Netherlands, AKD NV updates
Employment & Benefits
Contributed by AKD NVIs this the end of traditional employment contracts?
- Netherlands
- 10 October 2018
According to the European Commission, the growth of flexible contracts in the Dutch labour market, as well as the inequality between flexible contracts and employment contracts for indefinite periods, is a problem. As such, one of the commission's recommendations for the Dutch government is to tackle the barriers to entering into traditional contracts or employment contracts for indefinite periods and facilitate the transition from definite contracts to employment contracts for indefinite periods.
Healthcare & Life Sciences
Contributed by AKD NVFor-profit hospital care: don't hold your breath
- Netherlands
- 10 October 2018
For-profit hospital care is a toxic political subject. Those in favour will achieve no political gain by fighting for it, while those opposed can easily cash in on the sentiment or conviction that healthcare is best provided if financial motives are neutralised. Nonetheless, the current administration is carefully reviving the discussion about for-profit healthcare. However, given the current political landscape, prolonging the regulatory twilight zone seems the most likely outcome.
New government measures aim to keep medicines affordable
- Netherlands
- 01 August 2018
The minister for medical care recently announced a set of measures to control the rising costs of pharmaceutical drugs, which – without action – are forecast to rise by at least 10% annually. The measures aim to guarantee patient accessibility to medicines and the affordability of care in the long term. The minister estimates that the measures will save the country €467 million per year by 2022.
Electronic exchange of patient data: consent in view of Supreme Court decision, GDPR and future regulations
- Netherlands
- 20 June 2018
In 2011 the Senate rejected the legislative proposal to establish a mandatory electronic patient record. Subsequently, various national professional associations recommenced the initiative in a different (optional) form, using the already developed nationwide infrastructure for the electronic exchange of personal medical data. The Association of General Practitioners petitioned the courts to prohibit the new initiative. However, the Supreme Court recently allowed it on the basis of present legislation.
Inducement ban regarding medical devices
- Netherlands
- 28 March 2018
The Medical Devices Act was recently amended to include a provision that bans improper inducements aimed at stimulating the prescription or supply of medical devices on the basis of undesirable financial incentives. The aim of the amendment is to give patients more trust that healthcare professionals make decisions concerning certain devices based on legitimate grounds relating to patient care.
Intellectual Property
Contributed by AKD NVHeks'nkaas: advocate general's opinion on copyrighting tastes unpalatable for Levola
- Netherlands
- 24 September 2018
In May 2017 the Arnhem-Leeuwarden Appellate Court referred questions regarding which kinds of object can be classified as copyrightable works to the European Court of Justice (ECJ). The case addresses the interesting question of whether certain tastes can be protected under copyright law (the specific taste for which protection was sought was Levola's popular cheese product Heks'nkaas). Advocate General Wathelet recently advised the ECJ not to allow tastes to be granted copyright protection.
Can directors be held liable for IP infringements?
- Netherlands
- 06 August 2018
The Hague District Court recently had to assess whether a natural person could be held accountable for a company's trademark and copyright infringement. Although the court could not establish whether the person was an official director of the infringing company, this did not stand in the way of his liability. In accordance with Supreme Court case law, liability can arise where a party plays a substantial part in the policy of a company that acts unlawfully and behaves as if they are a director of the company.
The considerable value of Max Verstappen's likeness
- Netherlands
- 18 June 2018
The Amsterdam District Court recently allowed a substantial damages claim following Dutch grocery delivery start-up Picnic's unlawful use of a lookalike of the famous Formula 1 driver Max Verstappen. This case clarifies that a person's right to control the use of their image cannot be violated easily. Although the parody defence is useful, the chance of success is limited if the parody is made in order to achieve commercial gain.
Benelux Convention on Intellectual Property amendments: what do they mean for Dutch trademark holders?
- Netherlands
- 16 April 2018
On June 1 2018 two protocols that amend the Benelux Convention on Intellectual Property will take effect. The amendments will make it possible for Dutch parties to initiate actions before the Benelux Office for Intellectual Property with regard to the opposition, revocation and cancellation of a Benelux trademark. They will therefore have a significant effect on Dutch revocation and cancellation procedures.
Supreme Court rules on use and functions of trademark
- Netherlands
- 12 February 2018
The Supreme Court has upheld an opposition against the refilling of a gas tank bearing the trademark PRIMAGAZ with gas from a third party. The Supreme Court held that where a party uses another's branded packaging for its own goods, it is the same as using the other party's trademark. Finding that the act of filling the tank constituted use of the mark in the course of trade, the court held that the third party had used the PRIMAGAZ mark for commercial gain.
Litigation
Contributed by AKD NVHeks'nkaas: advocate general's opinion on copyrighting tastes unpalatable for Levola
- Netherlands
- 25 September 2018
In May 2017 the Arnhem-Leeuwarden Appellate Court referred questions regarding which kinds of object can be classified as copyrightable works to the European Court of Justice (ECJ). The case addresses the interesting question of whether certain tastes can be protected under copyright law (the specific taste for which protection was sought was Levola's popular cheese product Heks'nkaas). Advocate General Wathelet recently advised the ECJ not to allow tastes to be granted copyright protection.
Supreme Court confirms right to limit liability
- Netherlands
- 21 August 2018
The Supreme Court has reconfirmed the right to limit liability under Dutch law, even in personal injury cases. It held that limitation as such is not a violation of the human right to protection of property under the First Protocol to the European Convention on Human Rights, and that it is nationally and internationally considered necessary that the liability of the carrier is limited or may be limited in the event of a passenger's death or personal injury.
Supreme Court further clarifies scope of 'main proceedings' for pre-judgment attachments in cross-border disputes
- Netherlands
- 14 August 2018
The Dutch courts have jurisdiction to grant permission for pre-judgment attachment on assets that are located in the Netherlands, even if the debtor is foreign and the Dutch courts have no jurisdiction in the main proceedings. A recent Supreme Court decision has provided further guidance on which (foreign) court actions can be considered 'main proceedings' within the meaning of the Code of Civil Procedure and at what time the creditor must be deemed to have instituted these main proceedings.
Can directors be held liable for IP infringements?
- Netherlands
- 07 August 2018
The Hague District Court recently had to assess whether a natural person could be held accountable for a company's trademark and copyright infringement. Although the court could not establish whether the person was an official director of the infringing company, this did not stand in the way of his liability. In accordance with Supreme Court case law, liability can arise where a party plays a substantial part in the policy of a company that acts unlawfully and behaves as if they are a director of the company.
Agenda setting: Supreme Court clarifies shareholders' rights for general meetings
- Netherlands
- 12 June 2018
The Supreme Court recently clarified the scope of shareholders' rights under the Civil Code with regard to (non-binding) voting items on general meeting agendas. Under Dutch corporate law, shareholders have the right to request the board of directors of a public or private limited company to put an item on the agenda of a shareholders' meeting if the threshold and timing requirements are met. Such requests may be refused by the board of directors only in exceptional circumstances.
Shipping & Transport
Contributed by AKD NVSupreme Court confirms right to limit liability
- Netherlands
- 08 August 2018
The Supreme Court has reconfirmed the right to limit liability under Dutch law, even in personal injury cases. It held that limitation as such is not a violation of the human right to protection of property under the First Protocol to the European Convention on Human Rights, and that it is nationally and internationally considered necessary that the liability of the carrier is limited or may be limited in the event of a passenger's death or personal injury.
Netherlands prepares to adopt Rotterdam Rules
- Netherlands
- 01 August 2018
With two bills recently submitted to Parliament, the Netherlands is preparing to adopt the United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea (the Rotterdam Rules) into Dutch law. This legislative effort is a clear sign of support in respect of the rules and will be appreciated by those convinced that the rules are the way forward for the carriage of goods in this age of e-commerce.
Dutch court rules that tank storage provider cannot invoke exoneration clause contained in VOTOB conditions
- Netherlands
- 16 May 2018
The Rotterdam District Court recently ruled that a tank storage provider could not invoke the exoneration clause of the General Conditions for Tank Storage in the Netherlands (the VOTOB conditions), which are frequently used by Dutch tank terminals and storage companies. The decision is relevant, as it appears to contravene the rather strict approach adopted in Dutch case law in relation to successfully setting aside a VOTOB exoneration clause.
Dutch court underlines arrestors' rights
- Netherlands
- 09 May 2018
The Dutch courts recently confirmed that a party which is arresting a vessel has no obligation to pay berth fees or any other associated costs during the period that the vessel remains under arrest. This decision is notable, as although it is in line with the traditional understanding, it is one of few decisions to have been issued on this matter in the Netherlands. It will also likely be regarded with interest in other jurisdictions, where different rules concerning the obligations of arresting parties apply.
Supreme Court rules on determination of LLMC claims
- Netherlands
- 11 April 2018
The Supreme Court recently ruled on how to determine which claims under the Convention on Limitation of Liability for Maritime Claims 1976 are paid out of the property fund and which are paid out of the wreck fund if a party has chosen to constitute both funds. The judgment is particularly relevant because the Netherlands recently issued a legislative proposal which aims to abolish the wreck fund and introduced unlimited liability for wreck and cargo removal claims.
