17/02/2016

Labor law and Tax optimization, the war has only just begun!

tax-run This is legal news that Wolters Kluwer would have wished not to have to publish. Indeed, their tax optimisation techniques just suffered a severe loss against the French labor rights.

In 2007, the Dutch media and editing group Wolters Kluwer decided to merge several companies. This project was called the “COSMOS project”. As part of the restructuring, the subsidiary Wolters Kluwer France (WKF) borrowed 445 millions of euro from the parent company Wolters Kluwer (HWKF) at a higher rate than the normal market rate.

The high debt of WKF resulted in the cancellation of the employees profit sharing payments while it previously was about 5 millions a year. The parent company in The Netherlands, thanks to the tax optimization, was able to generate 555 million euros of yearly dividends.

09/02/2016

Dutch legislative reform introduces an obligation to notify data breaches also applicable to non-Dutch undertakings

files-and-folders The Dutch reform entered into force on the 1^st of January 2016 and contains an obligation to notify data breaches in a maximum of 72 hours from the occurrence of the breach[i]. The obligation used to be valid only for data controllers of certain sectors [ii], while this new law extends the obligation to all data controllers[iii]. Besides the extension of the scope of the obligation, the reform also provides for higher penalties in case of non-compliance. If an undertaking failed to notify, the fine can reach up to 820 000€[iv].

03/02/2016

Replacement of the goods due to their lack of conformity: Is a pet replaceable?

guinea-pig “The greatness of a nation and its moral progress can be judged by the way its animals are treated.”(Gandhi).

France currently has more than 63 million pets, which means that almost 1 out of 2 households has at least one animal. Despite these, the legal status of the animal has evolved only recently. Indeed, the French legislature has chosen to offer to the animal a new legal status: “Animals are sentient beings. Subject to the laws that protect them, the animals are subjected to property law”. Although the animals are still subjected to property law, they are different than goods and thus have their own legal status. On December 9, 2015, the French High Court issued a judgment in the matter.

25/01/2016

Terrorism: The employer’s duty to protect the mental health of his employees

businessmen France has experienced these last months’ horrific terrorist attacks and everyone feels more or less affected by this danger. It seems then important to review the obligation borne by the employer to protect the mental and physical health of his employees.

In a judgment of November 25^th, 2015, the French Supreme Court (Cour de Cassation) had the opportunity to rule on this safety obligation in relation to terrorist acts. In 2000, Air France took over the employment contract of a first class cabin attendant on long-haul flights. On September 11^th, 2001, the employee witnessed the attacks against the World Trade Center. On the return of the crew, Air France implemented a psychological support for its crewmembers. In April 2006, while the cabin attendant was about to board on the flight, he suddenly suffered from a panic attack, which resulted in medical leave. He was dismissed, on the 15^th of September 2011, for failing to report to a medical check-up aimed at finding out if he was able to exercise his job on the ground.

25/01/2016

Can the artistic creation of robots be entitled to copyright protection?

robot A few years ago, this question will have seemed coming straight out of one of the Hollywood movies. But today, due to the technology development this question finds a place in doctrine.

However, this interrogation is subject to debate within the legal profession. In its current states, French law does not allow a corporation to claim copyright on an artistic creation. The firm can only be the owner of the copyright in the case of collective work. This legal conception may appear logical, as behind the corporation, an individual is the author of the work. But what can be done about the issues of work ownership created by robots?

25/01/2016

Joint Ventures in China

In the last decades there is a stronger cooperation between China and The European Union at the governmental level (e.g. negotiations for an EU-China investment agreement or China’s one Belt One Road policy), leading to a better environment and more business opportunities for European business and investors. Setting up a joint venture (JV) with a Chinese partner is still a very common method of entering the Chinese market and in certain industries it is the only way of registering your business in China, such as mining businesses, telecommunication and information technology services, breeding and seeds developing industries as well as in the medicial field Read more

22/01/2016

Trademark infringement in China and the procedure to protect trademarks

Without a doubt, China is one of the fast growing economies in the world, which in return has spurred an exponential interest in understanding China’s legal and administrative system. The weak Chinese enforcement system and lack of trademark protection is a big concern for many international businesses that wish to explore the Chinese market. Good news is that China making serious efforts to improve its protection of trademarks in recent years. It is modernising its trademark application process, improving the protection of well-known trade marks and establishing special IP courts in Beijing, Shanghai and Guangzhou. However, trademark infringements and misuses are still problematic for many foreign companies since trademark enforcement procedures in China are very difficult and complex.

Companies facing trademark disputes may have various approaches to defend their rights, using either administrative or judicial channels. This article summarizes different ways of trademark protection in China once an infringement has taken place.
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22/01/2016

Bad-faith Trademark Registration in China

apple For international companies that wish to bring their products to the Chinese market or manufacture their products in China, appropriate protection of trademarks is very important to avoid the risk of trademarks being misused or infringed by someone else. However, European businesses using trademarks written in Latin characters, do not immediately have sufficient protection for their trademarks written in Chinese, even if the pronunciation in Chinese is the same. Read more

11/01/2016

Reform of the Dutch arbitration law

800px-Shake_hand After recently blowing the first candle of the entry into force of the law reforming the Dutch law on Arbitration, we will take the opportunity to briefly come back on it.

The law of 1^st January 2015, inspired by the UNCITRAL Model Law, acknowledged the developments that occurred in the field of Arbitration since the entry into force of the law of 1^st December 1986, which regulated the matter until then. The new law is applicable to all arbitration procedures initiated from 1^st January 2015, as well as related proceedings before national courts.

10/09/2015

Precedent or sui generis in the art world: Judge condemned an artist to create a big and ‘roomfilling’ piece of art

The 24^th of June the Court in Rotterdam, gave judgement in the case Kreuk vs. Vo. [1] In this case Bert Kreuk, a Dutch art collector, sued the Danish-Vietnamese artist Danh Vo because of a default of contract. Vo had failed to deliver a piece of art for “Transforming the Known”, an exhibition of Kreuk’s collection in the Gemeentemuseum (Municipal museum) of The Hague.

Kreuk sued the artist for €898,000. Despite the fact that the judge decided that Kreuk won the case, the artist was not condemned to pay the sum of money that was demanded, instead Vo got the order to fulfill the original assignment (which means in this case that Vo still needs to create a big and “impressive” piece of art for the art collector). In the words of the Court: By fulfilling the contract the artist needs to take the demands of the art collector into account, which means that he needs to create a piece of art that “already at first sight, partly because of the size of it, will be experienced as impressive by the spectator”.