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E-commerce

Belgium

The existing system of domain names is proving insufficient for dealing with the massive increase of internet usage. Therefore new top level domains are being established, globally; the European Union will have its own country code; and Benelux domain names are being opened up.

Luxembourg

The existing system of domain names is proving insufficient for dealing with the massive increase of internet usage. Therefore new top level domains are being established, globally; the European Union will have its own country code; and Benelux domain names are being opened up.

Netherlands

On December 15 2003 legislation implementing the EU VAT Invoicing Directive into Dutch law entered into effect. Under the new rules, the authenticity of the origin and the integrity of the content of electronic invoices may be guaranteed by means of either an electronic signature or electronic data interchange in combination with a periodic hard-copy report.

Dutch courts have held that offering games of chance on the Internet from outside the Netherlands, but on a site accessible in the Netherlands, without a licence constitutes an unlawful act with regard to parties licensed by the Dutch government to conduct such activities. However, Dutch policy may be incompatible with the EU principle of free movement of services.

Including: Pre-contractual Information; Forming Contracts; General Terms and Conditions; Consumer Law; Applicable Law; Jurisdiction.

A new regulation allows foreign businesses without a branch office in the Netherlands, and all private individuals (regardless of their place of residence), to register '.nl' top-level domain names in their own name. A system of alternative dispute resolution has also been introduced, which will be administered by the World Intellectual Property Organization.

As a company operates its online business through its website, both the appearance and accessibility of the site are important. This update examines how a company should set about developing its website and attracting custom to it.

There is a close relationship between evidence and document storage: in order to prove a case, the necessary documentation must be available. While the Netherlands Civil Code permits the electronic storage of data, this is not without risk as the evidential value of documentation will not necessarily remain the same.

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Environment

Netherlands

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

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.

Fires can prove enlightening when it comes to the development of case law with regard to environmental liabilities. A recent appeal court ruling on a case involving a fire represents a stark departure from Supreme Court precedent. The question arose as to whether the municipality of Rotterdam had discretionary power in its role of supervising and enforcing environmental permits and the Fire Services Act.

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Information Technology

Netherlands

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.

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.

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Insolvency & Restructuring

Netherlands

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.

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Intellectual Property

Netherlands

The Hague District Court has found that goods which were in transit in the Netherlands infringed Philips' patented recordable disc technology. Under the EU Anti-piracy Regulation, the goods were considered as having been manufactured in the Netherlands, which extended patent protection considerably.

The Convention on Intellectual Property integrates the Benelux Trademark Act and the Benelux Design Act into one convention. The aim is to set out rules governing trademark and design rights in a systematic way. The convention also introduces a new organization to replace the Benelux Trademark Office and Benelux Designs Office.

In an internationally groundbreaking decision, a Dutch court has ruled that perfume can have an original character bearing the personal imprint of its creator, thus entitling it to copyright protection. However, the court stressed that the protection extends only to the scent-generating substance that is bottled and sold on the market, and not to the smell.

Recently, the Dutch Supreme Court sought clarification as to whether jurisdiction can be claimed by a patent proprietor so that the litigation can be concentrated in a single country and, if so, whether it matters that the defendants belong to the same company, behave in a concerted way or place identical products on different national markets.

The European Court of Justice has ruled that a Dutch trademark agency can register sounds as trademarks, provided that they can be visually represented on the musical stave. The decision excludes some other representations, such as written descriptions and onomatopoeia. However, the status of forms such as sonograms and recordings was not discussed.

The European Court of Justice has ruled in a case involving a Dutch telecommunications company that a colour can be registered as a trademark only under restricted conditions. The court stated that the public is capable of distinguishing only a limited number of colours and that a colour on its own will not normally fulfil trademark distinctiveness requirements.

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White Collar Crime

Netherlands

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.