Dutch labour law is complex and changes constantly. This is challenging for employers, as it requires a sharp and forward-thinking approach. La Gro is forward-thinking and actively informs its relations about developments regarding labour law with the aim to fully unburden you, so that your business can remain your top priority. La Gro regularly shares insights in various legal fields, because we believe that this is the key to growth. This quarterly report aims to give a brief overview of important labour law developments in the last quarter. It also looks ahead to developments that may require action from employers. If you would like to receive the quarterly report automatically via email fill out the form below.  Legislative developments Further regulation of non-compete clauses expected A legislative proposal outlines the way in which the use of non-compete clauses might soon be regulated. The internet consultation phase for this proposal has now been completed. The proposal is expected to significantly change the agreement and enforcement of non-compete clauses in new employment contracts. Click here for more information on this topic. Newly proposed rules with regard to transfer of employees in the event of bankruptcy A new legislative proposal regulates the transfer of employees when a bankrupt company is taken over. The proposal leaves room for an objective and transparent method of partial transfer of employees due to business economic reasons and regulates non-competes and the consultation of employees  in such transfers.  Click here for more information on this topic. Proposed mourning leave Coinciding with a broader intention to reshape special leave legislation, a separate legislative proposal aims to introduce an entirely new form of leave: mourning leave. This form of leave would extend the current leave  between passing and funeral and would set a minimum standard of five days in case of loss of partner or minor child.  Click here for more information on this topic. Case law developments Clarification of Xella case law If a long-term sick employee whose employment contract can be lawfully terminated so requests, the employer must cooperate with the termination of the employment agreement, except in exceptional cases. The Supreme Court now clarifies the way in which the existence of such an exception must be assessed. You can read more about this ruling here. Relationship clause violates Waadi  In a recent ruling, the Court of Appeal in Den Bosch has declared an employee’s relationship clause null and void after the work was found to be temporary agency work. The ruling contains important lessons about temporary agency work, relationship clauses and the effect of European law on labour contracts.  To learn more, click here.    Sick pay does not require a sickness notification by the employee  After an employer can reasonably know that an employee is sick, the correct actions must be taken. Any (unintentional) violation of legal obligations can cost an employer dearly. Recently, the Court of Appeals in The Hague assessed whether calling-in sick is relevant with regards to those obligations. Read more about this ruling here.  Labour market developments Labour shortage remains   The Dutch labour market remains in a shortage, but labour market tension eased slightly in Q1 of 2024. The ratio of job vacancies for every 100 unemployed fell to 110, compared to 114 vacancies in Q4 of 2023. Unemployment rose slightly to 3,7%. Increase of wages at the start of Q3 Many employees will see their wages increase per 1 July 2024. Many collective labour agreements stipulate such increases. On the same day, the statutory minimum wage for all employees will also increase by 3,08%. Employers will need to update their salary administration where necessary. For more information on the correct payment of (minimum) wages, click here. Effects of the coalition agreement 177 days after the general elections, four political parties have reached a coalition agreement. The main proposals with regards to the labour market are: lower taxes on labour, more commitment to permanent contracts, reduction of the maximum unemployment benefit to 18 months, continuation of major pending legislative proposals (including the Vbar, the Wtta and the modernisation of the compete clauses) and limitation of compensation of transition payments to small employers. The coalition agreement contains no proposals to change the dismissal system. How can La Gro be of assistance?  The second quarter of 2024 brings many new developments in the field of employment law but also other areas of Dutch law. Are you curious about what recent developments mean for your organisation? Do you have a pressing matter within your organisation? With extensive knowledge in eighteen areas of law, La Gro is perfectly positioned to assist in a broad spectrum of legal challenges within you business. Please feel free to contact any of our experts to inquire about the possibilities. We would be more than happy to assist you.

On May 2nd 2023 the Digital Markets Act (DMA)[1] entered into force. This European Regulation aims to ensure healthy and fair competition on the digital markets in the EU by imposing a set of rules and obligations on so-called ‘’Gatekeepers’’. Gatekeepers are big digital platforms which provide so-called core platform services, such as online search engines or app stores, and which possess significant power on the market. To prevent these gatekeepers from obstructing their competitors with their market power, the gatekeepers are bound to comply with the rules and obligations set out in the DMA. The DMA is part of the EU’s Digital Services Act Package and touches upon several competition and privacy law aspects. The first draft of the DMA has been published in 2021, together with the first draft of the Digital Services Act (DSA). The DMA is supposed to contribute to fairer and more contestable digital markets, together with the DSA, the GDPR and the AI Act. In this blogpost, we will set out the rules and obligations imposed on gatekeepers by the DMA, and will elaborate on how the DMA can be used by (smaller) competitors in order to prevent unfair competitive behaviour from gatekeepers on digital markets. Who are gatekeepers? Gatekeepers within the meaning of the DMA, are undertakings that provide core platform services and which fulfil the following three (cumulative) criteria: The undertaking has a size that impacts the internal market. The undertaking controls a major gateway for business users to end-users. The undertaking has an entrenched and durable position. The DMA also prescribes a list of core platform services, including online brokering services, online search engines, online social networking services and web browsers. If the above criteria are met, then the European Commission can formally designate the undertaking as a gatekeeper, meaning that the undertaking must comply with the DMA’s obligations. Currently, seven undertakings with a total of 24 services have been designated as gatekeepers under the DMA by the European Commission. They are Alphabet (including Google Search, YouTube), Amazon, Apple (including Appstore), Booking (Booking.com), ByteDance (TikTok), Meta (including Facebook, Whatsapp) and Microsoft (including Windows, LinkedIn).[2] Obligations and prohibitions for gatekeepers The DMA contains a comprehensive list of practices of gatekeepers considered unfair, and prescribes various obligations to gatekeepers. Gatekeepers are required to comply with these obligations within six months of the designation decision. For the initial six gatekeepers, the six-month deadline expired on 6 March 2024. Booking was designated as a gatekeeper later, and still has until 13 November 2024 to become fully DMA-compliant. A few examples of obligations imposed on gatekeepers by the DMA are the following: Enabling third parties to cooperate with the gatekeeper’s own services in certain specific situations; Providing business users with access to data on the knowledge platform that these users generate themselves; Providing advertisers and publishers using the gatekeeper’s platform with the necessary tools and information to analyse ads themselves on the gatekeeper’s platform; Enabling business users to promote their offerings on the gatekeepers platform and enter into contracts with customers outside the platform. On top of these obligations, the DMA prohibits certain behaviours performed by gatekeepers, such as: Rank own services and products on the platform higher or more favourably than comparable third-party products or services; Prohibiting consumers from contacting companies outside the platform; Preventing users from uninstalling automatically installed software or apps; Tracking end users outside the core platform gatekeeper service for the purpose of targeted advertising, without effective consent. Processing of personal data The DMA also affects the way gatekeepers process personal data. The DMA includes a number of obligations for gatekeepers aimed at protecting users’ privacy. These obligations ensure that gatekeepers do not abuse their (dominant) position by combining data of users collected in different services for commercial purposes. These are the following obligations: The gatekeeper may not process personal data of end users using third-party services through core platform services for the purpose of offering online advertising services; Personal data of the core platform service may not be combined with personal data of other core platform services, other gatekeeper services, or third-party services; Personal data from the core platform service may not be used in other separate gatekeeper services, including other core platform services, and vice versa; End users may not be automatically logged into other gatekeeper services for the purpose of combining personal data. European Commission investigations The European Commission has the power to investigate gatekeepers’ compliance with the DMA. It has now launched several such investigations. For example, Apple is the subject of three different non-compliance investigations. As part of one of these investigations, the European Commission published preliminary findings on 24 June 2024, stating that Apple’s steering rules used in the Apple App Store violate the DMA. Apple currently uses three types of business terms in the App Store under which app developers are not free to redirect their customers to alternative and/or cheaper distribution channels. For example, developers cannot provide pricing information within the app or otherwise communicate with their customers to promote offers available on alternative distribution channels. This, in the European Commission’s preliminary view, constitutes a violation of the DMA. Apple now has the opportunity to defend itself before the Commission will make final decisions regarding any non-compliance and potential penalties.[3] Non-compliance with the DMA If the European Commission’s investigation proves that a gatekeeper does not comply with the obligations set out in the DMA, the European Commission may impose penalties on the specific gatekeeper. The European Commission can impose fines on the platform of up to 10% of its total annual worldwide turnover or up to 20% in case of repeated infringements. The European Commission may also decide to impose a periodic financial penalty of up to 5% of the average daily turnover. Finally, additional measures may also be imposed in case of systematic violations of the DMA, which may go as far as an order to change the behaviour or structure of the platform concerned. Enforcement Compliance with the DMA is in principle enforced by the European Commission. However, there are several tools for market players/competitors who are hindered by gatekeeper’s behaviour, which can be used to initiate or encourage enforcement and/or compliance. First of all, complaints can be submitted to national competition authorities, such as the Authority Consumer and Market (ACM) in the Netherlands. These competition authorities are designated national regulators and have powers to launch investigations into gatekeeper designation of undertakings, or into conduct of already designated gatekeepers. In addition, competitors or other aggrieved parties can go directly to court to enforce compliance with the DMA or claim damages after a violation of the DMA has been established. This can be done, inter alia, in mass tort claims. Facing challenges with gatekeepers? Is your enterprise facing market obstructions relating to the dominant position of gatekeepers? Are your interests as a competitor and/or consumer being harmed by their actions? We can help you strategize to counteract these unfair practices and seek compensation for any damages incurred. Would you like to know more about the DMA? Feel free to contact Monika Beck, Jiahui Plomp or one of our other specialists. [1] Regulation (EU) 2022/1925 of the European Parliament and of the Council of 14 September 2022 on contestable and fair markets in the digital sector and amending Directives (EU) 2019/1937 and (EU) 2020/1828 (Digital Markets Act) (OJ 2022, L 265/1). [2] For an up-to-date overview of designated gatekeepers reference is made to the website of the European Commission ‘’Gatekeepers’’ [https://digital-markets-act.ec.europa.eu/gatekeepers_en]. [3] More information regarding the investigation can be accessed on European Commission, Press Release: Commission sends preliminary findings to Apple and opens additional non-compliance investigation against Apple under the Digital Markets Act, 24 June 2024 [https://ec.europa.eu/commission/presscorner/detail/en/ip_24_3433]

In the Netherlands, the minimum wage is regulated by the Minimum Wage and Minimum Holiday Allowance Act (“WML”). This does not cover employees working outside the Netherlands, unless they live in the Netherlands and their employer is also based here. Workers under 21 years of age are eligible for a percentage of the adult minimum wage and no minimum wage applies to workers under 18 years of age.  Until 1 January 2024, a monthly minimum wage applied (based on a maximum of 40 hours per week). As a result, the minimum wage per hour varied per sector because  in different sectors varying weekly work hours apply. From 1 January 2024, minimum wage is calculated by the hour. This makes abuse of authority and underpayment more apparent. The new minimum hourly wage is based on a 36-hour work week. Employees who work(ed) 40 hours a week therefore saw an additional increase in their minimum wage on a monthly basis, although it remains possible to compensate extra work hours with paid time off, provided this is covered in the collective bargaining agreement and agreed to in writing.  The minimum wage is a gross sum adjusted on 1 January and 1 July each year, usually according to the percentage change in contract wages in different sectors. After sharp increases in 2023, the minimum wage was increased with another 3.75% on 1 January 2024.  Many employees will see their wages rise again per 1 July 2024. Collective bargaining agreements usually provide for such increases, and not just for employees earning the minimum wage. But also for employees without a collective bargaining agreement, the legal minimum wage will increase by 3.08%.   Employers will therefore need to adjust their payroll where necessary to meet the new statutory minimum wages. In doing so, they must take into account the correct calculation of the minimum wage. Only certain (purely financial) wage components count toward the calculation of the minimum wage; income in kind and certain financial income components, such as vacation allowances and year-end bonuses, do not count. Furthermore, necessary expenses related to the employment may not be charged to the employee if this brings the wage below the minimum.   Employees that work more than the stipulated amount of hours (for example, 40 hours while the collective bargaining agreement requires 36 hours), will have to be compensated by their employers.   Improper payment of (minimum) wages can have financial consequences for employers. If an employee has received too little wages, he can claim the difference for up to five years after the fact. That includes salary payments below minimum wage. Such late salary payments may also be subject to a statutory increase, which can amount to 50% of the original salary amount. Furthermore, the Dutch Labor Inspectorate (Nederlandse Arbeidsinspectie) can impose administrative fines for non-compliance and in certain cases even shut down operations for three months in case of non-compliance with the WML.   How can La Gro be of assistance?  Do you have a question about (minimum) wage payment in the Netherlands? Are you confronted with a wage claim? Do you have a different question? Expertise in 18 legal fields enables La Gro to offer broad legal assistance. Feel free to contact Gerard Zuidgeest or one of my specialist colleagues.