifying best practice to enable the parties to tailor the arbitration to their needs and making it possible to limit annulment proceedings to a single instance.
In the event that the parties cannot agree on the appointment of arbitrators within the period specified by the applicable institutional rules of arbitration, the Arbitration Act allows them to request the president of a district court to appoint the arbitrators. This provision has been further clarified in a recent case, in which the Dutch courts adopted a pragmatic approach.
Judicial review for quashing arbitral awards
The District Court of The Hague recently rejected a claim to annul an arbitral award rendered in favour of Croatia against Austrian casino company Adria Beteiligungs GmbH. After its earlier case in which it upheld an arbitral award rendered in proceedings against Ecuador in favour of US energy company Chevron, the court again showed that Dutch courts are arbitration friendly and reluctant to quash arbitral awards.
Two first instance district courts put aside arbitration agreements for reasons of reasonableness and fairness in cases concerning third-party or impleading proceedings. Even though the Netherlands has a sophisticated arbitration law and Dutch courts generally observe and respect valid arbitration agreements, courts may find that there are compelling reasons to disregard a contractual arbitration agreement.
A number of arbitration institutions have made it possible for parties to request interim measures prior to the constitution of the arbitral tribunal from a so-called 'emergency arbitrator'. Meanwhile, where parties choose for the seat of the arbitration to be in the Netherlands, in urgent cases they can opt for tried and tested summary arbitral proceedings under the Dutch Arbitration Act.
Banking
In a recent letter to Parliament, the minister of finance outlined the possible introduction of legislation that would force banks to separate their commercial banking, investment banking and proprietary trading activities if they were combined in a single banking organisation or group. The plan follows the adoption of similar rules in the United Kingdom and the United States.
There are likely to be a number of key developments in legislation and compliance to be handled by banks in the Netherlands in 2012. For example, at the start of the year a number of amendments to the Act on Financial Supervision and certain lower government decrees will enter into force to meet the implementation requirements of the EU Capital Requirements Directives II and III.
With the introduction of the revised EU Capital Requirements Directive (CRD IV), European banks and investment firms will be subject to a new set of capital requirement rules. In order to address uncertainties arising from the fact that CRD IV has not yet been adopted and transposed into the law of the EU member states, the Dutch Central Bank has published further guidance on the policies in this area.
The development of liquidity risk management
The Regulation of the Dutch Central Bank Liquidity Act on Financial Supervision 2011 represents a significant step forward in shaping comprehensive regulations for liquidity risk management in the Netherlands. According to the Dutch Central Bank, it was introduced to address the fact that although certain assets were appraised as sufficiently liquid, the banks did not actually have the requisite liquidity when markets collapsed.
Company & Commercial
In a nutshell - one-tier boards
Parliament has adopted an act on one-tier boards which amends the rules on management and supervision within private companies with limited liability (BVs) and public companies with limited liability (NVs). The act's provisions on the board structure within BVs and NVs include changes to the legal basis for the one-tier board system and an amendment to the conflict of interest rules.
A bill on shareholders' rights recently came into force, aiming to strengthen shareholders' rights in Dutch public companies with limited liability whose shares are admitted to trading on a regulated market in the European Economic Area. The bill includes new rules on the notice for the general meeting and the amendment of a shareholder's right to request inclusion of an item on the agenda of the shareholders' meeting.
The Second Chamber of Parliament recently approved the Bill on Management and Supervision. Among other things, the bill provides a legal basis for a one-tier board of Dutch companies and introduces new rulings regarding conflicts of interest. Within the context of the debate on the bill, the Second Chamber approved an amendment concerning the maximum number of supervisory positions that one person may hold.
As a general rule of Dutch law, only a company is liable for its obligations. However, pursuant to Dutch case law, an (indirect) shareholder may be held liable - in addition to the company - by the company's creditors if the shareholder has acted tortiously towards them. In certain circumstances the Supreme Court has accepted the possibility of piercing the corporate veil in relation to shareholders.
The Financial Markets Authority has established that shareholders of issuing institutions tend to exercise caution when holding mutual consultations with other shareholders, as such consultations can qualify as acting in concert. It has therefore issued guidelines on when shareholders will be deemed to be acting in concert, with the aim of stimulating consultations between shareholders.
Demand for increased competition among limited liability companies and developments in various EU countries have led to a legislative proposal on the simplification and flexibility of the Law on Private Limited Liability Companies. The purpose of the proposal is to create a more flexible and simpler regime for limited liability companies.
Competition
Unfair trading practices initiatives at national, EU and European Competition Network level initially focused on the food supply chain, but have now been extended to other areas. At the national level, pilot schemes have been set up with a number of representatives of the agro-food sector and the textiles industry to implement a code of conduct.
The East Netherlands District Court has ruled that ABB must compensate Dutch electricity grid operator TenneT for damages that it suffered as a result of the gas-insulated switchgear cartel. The exact amount of damages to be paid to TenneT will be determined in separate proceedings. This is the first substantive ruling on cartel damages in the Netherlands.
The Trade and Industry Appeals Tribunal has resolved a long-running dispute on the scope of a company's right to remain silent. It ruled that ex-employees can invoke this right when questioned by the Competition Authority – now the Authority for Consumers and Markets – in connection with an investigation into their former employer.
The healthcare sector is likely to stay on the radar of the Authority for Consumers and Markets (ACM). Not only has the application of the separate notification thresholds for concentrations in the healthcare sector been extended by another five years, but the number of hospitals intending to merge is also rising: the ACM expects a minimum of seven hospital mergers during 2013 and has designated the healthcare sector as a priority.
The Hague District Court recently clarified that if the Competition Authority has a reasonable suspicion about an undertaking, it can order third parties to cooperate and provide data regarding that undertaking which otherwise would not be available. However, the authority cannot order third parties to help it proceed against undertakings about which it has insufficient suspicions.
The Rotterdam District Court has overturned a Competition Authority decision to impose fines on two supervisory board members. The court held that supervisory directors cannot be held personally liable for competition law infringements, except in exceptional circumstances.
Corporate Tax
Overview
Including: Significant Signs of Improvement; New Ruling Policy; Legislative Initiatives.
While the new tax treaty between the Netherlands and the United Kingdom was ratified in the United Kingdom in 2009, the first part of the Dutch ratification procedure has only recently been concluded. The cause of the delay in completing the ratification procedure for the new treaty seems to be the discussions on the new corporate tie-breaker clause, combined with the fall of the government in June 2010.
In October 2009 the Ministry of Finance appointed a study committee, composed of Dutch tax experts, in order to review the Dutch tax system. The results of its preliminary study have been set out in a report published in April 2010. The report deals with a wide range of issues, including a recommendation to treat equity and debt more equally from a corporate income tax perspective.
The Ministry of Finance recently published the 2010 Budget, which contains the tax bill and tax proposals for 2010. For corporate income taxpayers the most relevant tax proposals relate to the participation exemption regime, the patent box, loss carry-back and dividend witholding tax.
The Ministry of Finance has published a consultation document which outlines possible amendments to the corporate income tax treatment of interest and the participation exemption. It is expected that after the 2009 summer recess, a tax bill will be submitted to Parliament based on the consultation document.
The Ministry of Finance has issued a decree that integrates and updates various existing decrees dealing with the calculation of relief for foreign taxes to prevent double taxation in accordance with tax treaties concluded by the Netherlands and the Tax Arrangement for the Kingdom. The decree also contains a number of policy amendments.
The Ministry of Finance has published a decree containing guidelines for the application of the participation exemption. The decree updates an earlier decree on the application of the participation exemption and contains certain amendments to clarify the application of the new participation exemption provisions which entered into force on January 1 2007.
E-commerce
Dedicated Search Engines Seek Relief
A district court recently decided in AutoTrack v Gaspedaal that Autotrack had made a substantial investment and that Gaspedaal had made a substantial part of AutoTrack's database accessible to the public, resulting in damage to Autotrack.
The Ministry of Economic Affairs has taken receipt of the Notice and Takedown Code of Conduct, which is the result of a year of negotiations between market parties and government agencies. The purpose of the code is to enable the efficient removal of illegal or unlawful content from the Internet.
A graphic designer recently initiated litigation to secure unpaid fees for services provided to a real estate agency. The agency argued that the general terms and conditions had not been received before or at the time of entering into the agreement. The case highlights the importance of the proper online use of general terms and conditions.
A group of Dutch consumers sued the Dutch subsidiary of the retailer OTTO, claiming performance of contracts concluded via OTTO's website and delivery of televisions at prices of €99.99 and €99. The judge concluded that the price mentioned in the advertisement and the confirmations sent by OTTO could not reasonably be construed by consumers as a representation of the price that OTTO intended to charge.
In BREIN Foundation v UPC Nederland and BREIN Foundation v KPN Telecom the BREIN Foundation sued two Dutch internet service providers (ISPs), seeking an injunction requiring the ISPs to disclose the names, addresses and residence details of several customers. In both cases the judge found that the ISPs should disclose the personal details of certain customers to BREIN.
A recent Court of Appeal decision has set an important precedent. If the activities of a website operator with a search engine providing links to MP3 music files are more extensive than those of an internet service provider (ISP), the operator does not have the same level of protection as an ISP. Therefore, the operator may be held liable when providing links to illegal material.
Employment & Labour
An eight-year legal battle between a trade union and Heineken has finally been resolved by the Supreme Court. Employers purchasing assets or taking on outsourced services from a group business whose staff is employed by another group company must be clear about which staff are assigned to the transferring undertaking, and whether they are assigned permanently, in order to avoid infringing the EU Acquired Rights Directive.
In March 2012 several amendments were made to the Collective Redundancy (Notification) Act. Despite the anticipated difficulties of the amendments, one year on, no judgments have been published in respect of employees requesting their termination to be annulled on the basis of non-compliance with the act. Nevertheless, employers are advised to remain alert.
The new Dutch government is seeking consent from the unions to reform key aspects of the employment legislation. Among other changes, the coalition agreement proposes to abolish the existing dual dismissal system and to replace it with a preventive review of a dismissal by the UWV WERKbedrijf, the public employment service. The government also intends to reform the unemployment benefits system.
Energy & Natural Resources
In 2012 the Dutch Supreme Court referred to the European Court of Justice preliminary questions in a dispute between three Dutch energy companies and the Dutch state over the compatibility with the Treaty on the Functioning of the European Union of certain provisions in the Electricity Act 1998 and the Gas Act. Advocate General Niilo Jääskinen has now presented his legal opinion on these questions.
A new bill has recently been introduced that will bring legislation in the Netherlands in line with the EU Regulation on Energy Market Integrity and Transparency (REMIT). REMIT aims to counter insider trading and market manipulation and increase transparency in the wholesale markets for electricity and natural gas. The bill also grants new powers to the authorities and the courts to punish infringement.
A new decree provides further information with respect to the obligation to notify the minister of economic affairs, agriculture and innovation of a change of control over a production installation with a capacity of more than 250 megawatts or a company that operates such production installation, a liquefied natural gas installation or a liquefied natural gas company .
Energy was an important topic throughout the recent parliamentary election campaign, particularly the country's ability to reach EU targets for sustainable energy and carbon dioxide emissions. The coalition negotiations in the coming weeks will decide the energy policy for the next four years, and the parties' pre-election plans give some indication of the course that the Netherlands may follow.
The State Council recently ruled on the legitimacy of 11 Public Works Management Act permits granted in 2009 for the construction, operation and decommissioning of 11 wind parks. The State Council's judgment is a crucial step in the development of the offshore wind parks on the Dutch continental shelf.
There has been much discussion in the Netherlands on the feasibility of introducing a transport tariff payable by producers. A recent letter sent to Parliament indicates that the minister of economic affairs is considering two possibilities: either a producer's transport tariff for all producers (centralised and decentralised), or a transport tariff payable by centralised producers only (exempting local producers).
Environment
Who is responsible for compliance with environmental regulations when a company is declared bankrupt? Who is liable in these circumstances to pay penalties imposed by the competent environmental authority? The Council of State – the Netherlands' highest environmental court – recently got a rare opportunity to consider this issue. The court reaffirmed its existing case law, which comprises just two previous decisions.
After years of alleged environmental mismanagement at Odfjell's Rotterdam tank storage terminal, an inspection by the DCMR Environmental Protection Agency led to the temporary closure of the entire facility. Due to the public outrage following several disasters at similar facilities and a report on Odfjell's safety standards, all environmental management agencies have become more stringent in enforcing regulations.
The possibilities under Dutch law for punitive revocation of environmental permits have increased since the introduction of the Environmental Permitting (General Provisions) Act in October 2010. All permits, exemptions, dispensations and similar covered by the act can now be revoked as a penalty. The grounds for revocation from different laws have been unified to form one provision with a much broader scope
Recent green deals promote sustainability
The minister of economic affairs, agriculture and innovation recently announced the 'green deals' that have been concluded. Through green deals, the Dutch government helps citizens, companies, organisations and other authorities with sustainability initiatives that would otherwise be difficult to implement.
The Council of State has issued five further decisions regarding RWE Power AG's construction of the Netherlands' largest coal-fired (and biomass) power plant. Among other things, the decisions annul a permit based on the Nature Conservation Act 1998 that had been granted to RWE and dismiss a request from Greenpeace and the Society for Nature and Environment for enforcement measures against RWE.
A question mark hangs over completion of the construction of the Netherlands' largest coal-fired (and biomass) power plant following two recent rulings of the Council of State. Three administrative decisions are relevant: two separate permits based on the Nature Conservation Act 1998 and a routing decision based on the Routing Act.
Franchising
Defining 'Independence'
The relevant laws and regulations do not clearly define ‘independent business operators’ or ‘independent agents’ meaning that franchisees are sometimes classed differently for tax and social benefit purposes. However, a working party has recently published recommendations that should help to solve this confusion.
Information Technology
Parties are generally free to avoid or limit potential obligations to reimburse damages resulting from breach of contract or tort by agreeing on an exemption clause. In information and communications technology (ICT) contracts between professional parties, the gravity of the fault is arguably the most important circumstance to consider when testing an exemption clause.
The Den Bosch District Court recently rescinded a system development contract, but refused to order the supplier to give the customer its money back, even though the market value of the system was €0. Customers should be careful when formulating a notice of default for a system developer and giving the developer a last chance to perform.
In a case involving malfunctioning software, the Den Bosch District Court recently set aside a clause in Kluwer's general terms and conditions prohibiting costumers from rescinding the contract. However, the court allowed Kluwer to invoke the limitation of liability clause and awarded damages to the plaintiff up to the maximum amount that Kluwer was required to pay under the clause.
In 2003 the Dutch Computer Club filed suit against Dell Computer BV, claiming that many provisions in Dell's general conditions were unreasonably onerous. Although Dell replaced its conditions, the Hague Court of Appeal agreed that most provisions were unreasonably onerous. The decision also raised questions among the legal community, notably with regards to the status of 'clickwrap' licence agreements.
On October 13 2004 the Den Bosch District Court set aside a software supplier's exclusion of liability for financial losses in a case involving malfunctioning software. However, whether the court's arguments justify setting aside the exclusion of liability is debatable.
Key Objections to FENIT Conditions
ICT~Office is a Dutch trade association that represents the interests of affiliated suppliers in the IT sector. One of its tasks is to draw up general conditions which its members may declare applicable to their contracts with customers. However, the current version is biased in favour of suppliers; from the consumer's perspective, the general conditions should be adapted to better reflect the needs of both parties.
Insolvency & Restructuring
According to the Dutch Supreme Court, an English trustee in bankruptcy can rely on Article 25(1) of the EU Insolvency Regulation to obtain recognition and enforcement of a disclosure order obtained in the United Kingdom pursuant to the UK Insolvency Act 1986 in other EU member states, such as the Netherlands. The decision sets a precedent that will be helpful to trustees in bankruptcy and other office holders.
A bill submitted to Parliament in late 2011 proposed the extension of the Collective Settlement of Mass Claims Act to bankruptcy situations - a move influenced by the bankruptcy of DSB Bank and the possibility of tens of thousands of client claims arising from it. However, it is unclear whether the proposed change in legislation will actually expedite the handling of bankruptcy class actions.
Until recently it was unclear whether a director of a legal entity could incur director's liability under Dutch law when the director was a legal entity incorporated under the law of another country or a natural person acting as the director of such a foreign legal entity. A recent Supreme Court ruling in a bankruptcy case has provided clarity in this area.
A striking feature of Dutch insolvency law is the strong position of secured creditors. Proposed revisions to the Bankruptcy Act would have introduced less favourable treatment for secured creditors and made it easier to avoid fraudulent preferences; but as these revisions have since stalled, the position of secured creditors will remain unaffected – at least for the time being.
The restructuring practice often calls for creative solutions, especially when the stakes are high and the debtor is in serious financial distress. One possibility is for the debtor to transfer its assets to a creditor subject to the condition precedent of the debtor being declared bankrupt. However, under Dutch bankruptcy law, while each case must be reviewed on its own merits, any such action faces a high risk of being challenged.
The Amsterdam District Court has dismissed an application by the administrators of the Dutch branch of Landsbanki to extend the term of the emergency regulations that had been declared applicable to the branch by the court 18 months previously. The court concluded that it was not entitled to extend or redeclare the application of emergency regulations to the Dutch branch because Landsbanki was licensed in Iceland.
Insurance & Reinsurance
The legislature recently adopted a decree containing rules on the sending of electronic messages in the context of an insurance contract. Although the rules concerning electronic messages by insurers to insureds and other addressees remain virtually unchanged, the new decree no longer contains the requirement of confirmation of receipt. It also stipulates that electronic messages from the insured to the insurer are possible.
The Supreme Court has delivered an important judgment which will have repercussions for the insurance sector concerning loss or damage resulting from a dike shift. The case arose when a municipality sought an order for damages against the Higher Water Board in connection with the loss and damage incurred as a result of a dike failure under Book 6, Section 174(1) of the Civil Code.
The Supreme Court recently considered a key buildings insurance case relating to strict liability in a personal injury claim. The court ruled that an injured third party can sue every owner of a defective structure for the full extent of his or her loss. Where the third party is a joint owner, he or she should bear that part of the loss that corresponds to his or her share in the structure and can claim the remainder as damages.
The Dutch courts recently dismissed a claim relating to theft or embezzlement due to gross negligence, confirming that this also covers an instance of negligence which, in terms of blameworthiness, borders on intent. While the insured in this case was aware of the possibility that his jewellery could be stolen, he nonetheless thought that this would not occur and took wholly inadequate measures to prevent it.
Recent Supreme Court case law
The Supreme Court has recently considered several key insurance cases. In one, when dealing with the issue of mutual recourse between insurers, the Supreme Court assumed that the two insurers were jointly and severally liable for the insurance claim, and that this shared claim had to be divided in proportion to the extent to which the circumstances attributable to it contributed to the claim.
Intellectual Property
The Supreme Court recently considered the scope of patent protection for first time in five years. The court gave primacy to Article 69 of the European Patent Convention (EPC), opining on the relationship between Article 69 and the related protocol. Unfortunately, the court appeared to draw on national case law only, rather than considering the practice in other EPC jurisdictions such as Germany and the United Kingdom.
The Dutch Supreme Court recently referred questions to the European Court of Justice for a preliminary ruling on the interpretation of the absolute grounds for refusal of trademark protection for signs which consist exclusively of "the shape which gives substantial value to the goods" under Article 3(1)(e)(iii) of the EU Trademark Directive.
Recent decisions of the Dutch courts have confirmed that unless the European Court of Justice rules otherwise in the Solvay case - expected to be decided in Summer 2012 - patentees and trademark holders can obtain cross-border injunctions against Dutch defendants in The Hague in preliminary proceedings notwithstanding a foreign nullity defence.
Avoiding the Pitfalls of Operating Online
The Internet enables brand owners to communicate with a global audience, but also enables infringement on a large scale. The use or depiction of protected brands and works in a virtual environment can be actionable just as much as in the real world, including the use or trading by gamers of virtual objects or services that use a brand, design or trade dress from the real world.
The Hague District Court has recently ruled that as of the European Patent Convention 2000 coming into force, the so-called ‘Spiro/Flamco doctrine’ for partial nullification or maintenance of a patent which was established in Dutch case law no longer applies to European patents.
Litigation
Overview
Including: Proceedings on Merits; Summary Proceedings; Enquiry Proceedings; Class Actions; Timeframes; Conservatory Attachments; Regulatory Litigation.
The Supreme Court recently ruled that in-house lawyers registered as attorneys with the Dutch bar can, in principle, invoke legal professional privilege in the same way as attorneys who work independently or within a law firm. The ruling is notable because the Supreme Court has disregarded the Akzo decision of the European Court of Justice, which held that in-house lawyers cannot rely on attorney-client privilege.
The District Court of Midden-Nederland recently issued a ruling against a Dutch bank in a collective action that was initiated by a foundation acting in the interests of private investors which had invested in Madoff funds via the bank. The case involved a number of interesting points with regard to three procedural elements of such proceedings.
Shareholder dispute settlement rules amended
The Act on Simplification and Flexibility of the Law on Limited Liability Companies sets out significant amendments with regard to the statutory dispute settlement rules applicable to shareholders. The amendments will considerably shorten the duration of such proceedings, improve the position of the claiming shareholder and give parties the option to agree alternative solutions.
Dutch law has no full discovery procedure comparable to that in the United States. However, if it can show a lawful interest, a party can petition for the disclosure of certain documents held by another party. This practice is becoming increasingly popular in Dutch civil litigation, and a recent Supreme Court judgment invites the conclusion that such a petition can also be made in support of foreign proceedings.
The drawbacks of clawbacks
The Supreme Court recently handed down an important ruling on the possibility to reclaim money from investors involved in a Ponzi scheme. The Ponzi scheme manager was declared bankrupt, convicted of fraud and jailed. The bankruptcy trustee sought to claw back profits on behalf of the defrauded investors. The claim was denied by the district court and the Court of Appeal. The Supreme Court upheld these rulings.
Earlier this year the minister of justice and security sent a draft bill on the amendment of enquiry proceedings to the lower house of Parliament. The reason for the draft bill is to improve enquiry proceedings in certain respects. The draft bill includes amendments regarding access to and procedural aspects of enquiry proceedings.
Media & Entertainment
The Appeal Court of Arnhem recently sentenced an individual to 12 months' imprisonment, nine months of which were to be unconditional, for tax fraud and the illegal delivery of background music to cafés and restaurants. The judgment is interesting because in the Netherlands the enforcement of IP rights is primarily the responsibility of the rights holders themselves.
By tolerating illegal downloads, the Netherlands was the odd one out in Europe. It seemed that the District Court of The Hague's June 2008 ruling in ACI Adam BV cs v Stichting De Thuiskopie cs would bring about change. In contrast to the official view of the minister of justice, the court clearly stated that it qualified downloading from illegal online sources for private use as illegal.
A recent judgment of the Haarlem District Court has received widespread attention in the world of music collecting societies. In a surprising move, the court granted an injunction to the Performing Right Society with the effect that the defendant, the Dutch composers society Buma, may not grant multi-territory licences to music users for internet, cable and satellite use.
The BREIN Foundation, an anti-piracy organization, sought an injunction against the hosting provider of a file-sharing website which distributed films, music, computer games, software and e-books without the rights holders’ permission. The hosting provider refused to block the website or disclose details of the website's owner. The Amsterdam Court of Appeal held that withholding such details was an unlawful act.
A recent judgment of the District Court of The Hague has reopened the discussion in the Netherlands about the infringing nature of downloading illegal content. The court ruled that the downloading of illegal content is itself an act of infringement because it is contrary to the reasonable interests and normal exploitation of the rights owners.
Projects & Procurement
New Infrastructure Legislation
The recently published Law on the Acceleration of Decision Making for Road Infrastructure Projects aims to simplify and accelerate the decision-making process in planned road construction projects. Following the entry into force of the law, further legislation has been drafted in order to expedite other infrastructure and construction projects.
Shipping & Transport
In the bunker industry, it is common practice to issue invoices to the "master and/or owners and/or operators and/or managers and/or charterers c/o" (or similar wording), followed by the name of the person or company actually ordering the bunkers. So does this mean that, if unpaid, a claim for the bunkers can be made against the master, the owners or the vessel?
The Netherlands Appeal Court has overturned a Rotterdam Court ruling in a dispute involving entitlement to limit liability under the Strasbourg Convention on the Limitation of Liability in Inland Navigation. The dispute arose during the transportation of containers on board a push barge, which was being pushed by another vessel. Under Dutch law, a push barge and a pushed barge are considered to be two separate vessels.
The issue of what constitutes delivery under the terms of the Convention on the Contract for the International Carriage of Goods by Road, and establishing when the period of the carrier's liability ends, continues to occupy the time of the Dutch courts. The Middleburg District Court recently ruled on this issue in a dispute involving a shipment of mussels.
If a seller cannot prove that goods were delivered to its foreign buyer, it will have to pay the value added tax on the goods. For this reason, many sellers include a clause in Convention on the Contract for the International Carriage of Goods by Road (CMR) contracts stating that the carrier must present a proof of delivery. A recent Supreme Court decision illustrates how a CMR consignment note can provide proof of delivery of cargo.
The government has agreed to amend national law to facilitate the implementation of international and European legislation governing the carriage of passengers by sea. The amendments will see the Athens Convention and its protocol and EU Regulation 392/2009 enter into force - although in relation to the protocol, a reservation has been made in respect of carriers' liability.
The Supreme Court has ruled that claimants could not rely on the Convention on the Contract for the International Carriage of Goods by Road (CMR) to prove gross negligence on the part of the defendants in a dispute involving theft of a high-value cargo from a parked trailer. The judgment reinforces the belief that it is virtually impossible in the Dutch courts to break the CMR limitation on the basis of gross negligence.
Telecommunications
Auction of 2.6 GHz Frequencies Postponed
The auction of 2.6 gigahertz frequencies will take place in the first quarter of 2010. This is the fourth time that the date of the auction, which was initially set for 2007, has been postponed. The latest postponement is due to the addition of a sixth licence to the auction.
The Independent Post and Telecommunications Authority has published policy rules governing tariffs for access to fibre networks. The policy rules seek to strike a balance between promoting competition and encouraging innovation. They encourage efficient investment in fibre networks so as to allow competitors access to these networks without having to pay an excessive price.
OPTA Proposes Symmetric Termination Rates
The Dutch Telecommunications Authority (OPTA) published a draft market decision for wholesale fixed termination access (FTA) on August 15 2008. In the draft decision OPTA sets out the remedies for the regulatory period starting January 1 2009. In comparison to the current regulatory framework, the most significant change is the imposition of symmetric maximum termination rates.
OPTA Publishes Draft Market Decisions
The Dutch Telecommunications Authority (OPTA) has published draft market decisions covering the markets for fixed telephony, broadband and leased lines. In the draft decisions OPTA sets out the remedies for the regulatory period ahead. Notably, the decisions dispense with incumbent KPN's current retail obligations on the fixed telephony market.
Regulator Enforces UMTS Rollout Obligations
The Radiocommunications Agency Netherlands has imposed an order for incremental penalty payments after finding that mobile telecommunications operator Telfort had violated the rollout obligations of its Universal Mobile Telecommunications System licence. Telfort faces a €5 million fine for every three-month period of non-compliance.
White Collar Crime
Permanent supervision of legal entities
Amendments to Book 2 of the Civil Code and the Companies (Documentation) Act recently came into effect. As a result, the system of preventive supervision and the related requirement for a declaration of no objection have been abolished and replaced by a system of permanent supervision of legal entities. The new system aims to prevent and combat the misuse of legal entities and their businesses.
The third EU Anti-money Laundering Directive has by now been implemented by EU member states. However, the Dutch legislature has implemented several parts of the directive in a manner that is too extensive, changing the character of the regulation from prevention to enforcement.
