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Making publicly funded knowledge available to others for use in new projects, products and services is called valorisation. Valorisation can lead to knowledge being shared, knowledge being utilised, competencies being developed and facilities being used by multiple parties.

Within your own organisation, valorisation contributes to more effective use, or improvement, of the existing knowledge. This helps the organisation in its further development. Another impact is that the organisation becomes more attractive to investors, employees and students. For example, valorisation within your organisation may have the following effects:

• your employees are offered the opportunity to be entrepreneurial, which generally leads to greater involvement on the part of those employees. They are less likely to leave as well;
• businesses can be linked to projects that emerge through knowledge valorisation;
• valorisation projects create work placement opportunities for students;
• the familiarity with entrepreneurship within your knowledge institute increases, not only among teaching staff but also among students;
• knowledge is not lost through staff turnover.

Of course valorisation of knowledge and of new or existing ideas is only possible if the people who possess that knowledge are indeed willing and able to make the necessary investments in terms of time and energy. This can be encouraged by allowing them a greater or lesser degree of influence or responsibility in the process. For example, by asking them for input when organising a new programme, as a point of reference for questions or even as the programme ‘owner’. If the idea has sufficient potential, a separate legal entity might even be created. The person who originally thought of the idea may then be given influence and possibly financial rights in that legal entity. Naturally this is only possible if it does not drain government funding.

The interaction between the field and theoretic knowledge encourages further development and makes it possible to market the knowledge or the idea. In some cases, grants and loans are available for such initiatives. The most important scheme is the Education Network Enterprise (Onderwijs Netwerk Ondernemen) scheme. This year, a total of 175 primary schools, secondary schools and regional training centres have applied for grants to encourage enterprise in education. Over 7 million euros has been earmarked for this purpose by the Ministries of Education and of Economic Affairs, Agriculture & Innovation for 2010. Further funding will very probably be set aside for 2011, although the amount is not expected to reach the amount released in 2010.

Van Doorne will be happy to exchange ideas and help you implement solutions in this area.

For more information please contact Nienke van Dijk or Marinus de Waal, Practice Area Education.

The amendment to the exemption does not bring any changes for professional education programmes recognised by law. However, the situation has changed for businesses providing programmes without official recognition. Unless they are financed from public funds and are listed in the annex to the Dutch Higher Education and Research Act (Wet op het hoger onderwijs en wetenschappelijk onderzoek) or the Dutch Adult and Vocational Education Act (Wet educatie en beroepsonderwijs), they are required to register with the Short Professional Education Register (Register Kort Beroepsonderwijs, RKBO) if they wish to qualify for the exemption. Businesses that do not register with the RKBO are liable to VAT and are required to charge VAT on their courses and programmes.

Any business that wishes to register with the RKBO will be evaluated based on an external audit. As a result, it is possible that not every institution that wishes to be registered can in fact be registered directly with effect from 1 July 2010. To prevent a situation in which those institutions would be forced to charge VAT for a relatively short space of time, they have the option of continuing to apply the exemption for the professional education that they provide during the period from 30 June 2010 until the date on which the institution is included in the RKBO. However, this is subject to the condition that the institution signed up for registration in the RKBO before 1 October 2010 and is included in the register no later than 31 December 2010.

The amendment to the exemption for education means that, starting 1 July 2010, it is no longer possible for a single legal entity to provide both taxed and untaxed courses. Obligations to provide courses/programmes that were contracted before 1 July 2010 will remain subject to the old regime until 1 January 2011: the provider may decide whether or not to charge VAT on each type of course/programme. Because a decision has to be made for each legal entity as to whether to provide courses that are, or are not, subject to VAT, it may be an attractive option to provide the courses through two legal entities rather than one. One legal entity would then apply for RKBO registration, while the other legal entity would provide programmes and courses that are subject to VAT.

If you wish to investigate whether splitting your activities in this manner and dividing them over multiple legal entities is an attractive option for you, please contact Wiebe de Vries or Nienke van Dijk, Practice Area Education.

The facts in the case were as follows. Within the Heineken group, all the staff is employed by Heineken Nederlands Beheer BV (HNB). HNB seconds the staff to the various operating companies of the Heineken group in the Netherlands. A number of employees were seconded to Heineken Nederland BV, where they provided catering activities. In March 2005, Heineken Nederland BV transferred its catering activities to Albron, a catering firm. Albron and Heineken Nederland BV took the position that the rules regarding transfer of undertaking did not apply to the employees, as the employment contracts of those employees were not with Heineken Nederland BV but with HNB. According to Heineken and Albron, this meant that the employees were not automatically transferred to Albron (while keeping the same terms of employment), and that Albron could offer the employees ‘less favourable’ terms of employment. The employees objected to this course of events. They argued that, as a result of the transfer of the undertaking, they had automatically become staff members of Albron and that they had therefore retained their former terms and conditions of employment.

The ECJ ruled in favour of the employees: it is not necessary for employees to have employment contracts with the transferor (Heineken Nederland BV) to be included in the rules for transfer of undertaking. The rules for transfer of undertaking also apply to employees who have been permanently seconded to a different undertaking within the transferor’s group.

This ruling may affect more companies as the ECJ’s rulings have retroactive effect. It is therefore likely that employees will be presenting claims in this respect. Whether this ruling will have broader implications in practice remains to be seen, as it is limited to intra-group secondment where employees are seconded permanently (rather than for a limited period only). At present, it does not appear that the ruling applies to secondments outside a group of companies.

For more information please contact Aedzer Oreel, Practice area Employment.

The NMa emphasises that, in principle, forms of cooperation between different disciplines in the healthcare chain (continuity of care) are not prohibited by competition law. It is important that the care be properly coordinated in order to ensure that the various links in the chain cooperate smoothly. However, NMa has also found that in their partnerships some home care organisations go beyond what is necessary to ensure chain cooperation. In some cases prohibited arrangements have been made. Examples of arrangements that are prohibited by the Dutch Competitive Trading Act (Mededingingswet) include price fixing and arrangements about the division of markets or clients.

Compliance rules may serve to help enterprises prevent situations in which their employees are in violation of competition law. According to NMa, it is the responsibility of the supervisory boards of home care organisations to remind the boards of directors of the importance of compliance rules.

For more information please contact Sarah Beeston, Practice area European and competition law.

Most businesses in the care sector cannot deduct the VAT charged to them. If activities that they generally provide themselves are outsourced to third parties, the payment will mostly be subject to VAT. This means that outsourcing becomes relatively expensive, whereas outsourcing in and of itself might be more efficient and therefore cost-effective. The VAT compensation fund will help eliminate these adverse consequences.

The way in which such a VAT compensation fund will be financed is not yet known. Whether the sector will benefit on balance is still unclear. For example, the VAT compensation fund for municipal and provincial authorities is financed by a reduction in payments from the Municipalities Fund and the Provinces Fund, meaning that those authorities effectively pay for the VAT compensation fund themselves.

Until the VAT compensation fund for the care sector is introduced, it will remain important to optimise the VAT implications of outsourcing work and cooperating with other care institutions.

For more information please contact Martijn Kouffeld or Wiebe de Vries, Practice area Health Care.

Schering Corporation's patent concerns claims for the combination therapy of ribavirine with interferon/peginterferon alpha for treating ‘naive’ patients (i.e. patients who have not previously undergone therapy with ribavirine or any interferon for a Hepatitis C infection) infected with Genotype 1 Hepatitis C.

Teva Pharma sells the generic medicinal product ribavirine. It follows from the summary of product characteristics and the information leaflet for that medicinal product that it is not indicated for the combination therapy for naive patients with Genotype 1 Hepatitis C. According to the District Court, such a disclaimer, which means that not all characteristics described in the patent are met, in principle constitutes sufficient grounds to rule that no infringement of the patent has occurred.

This might be different if it could be proven that the generic medicinal product ribavirine is indeed prescribed for naive patients with Genotype 1 Hepatitis C. In the case in question, however, it was established, without being refuted, that a doctor will not choose a non-approved indication. Doing so would in principle constitute a violation of the Dutch Medicines Act (Geneesmiddelenwet), which states that prescribing medicines for other symptoms than the registered indications is permitted only if the profession has developed relevant protocols or standards. If such protocols or standards are still under development, the doctor must consult a pharmacist.

For more information please contact Ricardo Dijkstra, Practice area Pharma, Technology and Intellectual Property.

The Advertising Code Committee based its decision on the Dutch Advertising Code for Alcoholic Beverages (Reclamecode voor Alcoholhoudende Dranken). That Code, which was compiled by the alcohol industry itself by way of self-regulation, prohibits any form of alcohol advertising at events or locations where more than a quarter of the people attending are minors. If the situation is unclear, it is the advertiser's responsibility to prove that minors make up less than 25%. Evidently Kampong and Heineken failed to do so in the Kampong case.

The media are playing down the importance of the Kampong decision, commenting that the decision is based on self-regulation, only has significance to the relationship between the parties involved, and will not be upheld on appeal.

However, the question is whether this critical view of the decision by the media is not primarily a case of wishful thinking. The text of the relevant clause in the Code is clear, and does not appear to leave much scope for a different interpretation on appeal. Moreover, self-regulation or not, theoretically anybody may hold the alcohol industry responsible for the arrangements that were made by its members and that are formalised in the Code. It appears to be only a matter of time before further complaints will follow, at the same sports club or elsewhere. Sponsors would be advised to start thinking about how to deal with such complaints. Hopefully Kampong has alerted sports clubs with a large proportion of young members to the risks involved, as many sports clubs are sponsored by breweries. Those clubs should ask themselves whether their sponsoring will be able to withstand such an unforeseen circumstance. If not, it might be time to alter the contracts in this regard.

For more information please contact Kriek Wille, Practice area Intellectual Property and Entertainment and media.

Agreements
The object of the bill is to prohibit tacit renewal of agreements for regular deliveries of goods (including electricity but excluding newspapers and periodicals) or for the regular provision of services (subscriptions to gyms or alarm system services, for example). The act will not apply to financial products such as insurance policies.

It is intended to bring an end to tacit renewals of contracts and subscriptions that are no longer wanted. Such provisions are generally set out in the terms and conditions. Tacit renewal will be replaced by the option of tacitly converting the agreement into an indefinite agreement after one year. That agreement may then be terminated at any time, with a maximum notice period of one month. The consumer will not be required to take any action to maintain the agreement. The chief benefit for consumers is that they may terminate their agreements at any moment they wish rather than being forced to wait another year.

The manner in which agreements are terminated will also be simplified. Termination may not be required in a manner that differs from how the agreement was concluded. This means, for example, that agreements that were entered into orally (by telephone) may also be terminated by telephone.

Associations
An obligation will be introduced for associations to ensure that members will be able to easily examine the information necessary to terminate their membership. The information must at least be displayed prominently on the website's homepage and on pages 1, 2 or 3 of the membership magazine, if the association uses those forms of communication. Since members of an association can or could influence the terms of membership through their membership, the regime for membership of associations is less strict than that for commercial enterprises. No prohibition against automatic renewal of memberships will be introduced. Membership will remain governed by the guarantees laid down in the association's articles and in Book 2 of the Dutch Civil Code. Another factor on which this decision was based is that, in order to ensure that associations function properly, it is vital that they be able to prepare budgets for the coming financial year in time without undue uncertainty about their membership numbers.

Services that are offered by an association will, however, be subject to the limitations on contract law as described above. A point in case is a subscription to the roadside assistance service provided by the Royal Dutch Touring Club ANWB. This is a separate service that exists alongside the membership.

Consequences
The bill means that terms and conditions will have to be revised in good time. Any clauses in terms and conditions that are part of agreements with consumers will be qualified as unreasonably onerous if they are in contravention of this bill. Associations need to ensure that their websites and association magazines prominently display the information about membership cancellation.

For more information please contact Martine Höfelt (general conditions) Practice area Litigation and Insurance or Nienke van Dijk, Practice area Notarial Practice.

Convening GMSs
The convocation term for listed companies has been extended to at least 42 days prior to the GMS. This term applies not only to the Annual General Meeting, but also to Extraordinary General Meetings. The meetings of listed companies must be convened by means of an electronically published announcement. However, if the company's articles of association state that meetings must be convened by announcement in a national newspaper, they may not be convened solely by a public announcement using electronic means.

Mandatory registration date for GMSs
The regime of a registration date (28th day before the GMS) is mandatory for listed companies and optional for non-listed public companies. This means that the right of shareholders to i) take part in a GMS and ii) vote at that GMS must be established based on the shares that they held as at a certain date ‘prior’ to the GMS (the registration date).

Works council's right to speak during the GMS
The works council of any public limited liability company - regardless of whether it is listed or non-listed - has the right to determine and explain its position at the GMS. The works council has this right with regard to motions for the following resolutions:

• adoption of the remuneration policy;
• approval of important resolutions of the board of directors (Article 107a, Book 2 of the Dutch Civil Code); and
• appointments, suspensions and dismissals of members of the board of directors and supervisory board.

Right to place an item on the agenda
One final amendment that should be noted concerns the shareholder's right to place items on the agenda for the GMS. This amendment also applies to all public limited liability companies. In accordance with the Directive, the Shareholder Rights Act abolishes the grounds for refusal (i.e. the refusal to place an item on the agenda) and introduces a substantiation requirement (for placing an item on the agenda).

For more information please contact Robbert Ros, Practice area Notarial Practice.

Within sight of the expiry of the period of protection of a particular patent owned by Glaxo Group, Pharmachemie applied for a marketing authorisation for Ondansetron, a generic medicinal product. After having obtained that marketing authorisation, Pharmachemie had that medicine registered in the so called G Standard: a database containing information about all products (medicinal products, medical aids, homeopathic products) that are or might become available from a pharmacy. It was then published before Glaxo Group’s patent expired. A disclaimer was included that stated that the patent had not yet lapsed and that Ondansetron would not be available for trade before the patent lapsed.

In the first instance, the District Court of The Hague held that the mere act of publishing the medicinal product in the G Standard does not constitute a patent infringement. The District Court did not consider registration in the G Standard to constitute ‘offering for some purpose’, but as an act in preparation of the provision of Ondansetron. According to the District Court, Pharmachemie had not used the G Standard as a means for offering generic Ondansetron either; it had been obliged to do so in order to enable trade in the product immediately upon the expiration date.

However, in proceedings before the Court of Appeal of The Hague, that court ruled that this act did in fact constitute ‘offering for some purpose’. The Court of Appeal held that it was reasonable to assume that when prescribing or ordering medicinal products, users of the G Standard allow themselves to be guided in part by the knowledge that in the near future a generic variant of a medicinal product with the same active substance will become available. It was considered important in this context that generic medicinal products are considerably cheaper than patented products. In view of these findings, the Court of Appeal was of the opinion that the publication influences market conduct. The circumstance that actual trade will not commence until after expiry of the patent - and therefore the disclaimer - does not alter this. Based on this consideration, the Court of Appeal ruled that Pharmachemie Ondansetron made an offer for some purpose and as such infringed upon Glaxo Group’s patent.

For more information please contact Ricardo Dijkstra, Practice area Pharma, Technology and Intellectual Property.

The afternoon was introduced by Cees Kniestedt, a partner in Van Doorne's Property section. He was followed by Prof. Jan Struiksma (Professor of Administrative Law) and Joos de Bakker (Omniplan), who spoke about the legal and public administration benefits of the new law.

The fact that the Wabo still raises quite a few questions was apparent from the questions and discussions with the audience. One thing that became clear was that, although the Wabo is aimed at simplifying the procedure for applying for permits (‘one-desk’ concept), it is as yet uncertain whether it has in fact become simpler to issue (and possibly contest) environmental permits. Specialist know-how is still indispensable in current environmental law.

All in all, it was a successful event, and at the end everyone was given a fact sheet prepared by Van Doorne that outlined the Wabo in general terms.

For more information please contact Cees Kniestedt, Practice area Property.

When the Wabo entered into force (1 October 2010), as foreseen, some applications for permits under the old regime were still being processed. The transitional regime includes rules for determining how to handle such applications after 1 October. It follows from those rules that applications for a permit, dispensation or project decision that were submitted before 1 October 2010 will be handled according to the old rules. Permits, dispensations and project decisions that were already in place on 1 October and are irreversible or became irreversible after that date qualify as environmental permits from that moment forward.

In connection with these rules, a difficulty emerged regarding project decisions for construction activities. Under the old rules, essentially, a project decision did not become irreversible until at the minimum a first-phase building permit had been granted and had become irreversible. However, first-phase building permits no longer exist under the Wabo. This implies that any project decision for a construction activity for which an application was filed before 1 October 2010, with a separately requested first-phase building permit, cannot become irreversible because the building permit cannot be granted as such. This in turn means that such a project decision cannot be equated with an environmental permit (as it is not irreversible). As a result, after 1 October the project decision cannot resolve a planning conflict for a construction activity for which an environment permit is required after 1 October.

This might seem like a purely academic problem, yet it does in fact have practical consequences, chiefly because of the efforts required from all parties involved to resolve any conflicts with the planning regime in a legally valid manner in order to enable construction activities. Nor is it in all cases a viable option to commence a new procedure for the entire case after 1 October. The legislature has now identified this omission in the transitional regime and has been preparing amending legislation, in part because of the commotion it caused. That amending legislation will be presented as soon as possible, as part of a broader legislative proposal. According to Minister Tineke Huizinga, the absence of a transitional regime did not mean that project decisions had immediately lost their value. She stated that converting the project decision into an environment permit is a formality.

The upshot is that the new regime for environmental permits requires a close eye and it will take some getting used to.

For more information please contact Cees Kniestedt, Practice area Property.

Under current legislation, a company qualifies as a property entity if 70% or more of its assets consist of commercially operated immovable property situated in the Netherlands. In the event of a transfer of shares in a property entity, the acquiring party is liable to pay property transfer tax on the value of the immovable property that the shares represent. The rate for property transfer tax is 6%.

The Cabinet feels that artificial constructions can be used as a simple means of manipulating the composition of an entity's assets and consequently avoiding the property transfer tax levy on the acquisition of shares in the property entity.

That is why the tax plan for 2011 includes a proposal for a stricter qualification of property entities. With effect from 1 January 2011, an entity will be qualified as a property entity if:

• 50% or more of its assets consist of immovable property. For these purposes, the distinction between immovable property situated in the Netherlands and abroad will no longer apply;
• at least 30% of the entity's assets consist of immovable property are situated in the Netherlands; and
• 70% or more of the total immovable property is commercially operated.

With these proposed changes, the tax base for property transfer tax will be increased significantly, and acquisitions of shares in an entity that owns Dutch investment property are more likely to be taxed.

For more information please contact Ewout van Asbeck or Thijs Clement, Practice area Tax.