Publications

Publications
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            [post_date] => 2017-09-04 10:36:55
            [post_date_gmt] => 2017-09-04 08:36:55
            [post_content] => On January 18, 2017, the EU Regulation No 655/2014 entered into force. This regulation creates the possibility to obtain a European Account Preservation Order to freeze funds in bank accounts. Under EU-law, regulations are directly applicable in EU countries. They do not need to be transposed into national laws. The direct effect ensures the application and effectiveness of the EU regulation. 

A creditor seeking to recover a monetary claim in Europe will try to take enforcement actions against his debtor's bank account. Before the above mentioned EU Regulation, there was no bank attachment or preservation order that could be enforced throughout the EU. Regulation 655/2014 establishes a new uniform European procedure for the preservation of bank accounts. This procedure allows creditors to preserve the amount owed in a debtor's bank account located in a Member State of the EU. The regulation covers all civil and commercial matters in cross-border cases, except certain defined matters such as claims against a debtor during an insolvency-procedure.

The preservation order is available for the purpose of securing claims that are due and payable (opeisbaar). The procedure for a preservation order is available to a creditor wishing to secure the enforcement of a later judgement on the substance of the matter prior to initiating proceedings on the substance of the matter and at any stage during such procedures. It is also available to a creditor who has already obtained a judgement, court settlement or authentic instrument requiring the debtor to pay the creditor's claim.

Ex parte procedure
The European Account Preservation Order is issued in an ex parte procedure: in absence of the debtor and without the debtor's knowledge. This 'surprise effect' is essential for the effectiveness of the order. If the debtor is warned the creditor wants to freeze his accounts, chances are that the debtor will move the money elsewhere by the time the order is issued and executed. Furthermore this regulation is effective because the application (and later the request) cam be submitted easily by standard forms.

Security
Because of the absence of a prior hearing of the debtor, the regulation provides specific safeguards in order to prevent abuse of the preservation order. One of these safeguards is the possibility to require the creditor to provide security to ensure that the debtor can be compensated at a later stage for any damage caused to him by the preservation order. This security can be provided – for instance – by a security deposit, a bank guarantee or a mortgage. Article 701 of the Dutch Code of Civil Procedure also contains a possibility to require the creditor to provide security, but this is not a prerequisite to attach before judgement.

Information of bank accounts
To make it easier for the creditor to recover its claim, the regulation provides the creditor with access to information about bank accounts. If a creditor does not know with which bank the debtor holds an account, he may use a special procedure for obtaining information about this account. The creditor can only request the court for access to information if he has obtained an enforceable judgment, court settlement or authentic instrument which requires the debtor to pay the creditor's claim. Under Dutch law it is not possible for creditors to obtain information in a similar way of the debtor's bank account.

Preservation order doesn't block the whole bank account
Only the funds held on the bank account to a maximum of the amount specified in the preservation order, are possible to be attached in accordance with the regulation. Under Dutch law the attachment includes the total amount of the bank account.

Conclusion
The preservation order makes it easier to collect cross-border claims. It gives a creditor the opportunity to take enforcement actions against his debtor's bank account located in a Member State of the EU. Conversely, the regulation gives better protection to the debtor than the Dutch procedure, for instance because of the providing of security, required by the creditor.

More information
Would you like more information or personal advice? Please contact Daniëlla van Hoenselaar and Monica Leenders, or one of our other specialists in civil procedural law, they will be happy to assist you on this subject matter.

September 2017
            [post_title] => A simplified preservation of bank accounts in Europe
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            [post_date] => 2016-09-20 13:50:08
            [post_date_gmt] => 2016-09-20 11:50:08
            [post_content] => In April 2015, the Dutch Supreme Court has considered a tomato case. The facts in this matter were as follows.

The Dutch claimant has purchased a tomato cargo from Primar in France. Primar has delivered these tomatoes from Morocco via Perpignan, France, to the claimant in the Netherlands. Subsequently, the claimant has shipped the tomatoes to its customer in Moscow, Russia. At arrival in Moscow, the customer rejected the tomatoes because of a germ infection. Which party should in this event bear the ensuing risk and damage?

It appears from the facts of the case that the tomatoes were not of satisfactory quality at arrival in Moscow. It is, however, the question, whether such defect already existed at arrival in the Netherlands, since that is the place where Primar has delivered the tomatoes and where the risk has passed to the claimant. As from that moment the claimant is responsible for the conformity of the goods. It must be assessed whether the cause of the lack of conformity of the tomatoes can be traced to a defect which already existed before delivery in the Netherlands.

The court of appeal has not decided on this issue. Although it is not clear whether the tomatoes have been shipped by the claimant to Moscow in a proper manner (cooled and under the right temperature), the court ruled that the damage will be for the risk and costs of the claimant. The Supreme Court annulled this ruling, since the court of appeal has not answered the question whether the defect already existed at the moment of delivery in the Netherlands. Another court of appeal will now judge the case.

This case shows the relevance of inspection of the goods at the moment the risk passes from the seller to the buyer and the importance to notify the seller in case of lack of conformity of the goods. Especially when it comes to contracts for the international sale of goods. In such case, in principle, the United Nation Convention on Contracts for the International Sale of Goods (1980) ("CISG") applies if the contracting parties have their place of business in different states being a member to the convention, such as the Netherlands and France in the tomato case.

On the basis of article 38 CISG the buyer must examine the goods within as short a period as is practicable in the circumstances. Article 39 CISG stipulates that the buyer loses the right to rely on a lack of conformity of the goods if he does not give notice to the seller specifying the nature of the lack of conformity within a reasonable time after he has discovered it or ought to have discovered it.

In the tomato case it is questionable whether the claimant will be able to recover the damage from Primar. The Supreme Court has decided that another court of appeal must assess whether the tomatoes lacked conformity at the moment the risk passed from Primar to the claimant, of which the burden of proof is on the claimant. If the claimant succeeds to proof so, the question arises why the tomatoes have nevertheless been shipped to Moscow. In this connection, it is also decisive that the claimant has timely given notice to Primar of the lack of conformity.

In conclusion, in the event of an international purchase of goods, the buyer should be aware of its duty to inspect the goods and to notify the buyer in case of lack of conformity of the goods. If the buyer does not meet this obligation, he loses the right to rely on such lack of conformity and will not be entitled to claim any damages or to take other legal actions.

Contact information
Should you have any questions about the international sale of goods or doing business in the Netherlands and abroad in general, please do not hesitate to contact one of our Commercial contracts lawyers or the members of our International Desk.

 

 
            [post_title] => International sale of goods: buyer, be aware of your inspection and notification duty!
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            [post_date] => 2016-02-24 14:55:42
            [post_date_gmt] => 2016-02-24 13:55:42
            [post_content] => On June 13, 2014 the Consumer Rights Directive will be incorporated in the Dutch Civil Code. As from that date there will be new rules for every entrepreneur offering products or services online, at a distance, to consumers, for example through an online store. What should you keep in mind if you have a webshop?

Duty to provide information
Each webshop owner has an extensive obligation to provide information. Prior to the conclusion of an agreement with a consumer, you must provide sufficient, clear and comprehensible information on, inter alia:
  1. the main features of the product or service;
  2. the identity of the seller (name, address, telephone number, email address, commercial register number, VAT number);
  3. the price of the product or service including all taxes;
  4. the arrangements for payment and delivery, the delivery time and the complaints policy;
  5. the delivery costs (if applicable);
  6. the existence of the legal obligation to deliver a product that conforms to the agreement, any assistance and after-sales services and guarantees;
  7. the duration of the agreement or – in case of an agreement for an indefinite period or automatic renewal – the conditions for terminating the contract;
  8. the consumer's right of withdrawal (conditions, terms and modalities for the exercise of this right) and the model withdrawal form (modelformulier voor herroeping);
  9. the general terms and conditions.
In addition, in the order process you must communicate clearly visible and prominent near the order-button that the consumer takes on a payment obligation by concluding the agreement. You could do this, for example, by including an order-button with the text "order with payment obligation". Furthermore, it is not allowed to let the consumer buy additional products or services by pre-filled tick boxes ("opt-out"). The consumer must expressly agree with the purchase of additional products or services, for example, by checking the box himself ("opt-in"). The right of withdrawal Under the new regulations, the consumer is entitled to withdraw from the contract within 14 calendar days (instead of 7 working days). The right of withdrawal means that the consumer has a trial period (no try term) of 14 days within he may decide to cancel the agreement. If the consumer uses this right, he will have 14 calendar days to return the product. In some cases, the consumer has no right of withdrawal, for example when it comes to the supply of a product that has been manufactured to the consumer's specifications or in the case of the supply of products that spoil quickly or have a limited shelf life. A webshop owner must extensively inform the consumer about the right of withdrawal. The following information must be provided:
  1. the conditions, time and manner in which the right of withdrawal can be used;
  2. the announcement that the consumer bears the cost of returning the products when he exercises his right of withdrawal and the amount of costs when the return can not be made by regular mail;
  3. the announcement that the consumer has to pay the reasonable costs of a partly used service, if he uses his right of withdrawal;
  4. the model withdrawal form (modelformulier voor herroeping) as set out in the annex of the European Directive;
  5. the announcement that the consumer has no right of withdrawal, in case the consumer does not have this right pursuant to the law, for example in the above situations when it comes to products that spoil quickly or have a limited shelf life.
To meet the first three requirements, you can use the model instructions on withdrawal (modelinstructies bij herroeping) that are given as an example in the European Directive. However, you are not required to use these model instructions. You can provide this information in any other way. However, the model withdrawal form (mentioned above under point 4) must be provided to the consumer. Penalties When you do not inform the consumer, or inform him insufficiently, this could have the following consequences:
  • if the consumer is not or insufficiently informed about delivery costs and the costs returning the goods in case of a withdrawal, those costs will be at your expense;
  • if the consumer is not or insufficiently informed about the right of withdrawal, or in case the model withdrawal form is not provided, the consumer's time to consider his purchase will be extended until the moment the requirements are fulfilled. The consumer's time to consider his purchase can amount up to 12 months;
  • if you fail to mention that the consumer's order contents a payment obligation, the consumer may annul the agreement and he will not be bound by the agreement.
In addition, supervisor Authority for Consumers and Markets ("Autoriteit Consument en Markt") can take measures and for example impose a fine. Conclusion The new legislation for webshops is of mandatory law, meaning there can not be derogated from this legislation to the detriment of the consumer. In order to comply with the new legislation in due time – that means before June 13, 2014 – you will need to check your webshop, order process and your general terms and conditions and make adjustments if necessary. We are pleased to help you. If you have any questions about the new rules, please contact Floor de Roos or our International Desk attorneys. [post_title] => New legislation for webshops [post_excerpt] => [post_status] => publish [comment_status] => closed [ping_status] => closed [post_password] => [post_name] => new-legislation-for-webshops [to_ping] => [pinged] => [post_modified] => 2016-10-24 15:01:18 [post_modified_gmt] => 2016-10-24 13:01:18 [post_content_filtered] => [post_parent] => 0 [guid] => https://www.boelszanders.nl/en/?post_type=publication&p=5146 [menu_order] => 0 [post_type] => publication [post_mime_type] => [comment_count] => 0 [filter] => raw ) [3] => WP_Post Object ( [ID] => 4854 [post_author] => 2 [post_date] => 2016-10-13 14:21:12 [post_date_gmt] => 2016-10-13 12:21:12 [post_content] => Within the European Union (EU), on a regular basis, employers use posted workers to complete assignments or perform work in other countries than the worker's home country. In order to regulate such cross border assignments of posted workers, the EU has created a directive that provides rules and regulations for the posting of workers with the purpose of providing services within another EU country. On July 18th of this year The Netherlands adopted a new law (the Employment Conditions of Posted Workers win the European Union Act or Wet arbeidsvoorwaarden gedetacheerde werknemers in de Europese Unie, or, WAGWEU). This new law regulates the implementation of the above described EU directive  and has replaced the former Employment Conditions Cross Border Work Act (Wet arbeidsvoorwaarden grensoverschrijdende arbeid or Waga). Below you will find the new rules which EU employers will have to take into account when posting workers in the Netherlands. Specific Dutch employment law regulations have been declared to be applicable to the employee who – as a result of cross border assignment – is temporarily performing work in the Netherlands and whose employment agreement is governed by a law other than Dutch law. It concerns regulations with regard to wages, such as the chain of liability of payment of wages. In addition, rules apply regarding the employer's information obligation, duty of care and employer liability. The above described new law also determines that the Dutch Labour Inspectorate (Inspectie SZW) is entitled to collect and process data with regard to posted workers and service suppliers. Such data will be used to determine whether other laws, such as the Foreign Workers Act (Wet Arbeid Vreemdelingen) and the Employment Conditions Act (Arbeidsomstandighedenwet), have been complied with. Employers are obligated to provide the Labour Inspectorate with the above described data and information. Such information is used to determine whether a company carries out substantial activities with regard to assigning workers (from) abroad and whether the posted worker is performing work in The Netherlands. In order to facilitate the Labour Inspectorate in the collection of said data, the employer has to appoint a contact, to be available to the Labour Inspectorate for sending and receiving information with regard to the posting of workers. During the period that the employee is posted abroad, the 'host-employer' also has to make sure that certain documents are available at the employee's place of work. Such documents include the employee's employment agreement and an overview of the number of hours that the posted worker actually worked. The above described law also determines that certain stipulations provided by generally binding Collective Bargaining Agreement (CBA) clauses, may also apply to workers posted (from) abroad. Last but not least, the law provides that the law determines that the so-called chain regulation (allowing for a maximum of three fixed term employment agreements within a period of a maximum of 24 months) can be reduced to a maximum of three months (by CBA or authorized governing body) for certain positions that, as a result of climatological or natural circumstances, can only be fulfilled for a maximum of nine months a year. Non-compliance with the law is penalised with an administrative penalty, imposed by the Labour Inspectorate. The maximum penalty amount is EUR 20.500. Recurrence will increase the penalty with 100 percent. Recurrence of a serious offence will result in a penalty increase 200 percent. On March 8th, 2016 the European Commission announces that it would be implementing further amendments tot he Posted Workers Directive. The most important amendments will be with regard to the wages of the posted worker as well as the stipulation that if a worker is posted abroad for more than 24 months, the employment laws of the host member state will apply to the worker. Would you like to receive more information or personal advice? Please contact one of our International Desk members or employment law specialists. They will be happy to help. [post_title] => Cross border assignment of posted workers [post_excerpt] => [post_status] => publish [comment_status] => closed [ping_status] => closed [post_password] => [post_name] => cross-border-assignment-of-posted-workers [to_ping] => [pinged] => [post_modified] => 2020-02-26 17:17:16 [post_modified_gmt] => 2020-02-26 16:17:16 [post_content_filtered] => [post_parent] => 0 [guid] => https://www.boelszanders.nl/en/?post_type=publication&p=4854 [menu_order] => 0 [post_type] => publication [post_mime_type] => [comment_count] => 0 [filter] => raw ) [4] => WP_Post Object ( [ID] => 5510 [post_author] => 2 [post_date] => 2016-12-01 10:03:02 [post_date_gmt] => 2016-12-01 09:03:02 [post_content] => Normally speaking, when an employee becomes ill and as a consequence of such illness he or she is absent from work, a lot of (medical) information is exchanged between the employer, the employee, the company doctor and the UWV. However, the law provides that not all information is allowed to be collected, exchanged, saved or stored. So, what is and what isn't allowed? In February of this year the Personal Data Authority (Autoriteit Persoonsgegevens) published its policy with regard to the processing of personal data regarding the health of sick employees. Below you will find a summary of the most important rules and regulations that employers have to take into account when processing the personal data of sick employees. Reporting in sick Question: If your employee calls in sick, are you allowed to ask him or her what is wrong? The answer tot his question is 'yes'.  When an employee calls in sick, as an employer, you are allowed to ask what the cause for reporting sick. However, the employee is allowed to refuse to provide you with information with regard to anything relating to his or her medical condition. The applicable basic principle for reporting sick – with regard to the payment of salary during illness and the reintegration of the employee – is all parties involved are only allowed to have access to necessary information. Medical information is not relevant for establishing the employer's obligation to pay the employee's salary or to ascertain what the employee's abilities are with regard to reintegration. In order to establish whether an employer is obliged to pay the employee's salary during illness, the employer only has to know whether the employee is truly ill or disabled. For reintegration it is only relevant to ascertain what the employee's capabilities are with regard to performing his or her work and what the prognosis is for recovery. Medical information is not relevant. If the employee tells the employer why he or she is ill at his or her own initiative, then there no objections to that. However, the employer is not at liberty to do as it pleases with such information, or to save or store it. In order to be able to take such actions, the employer requires the employee's explicit permission. In short, the employer has to tread carefully when provided with medical information by and with regard tot he employer. Recording absenteeism and the company doctor Is the employer permitted to record details regarding the employee's illness in an absenteeism record system? The answer to this question is no. The employer is not allowed to record details with regard to the employee's illness and most certainly not if such details can be linked directly to an individual. Collecting information with regard to absenteeism anonymously is allowed. The company doctor is allowed to collect medical information but is he allowed to share such information with the employer? The answer to this question is also no. The company doctor has doctor-patient confidentiality to adhere to and is not permitted to share any medical information with the employer. The company doctor is also the only party in the sickness process that is entitled to collect and save medical information. The employee's medical file will remain under the control and management of the company doctor. Personnel file Is the employer allowed to save and keep medical information in the employee's personnel file? In principle the answer tot his question is no. The personnel file should only contain medical information if such is absolutely necessary. If a certain medical condition (such as diabetes or epilepsy) could potentially be dangerous for the employee, then medical information related to such a condition, could be necessary for possible medical assistance. In those exceptional circumstances, medical information may be kept on file, with the employee's permission. What to keep after recovery Is the employer permitted to save and keep the information with regard to the employee's absence, after the employee has recovered? That depends. The administrative details, such as the commencement date of illness, the duration of the illness and the date of recovery, can be saved as long as is necessary for the purpose for which they were collected. The maximum duration is two years after the employee has left employment. In principle, the reintegration file has to be closed and destroyed after recovery. If the employer anticipates that there may be a recurrence of the illness then the reintegration file may be kept a while longer. Any arrangements included in the reintegration file, which could be relevant fort he performance of the employee's work, such as work place adjustments or adaptations, may be included in the personnel file. In short: Which specific details are you allowed to request and record?
  • The employee's telephone number and (nursing) address;
  • The expected duration of the employee's absence;
  • Information regarding any outstanding work or appointments;
  • Whether the illness is related to an accident at work;
  • Whether the illness is related to a car accident for which a possible third party is responsible (possibility of recourse);
  • Whether the employee is eligible for any of the safety net provisions of the Sickness Benefits Act (Ziektewet), but not which specific safety net provisions.
More information Would you like to receive more information or personal advice? Please contact one of our International Desk members or employment law specialists. They will be happy to help. [post_title] => The sick employee's privacy [post_excerpt] => [post_status] => publish [comment_status] => closed [ping_status] => closed [post_password] => [post_name] => the-sick-employees-privacy [to_ping] => [pinged] => [post_modified] => 2016-12-01 10:03:02 [post_modified_gmt] => 2016-12-01 09:03:02 [post_content_filtered] => [post_parent] => 0 [guid] => https://www.boelszanders.nl/en/?post_type=publication&p=5510 [menu_order] => 0 [post_type] => publication [post_mime_type] => [comment_count] => 0 [filter] => raw ) )
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