Minister Opstelten informed the Senate that under current practice no licence needs to be requested for postponement of payment in regular commercial transactions and that this will continue to hold true. An example of a regular commercial transaction would be an energy supplier that offers a consumer the possibility of paying off an overdue debt in instalments without the supplier charging high costs. In that situation, the energy supplier would not be considered a credit provider. However, if exorbitant costs were charged, the payment arrangements would be subject to supervision, according to the minister.

A new exemption in the Exemption Regulation of the Wft will make clear that payment arrangements in regular commercial transactions will not lead to a licence obligation.

The Senate adopted the Bill on 17 May last.

Being unwilling to disclose sensitive financial information, some enterprises purposely risk a fine. It is public knowledge that the chain store Blokker, for example, absolutely refuses to publish its financial statements. Zeeman and C&A have also knowingly violated their filing obligations in the past for competitive reasons.

In response to these developments, the Public Prosecutor summoned a record number of enterprises in 2010: 156, which is 12% more than in the previous year.

The amount of the maximum fine shall probably not stimulate larger enterprises to meet their filing obligations. Considering the concrete number of violators, the chance of being “caught” is still negligible. The civil law sanction for directors should not be forgotten, however. In the event of bankruptcy, a director of an enterprise that has not met its filing obligation will be caught in any event, with the risk of personal liability for any liquidation deficit.

Incidentally, in March the European Parliament approved a proposal exempting small enterprises (enterprises with no more than ten employees, revenues totalling less than EUR 1 million and a balance sheet total of less than EUR 500,000) from the filing obligation. Probably, small enterprises in the Netherlands could therefore be exempted from this obligation in the future.

The Board’s objective will be to protect human rights and stimulate compliance with those rights in the Netherlands. The creation of this human rights institution is the outcome of an agreement made by the Netherlands in an international context - with the United Nations and the Council of Europe - under which all Member States will establish a national human rights institution.

The Board’s duties will be advising with regard to (proposed) legislation and regulations pertaining to human rights, studying the protection of human rights, reporting human rights violations and compiling recommendations. In addition, the Board will provide information in the area of human rights. The Board will also stimulate implementation of and compliance with treaties, directives and other regulations. Finally, the Board will assume the responsibilities currently assigned to the Dutch Equal Treatment Commission (Cgb): investigating and deciding whether a governmental body or private individual has discriminated in violation of any of the grounds specified in equal treatment legislation, such as race, gender, nationality, orientation, etc. A separate chamber within the Board will be charged with this adjudication. The establishment of the Board means the Cgb will be abolished.

The legislative proposal for the establishment of the Human Rights Board is currently pending before the Dutch Senate.

These amendments were sparked by a judgment rendered by the European Court of Justice. The ECJ ruled that workers on sick leave have the same right to paid annual leave as other workers. In the Netherlands, employees working 40 hours a week are entitled to 20 statutory days of paid annual leave. An employee is also often entitled to extra-statutory paid leave based on an individual employment contract or collective labour agreement.
Dutch annual leave legislation is currently not in line with the Court of Justice’s judgment because workers on sick leave only accrue holiday leave over the last six months of their illness, irrespective of its duration. Under the amended legislation, workers on sick leave will accrue holiday leave over the entire period of their sick leave. The employer and employee can make deviating arrangements stipulating that no extra-statutory holiday leave is accrued during illness.

In order to stimulate employees to take the accrued paid leave, a term of expiry is also set for the statutory days of paid holiday leave, which will lapse six months after the year in they were accrued. If paid holiday leave is not taken within that period, it automatically expires. An exception is only made if the employee in question was not reasonably able to take the holiday, in which case the “normal” term of expiry of five years applies. Whether an employee is not reasonably able to take paid holiday leave must be assessed based on the individual circumstances of the case. Employees that are unable to take their minimum holiday leave due to their employer will in any case be included in the exception. The employer and the employee may make deviating arrangements to the employee’s benefit in the employment contract.

The bill will be enacted on 1 January 2012. Consequently, as of that date every employee - irrespective of their health status - will accrue their statutory annual leave in full. The existing term of expiry will only apply to holiday leave accrued before 1 January 2012.

On 21 April 2011, the NMa imposed fines on two companies in the homecare sector for alleged market division. According to the NMa, the institutions entered into a non-competition agreement when they dissolved a joint venture. The NMa said it mitigated the fines by 25% because the homecare market is in transition. Companies in the homecare sector have had to make considerable changes within a short timescale and still have to implement changes in connection with the switch to a free market system imposed by the legislature. By reducing the fines, the NMa intends to prevent the fines from having an adverse effect on these developments.

The NMa made the homecare sector a priority in its Agenda for 2010-2011. It has meanwhile gained more trust in companies in the homecare sector and has therefore decided no longer to regard homecare as a priority. The NMa will switch to normal supervision, adopting the so-called ‘high trust approach’. This means that the NMa has trust in the care companies in the homecare sector but will impose heavy fines if that trust is misplaced and the NMa identifies breaches of the rules. After this change in the nature of supervision of companies in the homecare sector, monitoring compliance thus continues to be important.

Pieter Kalbfleisch was to retire on 30 June. He took leave after being accused of perjury by a witness in legal proceedings. Acting chairman Henk Don has in his role as a member of the Board of the NMa been responsible for supervision of competition in general since 1 October 2009. Recent decisions taken by the NMa demonstrate that there will not be a change in course. Henk Don is applying the competition rules in the same way as his predecessor did.

The identity of the new chairman of the NMa is still to be confirmed. The NMa, the OPTA and the Consumer Authority are due to merge in 2013. In the period ahead, the cabinet will be tackling the question of whether to bring the duties of the Dutch Healthcare Authority (NZa) under the auspices of this new supervisory authority as well.

Final managerial responsibility for quality and safety of healthcare is not new: it ensues from the Quality Act that focuses on (legal) persons who maintain a healthcare facility. The supervision framework, however, provides a substantive framework of the areas of attention applied by IGZ in its supervision. IGZ will assess the performance of executive boards based on a number of factors, which include the scope and seriousness of any identified risk and the board’s approach to the situation. Relevant factors could be the extent to which the problem is recognised, for example, as well as willingness to implement improvements. These factors seen in conjunction with the managerial organisation for quality and safety will affect IGZ’s ultimate assessment. IGZ is also authorised to seek direct contact with the supervisory council.

In 2000, following years of consultation, the European Commission announced a proposal for a Community Patent Regulation. However, the question as to which languages the patent would need to be translated into proved to be a huge stumbling block. Given that Member States would also need to give unanimous approval to this regulation, it looked as if the Community Patent would never come about. Nevertheless, on 8 March this year, the Commission announced its intention to create a Community Patent regulation on the basis of an ‘accelerated’ cooperation procedure. This accelerated procedure is seen as a last resort and means that the legislative proposal requires adoption by a mere one third of Member States. In this way, the exercise of a right of veto by a few Member States can be circumvented.

The bad news is that on 10 March last, the European Court of Justice delivered a scathing opinion. It opined that a European Patent Court is not compatible with European law. Thus it seems that this specialised judicial body, and thereby perhaps the Community Patent as well, will not come about just yet.

The new law aims to improve the measures for preventing and combating abuse of legal entities. In the current situation, the Ministry of Justice uses the declaration of no objection as a means of preventive supervision at the time of incorporation or amendment to the articles of association of a BV or an NV.

This preventive supervision is being replaced by a system of continuous monitoring. The scope of this monitoring will also be extended to cover several other types of legal entities, such as foundations (stichtingen), associations (verenigingen) and cooperatives. To the extent possible, monitoring will be based on digital information already available to the government in certain databases, such as the Trade Register and the Municipal Personal Records Database. This tightened monitoring will be performed using risk profiles and automated risk reports that can be followed up by investigation and prosecution.
Quality control will be established through enforcement covenants and enforcement partnership between supervisory and enforcement agencies aimed at combating abuse.

The Explanatory Memorandum gives the following reason for the amendment: “In practice, the existing supervision does not work well. The supervision is linked to a number of formal acts (incorporation or amendment to the articles of association), but the abuse may actually take place during the practice of the business or other activities. Moreover, preventive supervision cannot adequately address the use of straw men without negative antecedents. The current supervision... is therefore ineffective while placing an administrative burden on companies with share capital.”

As stated, the state pension age will increase to 66 with effect from 1 January 2020. This will be done in one go. The Cabinet has chosen this method because a gradual increase in pensionable age would lead to significantly higher costs of implementation. The pace at which the state pension age is raised is not wholly uncontroversial. In its Recommendation, the Council of State was critical of the planned timetable. The Council would have preferred to see a faster and/or further increase (to 67 perhaps?). In the view of the Council of State, this would do more justice to the scale and the urgency of the problems identified in the Explanatory Memorandum.

With effect from 1 January 2013, the maximum accrual of pension permitted under the tax regulations in an average-pay scheme will be reduced from 2.25% to 2.00%. The maximum accrual of pension permitted under the tax regulations in a final-pay scheme will be adjusted from 2.00% to 1.75%. As a result of the reduction in maximum accrual percentages, existing pension schemes that allow for a larger accrual than is permitted within the new tax framework will need to be amended. The changes within the tax framework will not apply to benefits accrued up to 1 January 2013.

Changes in pensionable age under the state scheme will not, in most cases, be automatically incorporated into employers’ pension schemes. The pensionable age of 65 will need to be adjusted separately. And, if the maximum pension accrual is exceeded at this time, the pension scheme will also need to be amended in this regard. That will need to be done before 1 January 2013. While this deadline does not apply to the former requirement, we consider it advisable nevertheless to make the amendment without delay. In both cases, it remains to be seen whether the employer has the right to implement the changes unilaterally.

We will all need to carry on working for a longer time: the newest legislative proposal under which employees will qualify for their pension at age 66 with effect from 2020 is hot off the press. But, as an employer, do you want your employees to keep working for longer? Or, will you be unable to prevent it because of age discrimination issues? Does the employment contract still end by operation of law when the employee reaches pensionable age? Of course, other alternatives, such as early retirement, are also conceivable, but in that case how do you avoid the RVU levy of 52%?

The opposite scenario is also possible: what if you would like an employee to carry on working for longer? Is that possible for a fixed term? Or would that automatically constitute a permanent employment contract? And, what consequences would it have for the employee’s accrual of pension?

During the seminar, Albert van Marwijk Kooy, Marjolijn Lips and Linda Jansen will use examples from practice to address employment law, tax and pension-related aspects of these issues. The seminar will be a breakfast seminar and will take place on 24 June 2011 at Van Doorne’s offices. The programme begins at 8 a.m. and will conclude at around 10 a.m. Breakfast will be provided.

We look forward to seeing you on 24 June!

Anyone wishing to contest an environmental permit that has been granted was - until recently -required to object to all these components individually in the stage of bringing forward any existing views/objections. Components (not mentioned in these views/objections but) only raised in appeal were excluded by the administrative court. This was known as the “onderdelentrechter”.

A recent judgement from the Administrative Jurisdiction Division of the Council of State (ABRvS) has changed all this “main rule”. In relation to environmental permits published on or after 11 April 2011, objections against components of a government decision which were not raised individually as views/objections, may now also be put forward for the first time in appeal.

Not everyone is content with this development. The permit holder, in particular, will not be pleased when he is only confronted at the appeal stage with objections (whether convincing or not) against the permit he had obtained. For the appellant, however, it could be an outcome. Objections which were overlooked in an earlier stage, can now still put forward in appeal.

On April 14, 2011, the Dutch Ministry of Finance published its “Fiscal Agenda” in which the tax policy of the Dutch government for 2011 and 2012 is laid down. The most important plans are (a) a step by step increase of the lower VAT rate (6%) in conjunction with a decrease of the income tax rate, (b) a limitation of interest deductions for acquisition holding companies, (c) the abolition of the possibility to deduct losses of a foreign permanent establishment from the profits of a Dutch business and (d) the introduction of a lower rate of income tax for business profits in exchange for the abolition of certain tax deductions. Based on the initial responses from the Dutch Lower House it is likely that the interest limitation provisions and the abolition of the deduction of permanent establishment losses will be introduced at a relatively short notice only.