The Council of Ministers recently approved preliminary draft legislation amending the Passenger Data Processing Act. Among other things, the proposed changes concern the protection of individuals with regard to the processing of personal data, data exchanges and the cross-checking of passenger data following the identification of suspicious passengers. The changes aim to bring the act into line with the EU General Data Protection Regulation.
In the aftermath of the numerous terrorist attacks in the European Union, EU member states agreed that additional measures were needed regarding the use of passenger name record data. Belgium has implemented a legal framework for passenger name record data based on EU legislation. It is hoped that the framework will enable all actors to achieve the main aim of fighting terrorist threats and serious crime.
As part of the Federal Public Service for Mobility and Transport, the Belgian Civil Aviation Authority is responsible for developing and maintaining the Belgian Aviation Safety Programme (BASP) in accordance with EU and international requirements on behalf of the state. The cornerstones of the aviation safety policy set out in the BASP are safety management, continuous improvement and a risk-based approach.
A legal vacuum has been filled with a new royal decree on the use of remote controlled aircraft in Belgian airspace. All market players ‒ from manufacturers to service providers ‒ can now develop their activities within the new legal framework, under which safety is paramount. The new regulatory regime provides the required legal certainty to commercialise and operate drones in Belgium, which has been welcomed by the sector.
The Chicago Convention provides that all aircraft must be registered with a national aviation authority and must carry evidence of this registration in the form of a certificate of registration at all times when in operation. The Belgian Aircraft Registry is an operator registry, meaning that aircraft are registered under the name of the operator only. In order to register an aircraft, an operator must submit documents evidencing its title, ownership or lease over the aircraft.
It is often difficult to clearly demonstrate an abuse of a dominant position by way of excessive pricing. Nevertheless, the Brussels Commercial Court recently seemed to have little doubt that the Belgian Society of Authors, Composers and Publishers' (SABAM's) increased tariffs for concerts and music festivals constituted an abuse of its dominant position. However, what is more interesting is that the court also considered SABAM's existing practice to constitute an abuse of its dominant position.
The Competition College recently refused to initiate a Phase II investigation and approved Volvo Group Belgium's acquisition of various companies belonging to the Kant group, despite concerns that the transaction was likely to result in competition issues. This case demonstrates that a hearing before the Competition College is not just a formality and that parties can successfully contest a prosecutor's findings.
The act transposing the EU Damages Directive into Belgian law was recently officially published. Among other things, the implementation of the directive has established a rebuttable presumption that cartels cause harm, which did not previously exist under Belgian law. In addition, the binding effect of the Belgian Competition Authority's decisions before the Belgian courts now has a legal basis.
In a recent settlement decision, the Belgian Competition Authority imposed total fines of €1.8 million on five undertakings involved in a bid-rigging cartel. The decision relates to a public tender launched in 2008 by Infrabel, the Belgian railway infrastructure operator. The tender was for the delivery and onsite installation of electrical circuit equipment and related technical assistance.
A recent Competition Authority decision is another example of its fight against vertical restraints. The Competition Authority fined yeast supplier Algist Bruggeman and its parent companies €5.5 million for resale price maintenance, exclusive customer allocation, long-term non-compete obligations and abusive exclusionary practices in the market for compressed fresh yeast and stabilised liquid fresh yeast sold to artisan and semi-artisan bakers.
A legislative package aimed at fighting falsified medicines will enter into force in the European Union in early 2019. This EU legal framework was transposed into Belgian law through the Medicines Act and the Royal Decree concerning Medicines for Human and Veterinary Use. As a result, pharmaceutical companies will be required to affix a so-called 'anti-tampering device' on all prescription medicinal products to allow verification of whether the packaging has been tampered with.
In an insolvency situation, the fate of ongoing contracts is something to be discussed. Such contracts are often closely linked to the essence of a company's business. For example, for (commercial) leases, a lessor's bankruptcy or a tenant's judicial reorganisation will probably result in discussions about the agreement, its (forced) execution and rental payments. If a company's activities are based on patent or software licences, the effect on these agreements will also be of crucial importance.
The European Court of Justice appears likely to rule that the Belgian reorganisation framework infringes the EU Transfer of Undertakings Directive with regard to the transfer of personnel. If the option to transfer only a portion of staff is no longer available in Belgian reorganisation proceedings, companies will have no choice but to formally file for bankruptcy, which is exactly the issue that the legislature and the labour unions had hoped to avoid when introducing this mechanism into Belgian law.
The former Bankruptcy Statute of 1997 included a principle that a natural person could be discharged of their remaining and outstanding debts – a so-called 'waiver' – at the moment of a bankruptcy's closure. The discharge's beneficial effects were extended to the bankrupt person's spouse. However, for bankruptcies that have happened since 1 May 2018, and so fall under the new legal framework, this situation has changed.
The legislature recently took steps to improve the follow-up monitoring of companies in financial difficulty and strengthen the fight against inactive companies. To determine whether companies are in financial difficulty, the courts gather information from various (digital) sources. However, the focus remains on preventive mechanisms – namely, identifying companies in financial difficulty and following up with court action.
The Belgian insolvency law's scope was recently broadened. As of 1 May 2018, all entities that are involved in commercial or entrepreneurial activities can be declared bankrupt (or enter into court-supervised reorganisation proceedings). Discussion has started about whether company administrators can also be seen as being 'involved in an entrepreneurial activity' and thus declared bankrupt.
Preliminary injunctions are rarely granted on an ex parte basis in Belgium and adversarial debates are considered a cornerstone of legal proceedings which can be deviated from only in cases of absolute necessity. However, ex parte interim measures have been granted in at least four patent disputes in Belgium in recent years, which helps to shed light on the circumstances under which patentees can consider them to be a measure of last resort to stop a threat of infringement.
On 30 July 2018 the Belgian legislature transposed the EU Trade Secrets Directive into domestic law via the Trade Secret Law. The Trade Secret Law is welcomed, as no general regulatory framework regarding trade secrets previously existed in Belgium. It remains to be seen how the law will be used and applied in practice, but it is an essential means in effectively appropriating, protecting and exploiting innovation by providing trade secret holders with the tools to protect valid trade secrets.
In a high-profile trademark infringement case involving Moët Hennessey Champagne Services and a Belgian painter, the courts were asked to strike a balance between the right to property, including intellectual property, and artistic freedom of expression. The decision is expected to set an important precedent on how to strike a fair balance between freedom of speech and the protection of trademarks when these two concepts conflict.
Merck Sharp & Dohme (MSD) recently sued PI Pharma before the Brussels Commercial Court for the parallel import and repackaging of one of MSD's medicinal products. MSD based its claim on the alleged violation of the first, third and fourth Bristol-Myers Squibb conditions. Although this is not the first time that the Brussels Commercial Court has been involved in a dispute over the parallel importation of medicinal products, the judgment further refines the scope of certain Bristol-Myers Squibb conditions.
In a recent judgment, the Brussels Court of Appeal ordered two parallel traders to pay provisional compensation of €3 million to the Mitsubishi Corporation for illegally importing hundreds of Mitsubishi forklift trucks which had been on the Asian market into the European Economic Area via parallel trade routes. The court held that the parallel traders had failed to provide conclusive evidence that Mitsubishi, the proprietor of the Benelux and EU trademarks, had consented to the parallel trade.