Netherlands updates

Healthcare & Life Sciences

Small boost in battle against high prices for medicinal products
AKD NV
  • Netherlands
  • 16 January 2019

The Health and Youth Care Inspectorate recently published its report on its investigation into the quality and permissibility of the Amsterdam University Medical Centre's (Amsterdam UMC's) pharmaceutical compounding of its cerebrotendineous xanthomatosis drug, which contains the active substance chenodeoxycholic acid (CDCA). According to the inspectorate, the small-scale preparation of CDCA on prescription by Amsterdam UMC is legally allowed based on an exception under European and Dutch law.

For-profit hospital care: don't hold your breath
AKD NV
  • 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
AKD NV
  • 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
AKD
  • 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
AKD
  • 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.


Insolvency & Restructuring

Amsterdam Court of Appeals denies recognition of Yukos bankruptcy based on public order exemption
Freshfields Bruckhaus Deringer LLP
  • Netherlands
  • 15 September 2017

The Amsterdam Court of Appeals recently ruled that the 2006 Russian liquidation order regarding OAO Yukos Oil Company is contrary to Dutch public order and therefore null and void. The court's reasoning was largely based on a 2014 European Court of Human Rights judgment following a complaint lodged against Russia by the former Yukos shareholders with regard to Yukos's liquidation.


Intellectual Property

Contributed by AKD NV
Unauthorised filing of trademarks by agent or representative
  • Netherlands
  • 24 June 2019

The District Court of Gelderland recently rendered a judgment on the subject of unauthorised agent or representative filings. It deemed that a third party was so closely involved in the distribution agreement between two other parties that it could be ordered to transfer the trademarks that it had registered unauthorised, despite the third party arguing that it could not be regarded as an agent, representative or distributor of the two other parties.

Not all alterations of architectural works result in infringements of moral rights
  • Netherlands
  • 29 April 2019

The Supreme Court recently issued a long-awaited decision on an architect's moral rights of paternity and integrity. In recent years, several Dutch judgments have considered whether architects can oppose changes to their original building designs. The Supreme Court's decision further clarifies that it is difficult for architects to do so where the changes are necessary to alter a building's function.

Hema crocodile takes bite out of Lacoste trademark
  • Netherlands
  • 18 February 2019

The Hague District Court recently issued a preliminary ruling in which it held that Lacoste could not invoke its famous crocodile trademark in order to prohibit the use of a crocodile motif on children's underwear. This preliminary judgment is one of only a few examples in which the use of a sign has been considered purely decorative (and thus could not be perceived as trademark use). Typically, the courts are restrictive in accepting such a defence.

No copyright protection for taste of food
  • Netherlands
  • 24 December 2018

The European Court of Justice (ECJ) recently rendered its decision in the dispute between Dutch parties Levola and Smilde concerning Levola's cream cheese product. The Arnhem-Leeuwarden Court of Appeal had referred a number of prejudicial questions to the ECJ – in particular, whether a taste can be eligible for copyright protection. Among other things, Levola argued that disallowing copyright protection for the taste of foodstuffs would be contrary to Dutch Supreme Court case law.

adidas knocked out in trademark infringement case: McGregor IP maintains right to use Conor McGregor's name
  • Netherlands
  • 26 November 2018

The Hague District Court recently rendered an interim judgment in a matter between Dutch limited liability company McGregor IP BV and adidas. The key question in this case was whether adidas – in using the name of a sports hero on items such as hoodies, shorts and jerseys – had infringed McGregor IP's trademark rights. Notably, the outcome of this matter could have been different had the design and display of the signs at issue been different.


International Trade

Failure to observe customs rules could have costly implications
AKD
  • Netherlands
  • 12 October 2018

The Dutch customs authorities have wide-ranging inspection powers and, once irregularities have been uncovered, parties with cargo interests may face severe delays and ensuing costs which could have been avoided had they had a better understanding of the relevant rules and regulations. Parties which violate the rules will be subject to legal enforcement proceedings and possible prosecution under criminal law in the event of the Public Prosecutor's Office's involvement.


Litigation

Contributed by AKD The Netherlands
NCC and NCCA as alternative forums
  • Netherlands
  • 02 July 2019

The international trade chamber of the Amsterdam District Court – known as the Netherlands Commercial Court (NCC) and the Netherlands Commercial Court of Appeal (NCCA) – allows parties to resolve international civil or commercial disputes and litigate in the English language, both in first instance (NCC) and appeal (NCCA). Depending on the circumstances of the case, the NCC and the NCCA may be attractive alternative forums to regular district courts, arbitration institutes and international commercial courts.

Unauthorised filing of trademarks by agent or representative
  • Netherlands
  • 25 June 2019

The District Court of Gelderland recently rendered a judgment on the subject of unauthorised agent or representative filings. It deemed that a third party was so closely involved in the distribution agreement between two other parties that it could be ordered to transfer the trademarks that it had registered unauthorised, despite the third party arguing that it could not be regarded as an agent, representative or distributor of the two other parties.

Not all alterations of architectural works result in infringements of moral rights
  • Netherlands
  • 30 April 2019

The Supreme Court recently issued a long-awaited decision on an architect's moral rights of paternity and integrity. In recent years, several Dutch judgments have considered whether architects can oppose changes to their original building designs. The Supreme Court's decision further clarifies that it is difficult for architects to do so where the changes are necessary to alter a building's function.

Legislature introduces possibility to claim mass damages in collective action proceedings
  • Netherlands
  • 23 April 2019

The Senate recently adopted the Bill on Redress of Mass Damages in Collective Actions (RMDCA). The RMDCA enables representative entities to claim monetary compensation on behalf of their constituents, which provides aggrieved parties with more effective means of redress. The RMDCA also introduces stricter requirements regarding the admissibility of representative entities and the scope of collective action proceedings, along with other procedural changes.

Volume guarantees under transport and logistics contracts
  • Netherlands
  • 02 April 2019

A recent Utrecht District Court decision sends a strong reminder to parties in the transport and logistics industry that they must be precise and clear about what they are agreeing to in dealings with their trading partners. While the less formal requirements for concluding an agreement under Dutch law seem to benefit the transport industry, this decision shows that there are pitfalls to be considered.