The Bill introduces a one-tier board structure (a single board comprising both executive and non-executive directors) as an alternative to the two-tier board structure where there is a management board and a separate supervisory board. The one-tier board system must be embedded in the articles of association of the NV or BV concerned.

The Bill also provides for an amendment of the statutory provisions on conflicts of interest of members of the management board. Whereas current law provides for a restriction of the power to represent the company externally, the Bill is based on the principle that conflicts of interests have to be dealt with internally. Accordingly, the Bill introduces the principle that a member of the management board may not participate in the discussion and adoption of resolutions if such member has a conflict of interest with the company. Non-compliance results in the board resolution concerned being voidable. These new rules also apply to supervisory directors.

The Bill furthermore contains a provision limiting the total number of supervisory positions managing directors and supervisory directors may hold and a regulation which intends to create a more balanced composition of the board with respect to the gender of the members of the board.

The most important changes as compared to the old code are those relating to good education. The school is held responsible for providing good education. This is evident in the addition of the professionalism and integrity section to the code. Professionalism involves giving the leaders and staff the room to flesh out their responsibilities. The school leadership must also stimulate collegial accountability. Integrity pertains to transparency for parents, students and the environment. This requires a balance between trust and openness: an atmosphere must be created in which staff members and other stakeholders are unafraid to report suspected irregularities within the organisation. The duties of the supervisors have also been tightened. The supervisor is expected to monitor not only the hard side of the institution - good leadership - but also the educational side.

Lastly, a provision regarding the remuneration of directors and supervisors has been added, as the remuneration guideline no longer applies. This remuneration is not linked to the institution’s performance and must be disclosed each year in the annual accounts.

Unlike the code for secondary education, the Good Leadership Code for primary education will not change. That code is from a later date and took effect together with the the Dutch Act on Good Education, Good Governance. It has already been adapted to the existing law as a result.

For an assessment of articles of association and school regulations based on the new code or for relevant advice, feel free to contact us.

The relevant student’s claim pertained to her being allowed to wear a headscarf to school as an expression of her religious beliefs. Martijn Nolen: “Striking is that the judgment in preliminary relief proceedings does not indicate that she has been denied admission to the school or that she had been been suspended or expelled from the school. The judge actually only discussed whether the newly adopted policy was contrary to the law in a general sense. The appeal should therefore be applauded.”

The next question, relevant in actual practice, is whether the school board can actually invoke such a ban in the school regulations if a student comes to school wearing a headscarf. If that proves to be the case, the school board would be required to suspend or expel the student or to deny her admission. Then the real question must be addressed: is a measure of this type admissible in the individual, specific case, with reliance on the internal policy that in itself is lawful?

According to Martijn Nolen, case law on admission to privately-run denominational schools indicates that the school board’s policy must be consistent and must be made sufficiently known. It has also been established that a school board cannot simply suspend, expel or deny admission to a student who has already been admitted who wears a headscarf if that student is acting in violation of a rule adopted after that admission. Nolen: “A school board has a duty of care and must take that duty into account when an intermittent change is made to the conditions it imposes on students.”

In the revised decree (decree of 5 July 2011, no. BLKB2011/618M), the State Secretary of Finance further explained the difference between communication devices and computers and the like. The distinction is important in determining whether or not a tax-exempt allowance or benefit is involved. If communication devices are used more than 10% for business purposes, the allowance or benefit is exempt from tax. For computers and the like, the business use must be 90% or more to qualify as a tax-exempt allowance or benefit. Also with a view to developments in the area of smartphones, iPads and the like, the decree includes practical rules for determining whether it involves a communication device or a computer.

According to the decree, a ‘smartphone’ qualifies as a communication device if the screen diagonal does not exceed 17.78 cm. The screen and entry possibilities on such devices will then be too limited for lengthy use as a computer. An employer may plausibly demonstrate that a device with a larger screen is nevertheless a communication device. Pocket PCs, mini notebooks, netbooks, e-readers and navigation equipment do not qualify as communication devices. Those devices are subject to the rules for computers and the like.

A standing right is an entitlement to periodic payments. By utilising the standing right exemption, a standing right can be paid out exempt from taxation if the conditions set out in the Wages and Salaries Tax Act 1964 are met. One of the conditions is that the standing right serves in lieu of wages that are or will not be received. If the standing right exemption is applied, the periodic payments to be received in due course by the employee (or other beneficiary) are taxed, rather than the severance payment. An employee can defer taxation of the severance payment by utilising the standing right exemption. Taxation can be deferred until the earlier of the year in which the employee reaches the age of 65 or his death.

According to the Tax and Customs Administration, the standing right exemption cannot be applied if a lump sum severance payment - a ‘golden parachute’ - was stipulated in the employment contract. The Tax and Customs Administration holds that such situations do not meet the ‘in lieu of’ requirement because the standing right does not replace the wages that the employee will not receive but, instead, the entitlement to a lump sum severance payment. That entitlement replaces the loss of wages.

Although the Tax and Customs Administration’s position is debatable, it would be advisable to formulate the arrangements regarding a severance payment in an employment contract such that the amount of the compensation is laid down but not the form it will take. The form of the compensation (lump sum payment or standing right) must then be determined at the time of dismissal. With regard to existing situations, the current wording should be checked and modified, if necessary, before any premature dismissal takes place.

The relatively recent success of the television programme The Voice of Holland, the rights of which have been sold to various countries outside the Netherlands, demonstrate how valuable a successful format can be. Profit can only be made from a format, however, if it is covered by copyrights, which is not the case for all formats.

A format is an idea for, for example a television programme. Ideas as such, however, are not protected by copyright law; protection is only granted if a concept has been given substance by being fleshed out in specific details. Because it was not entirely clear how specific the details had to be, the question whether the format either is an (unprotectable) idea for a programme or a (protectable) programme format could not always be answered. The Court of Appeal has now provided some clarity in that respect.

The case before the Court of Appeal involved an idea that was thought of for the first Flodder film, which served as the basis for later Flodder films and a later television series. The later films and television series embroidered upon elements that were incorporated into the scenario for the first Flodder film. According to the Court of Appeal, the common characteristics seen in all of the films and the television series were conceived for the first film. Because of these characteristics, a certain pattern - the format - is already recognisable in the first film that is repeated in later films and television series. This specific format is distinguishable and sufficiently fleshed out for separate protection under copyright law. The format need not be registered prior to the creation of the individual episodes, as long as it was conceived in advance in a form that has been sufficiently specified and fleshed out as a basic idea in common elements (which are repeated in the episodes and developed further in the storyline), making the format structurally distinguishable from a rudimentary idea that has not been given shape.

The intention of the new Consumer Rights Directive is to improve coherence in the rules regarding consumer rights, and will replace Council Directive 85/577/EEC and Directive 1997/7/EC of the European Parliament and the Council. Changes in the new directive include the information sellers are required to provide and the consumer’s right of withdrawal with regard to online purchases. As a result, it will be easier for consumers to make cross-border purchases. One of the most important changes for consumers is the extension of the withdrawal period. While consumers currently have a period of seven work days after an online purchase to withdraw their order free of charge, this period will be extended to fourteen calendar days.

The next step in the process is formal approval by the Council of Ministers, which is expected to take place at the end of this month. The Directive will subsequently be published. After that, the Member States will be required to translate the Directive into national regulations, probably no later than by the end of 2013.

Much attention is also being devoted to consumer rights on the national level. Minister Verhagen recently announced that the new regulating authority, which will be created through the merger of the Dutch Consumer Authority, the Dutch Independent Post and Telecommunication Authority of the Netherlands (OPTA) and the Netherlands Competition Authority (NMa), will place central focus on consumers’ interests.

In the accountability document, the NZa presents an in-depth explanation of aspects including the requirement that self-employed specialists must be organised in a collective in which the self-employed specialists affiliated with the hospital take part if they want to continue to invoice through the hospital after 1 January 2012. This system, referred to as ‘via invoicing’, is an important criterium that self-employed specialists must meet in order to qualify as independent entrepreneur for tax purposes.

Self-employed medical specialists who have not yet organised in a collective need to start doing so quickly. Although 1 January 2012 appears to be a long way off yet, in addition to establishing a collective the medical specialists must reach agreement between themselves regarding their internal allocation of the revenue ceiling and fees, and make allocation and production arrangements with the hospital’s executive board.

We agree with the Dutch Medical Specialists Association that a professional partnership (maatschap) or cooperative (cooperatie) are the optimal types of legal structures for the required collective. The choice for a professional partnership or a collective depends on the specific situation at each hospital. Relevant factors in that respect include issues of reservation of funds within the collective and the possibilities for limiting the liability of the medical specialists. It might be possible to modify an existing cooperative or professional staff partnership to serve as a vehicle for the collective, but even in that event the allocation model - whether based on a benchmark, number of fte/workload or a combination of the two - must be transparent and laid down as binding in the articles of association, the partnership agreement or separate member agreements. We also recommend that the collective be organised in such a way that a streamlined decision making process is established in which all of the affiliated specialists can participate in the collective through their professional partnership or private limited liability company without, for example, a small minority being able to frustrate the decision making process.

This is one of the current issues confronting the healthcare sector in the Netherlands, ‘elicited’ by government entrenchment measures on the one hand and qualitative arguments on the other. What choice must be made by a healthcare provider? In which areas can healthcare be optimised? Will concentration minimise costs, or is distribution the best solution?

The issue of distribution or concentration of healthcare concerns every healthcare sector, whether it's hospital care or care for the elderly and disabled. The main dilemma at this time is whether to provide all healthcare independently or to seek strength in being selective or in cooperation instead.

In the past, the competence of the Cantonal/Subdistrict Court was limited to civil and other cases involving no more than EUR 5,000, along with a number of other types of cases, e.g. matters concerning employment or rental agreements, irrespective of the amount involved. The nature of the case is then determinant for the competency. As from 1 July 2011, the above-mentioned cases are now included under the competence of the Cantonal/Subdistrict Court based on their nature.

These modifications were made with the intention of improving accessibility to the courts. This is achieved in part because proceedings can be conducted before the Cantonal/Subdistrict Court without legal representation, and views can be verbally explained during the hearings.

Publication on behalf of Third Parties
As an alternative to filing the merger or division proposal with the trade register of the Chambers of Commerce, publication can now also take place via the website of the Chamber of Commerce. This can be accomplished by uploading the proposal. The documents to be filed digitally must be signed by the submitter, who must have a service provider certificate that is acknowledged by PKI Overheid (the Dutch Government Public Key Infrastructure). Van Doorne has the necessary certificate and is off course happy to assist you in such digital filings.

Publication on behalf of Shareholders or Members
A merging or dividing legal person can make electronic inspection possible of the documents that must currently be made available for inspection for members and shareholders at the company’s office. This can be accomplished by publication of the documents on the legal person’s website. This also applies to a true copy of the merger or division documents.

Notification in Announcement
If the aforementioned option of making the merger or division documents available by electronic means is used, notice hereof must be given in the filing announcement.

Other Reduced Administrative Burden
As briefly indicated in the introduction, reporting and documentation obligations are also being reduced. We will provide more information about this reduction in the next newsletter.

PTC developed the medicinal product Ataluren, for which no marketing authorisation has been granted or requested in the Netherlands. PTC performed research into the efficacy and safety of this medicinal product among patients with Duchenne muscular dystrophy. The sons, who suffer from this progressive and terminal illness that causes muscular dystrophy and that is terminal in most patients before the age of thirty, participated in this research. At the instigation of an independent committee, PTC prematurely terminated the research because the effect of the medicinal product had not been demonstrated. The parents subsequently lodged a claim for PTC or Genzyme - which shares responsibility for the European market - to continue to supply the medicine.

The Preliminary Relief Judge ruled that PTC and Genzyme rightly refused to continue to supply the medicinal product Ataluren. Putting medicinal products without marketing authorisation into trade is prohibited unless one of the explicitly defined exceptions applies. Reticence is due in applying these exceptions to the rule. More specifically, the Preliminary Relief Judge found that the compassionate use exception (in poignant cases) did not apply because the requirements for the exception were not met: no marketing authorisation has been requested and there are no clinical trials pending in Europe. The requirements for the specialty exception - named patient - also were not met: the medicinal product was not prepared according to the specifications and on the initiative of a physician, nor is it on the market in another country. In short: the exceptions that are carefully and strictly formulated in the Dutch Medicines Act leave no room for a further weighing of interests, no matter how serious the interests in improving the quality of the sons’ lives are.

The penalty decisions indicate that the OPTA applies a strict interpretation of the Dutch Telecommunications Act. That act sets out rules for the transmission of unsolicited communication for commercial, idealistic or charitable purposes. This includes, for example, approaching clients and prospects by e-mail, telephone or post.

Various regimes apply depending on who is being approached and in what manner. Prospective clients, for example, may only be approached by e-mail by prior consent, in which the recipient must continually be given the opportunity to opt out. The penalty decisions indicate that the OPTA applies highly specific requirements.

Approaching prospective clients by telephone is subject to mandatory prior verification of the official Do Not Call (Bel-me-niet register) register. Highly specific information must also be given to the call recipient during the telephone conversation. In respect of that standard, as well, the OPTA is strict.

Great care is therefore due when utilising direct marketing if damage to the reputation is to be avoided. What is more: if the rules are violated, the OPTA can impose fines of up to EUR 450,000 per violation. And the OPTA will not hesitate to do so.