Van Doorne

Van Doorne Newsletter - March 2005

This Newsletter is also available in Dutch

Van Doorne News

G.N.H. Kemperink to join Van Doorne as a partner on 1 March 2005

Since 1984, Guus Kemperink has worked as a lawyer in Amsterdam. He comes to us from Lovells (previously Ekelmans Den Hollander), where he had been a partner since 1992. In his career, he developed into one of the leading Dutch lawyers in corporate law.

Kickoff with Johan Cruijff

Van Doorne has been a partner of the Johan Cruyff Foundation since November 2002.
This year will be our second shot at the soccer tournament for the Cruyff Foundation Cup. This tournament, at which existing relations of the foundation introduce new supporters from the business community, will be held for the second time in May.

Employment

Competition clauses to generate payments?

In October 2004, the Dutch Lower House adopted the Bill amending the rules pertaining to competition clauses. The Bill is now pending for approval by the Dutch Upper House. The purpose of it is to have employers and employees negotiate such clauses only in cases where employers have an actual interest.

Employment Relationship Statement: More certainty

On 1 January 2005 the Act regarding the Extension of the Legal Effects of Employment Relationship Statement Act took effect. By virtue of the new Act, commissioning parties enjoy statutory indemnification vis-à-vis commissionees who possess an Employment Relationship Statement profit from enterprise (VAR-wuo) or an Employment Relationship director-major shareholder (VAR-dga).

Banking and Finance

Proposal to amend Dutch rules on insider trading

On 13 October 2004 a bill has been introduced with parliament for the amendment of the Dutch rules on insider trading. The bill seeks to implement the Market Abuse Directive (2003/6/EC). The bill will increase the burden of proof on the public prosecution service. The bill further limits the duty to notify transactions, introduces a prohibition of market manipulation and a duty on securities institutions to report possible breaches of the insider trading regulations. The Netherlands Authority for the Financial Markets (AFM) expects the bill to come into effect in the summer of 2005.

Dutch Central Bank eases "PMP requirement" for Dutch Borrowers

On 2 January 2005 a restatement of the policy rule of the Dutch Central Bank under the Dutch Banking Act became effective. Under the new policy rule Dutch borrowers may rely on an explicit confirmation of the lenders that they qualify as "professional market parties" (PMP's), unless it knows or should reasonably know that the confirmation is incorrect.

Dutch Supreme Court rules on financial assistance

For the first time the Dutch Supreme Court rendered a judgment on the scope of the Dutch financial assistance prohibition. It has upheld a structure that is regularly used in The Netherlands whereby a Dutch BV borrows monies against the granting of security and on-lends those monies to the acquirer of shares in its capital.

Intellectual property and IT

E-commerce is in again

Despite earlier setbacks, e-commerce is definitely back. Some sales figures for e-commerce forecast during the internet boom will even be exceeded in 2005. The internet as distribution channel has again become big business. As it turns out, however, many providers are unfamiliar with the statutory e-commerce rules. A regulatory authority is in the offing. Reason enough to have your website screened from a legal perspective.

Insolvency

Doubts about usefulness of amended Bankruptcy Act

The legislation on bankruptcy and suspension of payments changed on 15 January 2005. However, the original objective of the amendment – promoting the effectiveness of suspension of payments and bankruptcy – has gone astray. There is now widespread doubt as to the usefulness of this amendment.

Corporate

Initial consultation on relaxation of private limited liability

On 10 February 2005, the Ministry of Economic Affairs, announced consultations on a working draft regarding the simplification and relaxation of the rules on private limited liability companies. The official draft consists of a draft bill and associated explanatory memorandum.

Rules for statutory two-tier entities remain unchanged for now

On 3 February 2005, the Lower House of the Dutch Parliament debated the Modernization of Corporate Law Policy Document. In that Policy document, which was published on 8 September 2004, the Dutch Minister of Justice, Donner, advocated far-reaching changes in the rules for statutory two-tier entities. In his view, the current supervisory role exercised by the non-executive directors is not seen as a modern and internationally accepted business model. He singles out the restricted influence of the shareholders with regard to the composition of the non-executive board and the appointment/removal from office of directors, which should be widened.

Van Doorne listed in top 10 deal makers

Van Doorne made the OverFusies top 10. Van Doorne came seventh in terms of total number of merger/takeover deals and deals per lawyer. The total value of the deals in which we were involved in 2004 represents around 2.3 billion euros.

Property

New definition of the housing corporations’ area of responsibilities

In 2004, the Dutch Minister of Housing, Planning and the Environment announced an amendment to the Social Housing Management Decree. As a consequence of this amendment, which should become effective in the first half of 2005, housing corporations will have to distinguish in future between activities for the corporation’s account – the core activities – and those that should be hived off to a subsidiary (or commercial activities).

Litigation and Insurance

Victims of broken dike take legal action

In the night of 25 August 2003, a dike in the Dutch village of Wilnis gave way. The water in the Ringvaart behind the dike flooded the streets of Wilnis and found its way into many dwellings. Houseboats in the Ringvaart were grounded. There was considerable damage. The local Water Board (Hoogheemraadschap), however, refused to accept liability. Therefore, Van Doorne is preparing a lawsuit for 26 companies/individuals, which suffered as a result.

For more information, please contact
nieuwsbrief@van-doorne.com

Van Doorne N.V., Jachthavenweg 121, 1081 KM Amsterdam
Postbus 75265, 1070 AG Amsterdam, Telefoon 020 6789 123, Fax 020 6789 589

Although this newsletter was prepared with the utmost care, it is only intended to highlight legal issues in general and does not provide for specific legal advice applicable to a specific situation. Van Doorne does not accept liability for any actions (or lack thereof) taken as a result of relying on or in any way using information contained in this newsletter and in no event shall Van Doorne be liable for any damages resulting from reliance on or use of this information. Readers should always take specific advice from a qualified professional if and when dealing with specific situations.