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Article 7:653a of the Civil Code dictates that an employer may not prohibit or restrict an employee from performing ancillary activities  unless there is an objective reason for doing so. How does this clause work in practice, specifically when an employee is sick?    The effect of the ancillary activities clause  Ancillary activities are activities that an employee performs outside of his work. In principle, ancillary activities are permitted. In practice, the clause often includes the condition that an employee may only perform ancillary activities with the prior consent of the employer.  The employer may only refuse such consent if he has an objective justification. Examples of such an objective justification included in the law are:  the health and safety of the employee;  the protection of confidentiality of company information;  the integrity of public services;  the avoidance of conflicts of interest; and  the violation of a legal requirement.   The employer does not have to include the objective reason in the employment contract but must provide it when invoking the agreed-upon clause.  Performing ancillary activities during illness  Suppose an employee is sick and the employer finds out that this employee is performing ancillary activities. How does a judge rule in such a situation? In a case before the District Court of The Hague, an employee of the municipality of Amsterdam reports in sick. This employee is receiving  benefits due to occupational disability of 80-100%.   In July 2022, this employee reports in sick for her reintegration work due to a corona infection. The employer submits a termination request to the Netherlands Employees Insurance Agency (UWV) due to  long-term disability, but it is rejected because recovery is considered possible within 26 weeks. In October 2023, the employer again applies for a dismissal permit, which is then rejected because it turns out that the employee has been performing similar work at the Municipality of Rotterdam. An integrity investigation follows which shows that the employee has been working 24 hours a week at the Municipality of Rotterdam , which she did not report as stated in the absence protocol and code of conduct of the Municipality of Amsterdam. The Subdistrict Court ruled that the employee had violated Section 8 of the Civil Servants Act, which constitutes a breach of contract. The employee should have reported her intention to enter the service of the Municipality of Rotterdam. The employee should also explicitly have  asked permission to do so, and should have reported this to the company doctor. What was reported by the company doctor cannot be interpreted in any other way than that there was (a degree of) intent on the part of the employee to mislead the company doctor and therefore also the municipality. The overpaid wages must be repaid by the employee (Section 7:629 (5) of the Dutch Civil Code). The employment contract is terminated, without awarding the transitional compensation.  Practical tips for employers  Although the inclusion an ancillary activities clause employee may be important, an employer can also take steps in the situation where no clause is agreed upon but the employee does perform ancillary activities  during illness. The employer has several options depending on the situation. The employer may have grounds to  dismiss the employee either by instant dismissal or through a termination  procedure in court. In the latter case, the employer can choose to terminate  the employment contract for breach of contract. The options are highly intertwined with the circumstances of the case; in some cases, the employer has to tolerate that the sick employee also performs work elsewhere.  Contact Would you like to know more about ancillary activities? Feel free to contact Gerard Zuidgeest, Rose Horstman or one of our other specialists in employment law. Do you have another question? With expertise in eighteen areas of law, La Gro is happy to assist  you.

It is often assumed that Dutch employment law requires an employer to initiate a mediation process before an employment contract can be terminated  on the grounds of irreconcilable differences in the employment relationship (the g-ground).  Such a requirement is based on  case law, where mediation is often deemed necessary as an effort that can be expected of an employer in order to restore the relationship. But is mediation always mandatory, or can the employer in some cases make a plausible case that there is no longer any point in initiating mediation?  The Court of Appeal of Den Bosch recently ruled that in that specific case an attempt at mediation was not  necessary. The case in question involved a small organisation with only six employees. The employee had been hired as a driver, with the prospect of becoming a shareholder. However, it soon became apparent that this partnership would not succeed. The employee had scolded his supervisor stating he was a  “bad manager” and the employee had been working under the influence of drugs. The employee claimed that his behavior stemmed from a lack of recognition, while the employer proposed a personal improvement plan. The employee refused to cooperate with this plan. He had also called in sick; the company doctor recommended mediation. Eventually, the employer proposed a settlement agreement to end the employment agreement, but an agreement could  not be reached.   The employer petitioned the subdistrict court to terminate  the employment contract because of a disrupted working relationship. The employee argued that the elements to terminate the employment agreement due to irreconcilable differences (g-ground) was not sufficient because no mediation had taken place, despite the company doctor’s advice.  The appellate court ruled that mediation was  not mandatory in this situation. The appellate court ruled that the relationship between the parties had hardened to such an extent that mediation had no chance of success. The size of the organisation also played a role: with only six employees, re-employment or avoidance of contact between the parties was impossible. The court emphasized that an employer is not obliged to start a mediation process “against his better judgment,” even if the company doctor advises it. According to the court, the company doctor’s advice in this case was a standard response, without knowledge of the actual gravity of the situation.  Practical implications   This ruling seems to be an exception to the general line in case law, where mediation is often seen as necessary. Especially if the company doctor advises mediation, since an employer will want to avoid being blamed for ignoring the advice of the company doctor in the context of illness.  At the same time, this case is quite common in  practice. In many cases it is quite clear that an employment relationship has been disrupted to such an extent that recovery seems out of the question. This ruling  may well set a precedent for smaller employers. However, it remains important to consider whether mediation can be useful in a particular case. If an employer skips mediation too easily, he runs the risk of a termination request being denied and having to (temporarily) retain the employee in question or to pay a high termination fee.  Do not come to the conclusion too quickly that no mediation needs to take place.    Practical tips for employers  Evaluate the situation carefully: seriously consider whether mediation really does or doesn’t have  a chance of success; it should not be ruled out too quickly; Document well: if mediation is not an option, make sure you can justify and corroborate this, such as with correspondence or statements about the seriousness of the situation.  Smaller organisations:  an additional argument for skipping mediation may be found in the fact that contact between severing quarreling colleagues cannot be prevented due to the size of the organization. In larger organizations, however, transfer will often be a possible outcome and thus mediation will more often be an obligation to which the employer must cooperate.  Company doctor’s advice: while the advice of a company doctor to start mediation is important, an employer does not always have to blindly go along with it if it is clear that the prospects of reconciliation are highly unlikely.  How can La Gro be of assistance?  Feel free to contact Gerard Zuidgeest, Jaap Harrijvan or one of our other specialists in employment law. Do you have another question? With expertise in eighteen areas of law, La Gro is happy to assist  you.

Most employment contracts include a confidentiality clause. Under such a clause, the employee is obliged to keep sensitive company information confidential. It may happen that an employee downloads confidential and sensitive data, for example on his private laptop or phone. This could have major consequences for the employee.  Case Law  In a recent case before the District Court of Gelderland, both a confidentiality clause and a penalty clause had been agreed upon in the employee’s employment contract. The employer had informed the employee that he was dissatisfied with the employee’s performance and intended to terminate the employment relationship. A few days after the employer presented the employee with a settlement agreement, the employer received a security alert from Microsoft due to suspicious activity on the employee’s account.   When questioning the employee regarding the suspicious activities, it appeared that the employee had downloaded company files on his private laptop. The employee feared being excluded from access to his work environment and therefore could not defend himself against the alleged underperformance at work. However, the employee had downloaded a significant amount of files including reports from the company physician and performance of other staff members subordinate to employee.  The judge ruled that downloading all of this company-sensitive information was culpable. The employee thereby seriously damaged the employer’s trust. However, the high bar of serious culpability was not met because, in the judge’s opinion, the employee did not act intentionally to harm the employer.   In a recent similar case before the Court of Appeal in The Hague, an employee had also downloaded confidential and sensitive company information for the purpose of his defense at the the Netherlands Employees Insurance Agency (UWV). In this case it was not established whether the employee had only downloaded information which he could use for the procedure or also other (confidential) documents. The immediate dismissal by the employer was upheld.  Practical tips for employers  As an employer, it is wise to check whether an employee has downloaded information in the context of a dismissal case. Because the verification should not violate the General data protection regulation (AVG), it is good to have a policy in place when certain information may be checked. Sending confidential information can constitute  a violation of the confidentiality clause. If the employment contract includes a penalty clause for this circumstance, the employer can impose a fine on the employee.  It is wise to design the confidentiality clause so that even sending company information to employees’ own accounts counts as a violation.  Can La Gro be of assistance?   Do you have a question about confidentiality and protecting company information? Feel free to contact Gerard Zuidgeest, Rose Horstman or one of our other specialists in employment law. Do you have another question? With expertise in eighteen areas of law, La Gro is happy to assist  you.

On 19 December 2024, the Dutch Consumer & Market Authority (“ACM“) announced that it has clarified and updated the merger notification process (link in Dutch only). A concentration is a merger, an acquisition or the creation of a joint venture. Background Under Dutch competition law, companies must report a merger, acquisition or joint venture to the ACM if they meet the following two conditions: (i) the companies merging have a combined annual turnover of EUR 150 million or more worldwide and (ii) at least two of the merging companies each have an annual turnover of €30 million or more in the Netherlands This notification takes place by submitting a notification form. In this form, the parties to the transaction provide details (for example) of the parties and their activities, the markets in which they operate and what position the parties occupy in these markets after the transaction (and whether this is problematic or not). The notification to the ACM is separate from a notification to, for example, the Dutch Healthcare Authority (NZa) or the Investment Screening Bureau (“BTI“). Regarding a notification to the BTI under the Vifo Act, see our previous blog (link). Current practice Currently, it was already common practice to (informally) contact the ACM to announce a notification in advance. Often, the opportunity was then also immediately taken by (an authorised representative of) parties to provide (summary) information about the notification, such as information about the parties, (the lack of) overlap in terms of parties’ activities and the type of transaction. This contact moment could especially benefit the speed of non-problematic reports (on the condition that sufficient information was provided beforehand). New practice The ACM has now made this notice mandatory for every notification and formalised it through an intake form on its website (link in Dutch only). This intake form must be completed “about a week” before the official notification. By doing so, companies already provide relevant information to the ACM, for instance on the type of transaction and on the activities of the companies involved A practical addition is also that parties can indicate in advance if they cannot answer certain questions in the notification form. For example, it often happens that parties do not have direct contact details of their competitors in the market, while the ACM should receive this information according to the notification form. In our experience in the past the ACM was not very strict in answering this question for non-problematic notifications. In that case, parties usually received an (implicit) waiver to provide this information. From now on, the ACM will explicitly contact parties to reject or grant the request to leave questions unanswered. Finally, the ACM has taken the opportunity to bring the notification form more in line with the European Commission’s notification form. For instance, the ACM now requires parties in the notification form to prepare a summary for the Official Gazette and NACE codes (i.e., activity codes of a company link) must be included. The European Commission requests similar information in its own notification form. Analysis We welcome these developments. This is the latest step in a longer-running process by the ACM to simplify the notification process. At the same time, this reduces the burden on companies during the notification process. This process started several years back with the possibility of submitting a notification to the ACM digitally. It has now led to an intake form on its website. Especially for those notifications where the ACM already immediately sees no problems (e.g. because the parties to the transaction have no overlap in their activities), these measures are expected to lead to faster turnaround times. At the same time, this gives the ACM more room for those notifications that seem more problematic. Questions Do you have any questions on this topic? Or do you need support as a company with a notification to the ACM? If so, please feel free to contact Arnout Koeman or one of our other specialists.

In November, we wrote a blog on pseudo self-employment and the lifting of the Dutch tax authority’s enforcement moratorium from 1 January 2025 onwards. The article provided a step-by-step plan for identifying collaborations with self-employed people and adjusting them where necessary and possible. The aim of all this was to avoid abusive employment relationships (as much as possible) and to be prepared for the Dutch tax authority’s doubling down on enforcement regarding pseudo self-employment. On 18 December 2024, the State Secretary for Finance further informed the Lower House about the enforcement plans for 2025. In addition, the Dutch tax authority has published its Enforcement Plan for labour relations 2025 . The conclusion is that a number of mitigating measures have been taken, softening the blow from enforcement in 2025. In brief, these measures are as follows. No fines from pseudo self-employment enforcement The main update is that in 2025, the Dutch tax authority will impose no fines whatsoever on employers who continue to work with self-employed workers on a pseudo self-employment basis. This applies to both default penalties and punitive fines (unless malicious intent is involved). It was already known that no punitive fines would be imposed; so what is new is that no default penalties will follow. However, more relaxed measures have been announced to give companies and organisations more time to adjust their operations. Soft landing for pseudo self-employment enforcement The Dutch tax authority has further announced the following relaxations in its enforcement plans: To begin with, ‘in principle’, there will be a company visit and thus ‘in principle’ not an inspection of the accounts (audit). In this way, the Dutch tax authority is responding to the request of the Lower House to be able to warn organisations before account inspections are initiated. A company visit is not a mandatory gateway, but it does offer the possibility of an initial warning. A warning is obviously less severe than enforcement, which will follow if something is found to be wrong during a company visit. When and which choice will be made for the type of visit is not yet entirely clear; there will be further guidance on this, expected during January 2025; There is a possibility of pre-consultation with the Dutch tax authority, which can be requested via a digital application form. This makes sense if an organisation works with many self-employed people and to this end has developed a working method that properly ensures effective self-employment[1]; All currently existing approved model agreements will be automatically extended until 31 December 2029. This means that if the model agreement is strictly followed in practice, it should provide assurance that there is no pseudo self-employment. Of course, the trick remains to organise things on the shop floor in such a way that the self-employed worker actually determines his or her own work and there is no question of employer authority. Enforcement in 2025 The measures announced by the Dutch tax authority may reduce the sense of urgency to adjust business operations with self-employed workers. However, despite the soft landing, which is certainly in place, as far as we are concerned, organisations would do well to make a start in 2025. Now is the time to develop a new and future-proof method of managing and embedding self-employed workers at clients’ workplaces. Full enforcement will actually begin in 2026, meaning the reimposition of fines. Contact We are aware that many of our clients will be affected by Dutch tax authority enforcement. Within our team, Angela van der Does-Mekes and Gerard Zuidgeest deal with this topic on a daily basis. Do you also have questions and want to exchange views on whether the self-employed workers you hire are not actually employed? Then please contact either of these, or one of our other specialists. The Dutch tax authority is again taking pseudo self-employment enforcement measures. La Gro – keeping you informed of the latest updates, including that no fines will follow in 2025.

Introduction  All over Europe, people perform work through digital work platforms. In the European Union, it is estimated that there will be about 43 million platform workers in 2025. Through a platform, services are offered through an application or website. These services are performed by working people (platform workers). In 2022 there were 28 million platform workers which means there has been a significant growth in this market. When platforms operate in different member states or across borders, it is often unclear by whom the platform work is performed, especially when it comes to online platform work.  To bring more clarity, the European Platform Work Directive was published on Oct. 2, 2024. The European Union wanted to provide minimum rights for platform workers and rules for better protection of the personal data of individuals who perform platform work. With this directive, the European Union also wants to improve the transparency of platform work, including in cross-border situations.   Privacy Aspects Directive Platform Work  Digital work platforms use algorithms such as computerized monitoring systems and automated decision-making systems, for tasks that were previously generally performed by managers. These include, for example, assigning tasks, pricing individual jobs, determining working hours, giving instructions, evaluating work performed, stimulating incentives or applying adverse treatment. The algorithms have a great impact on the worker, while the worker often does not have access to information about how the algorithms work, what personal data are used, or how their behaviour affects the decisions made by the systems. The Platform Work Directive therefore sets rules regarding the use of algorithms by digital work platforms.  Platforms will first have to provide clear information on the use of automated systems and how these systems work. In addition, the directive sets limits on the type of data that may be processed by automated systems: no personal data on emotional or psychological state, no data relating to private conversations, no data to predict (possible) union activity, no data to infer racial or ethnic origin, migration status, political opinions, religious beliefs or health status, and no biometric data. Finally, human oversight of automated systems will be mandatory.  Employment law aspects Platform Work Directive  Pseudo self-employment Currently, most platform workers are formally self-employed. As recent case law shows, they may in fact have an employment relationship and therefore should enjoy the employment rights and social protection afforded to workers under national and EU law. Read our blog on pseudo self-employment here. However, Member States approach platform work differently.   Legal presumption for employees One of the goals of the Platform Work Directive is to make it easier to correctly determine the employment status of platform workers. Article 5 of the Platform Work Directive therefore includes a legal presumption. A platform worker is presumed to be an employee when there are actual indications of “control and direction”. In such a situation, a worker can suffice with the assertion that he is in fact an employee. The platform must disprove this assertion, which means that it is up to the platform to prove that there is no employment relationship.  Safety and health of platform workers The Platform Work Directive also stipulates that Platforms must take the necessary measures to guarantee the safety and health of platform workers. This may include taking measures to combat violence and (sexual) harassment. Furthermore, Article 17 introduces an obligation to report so that Platforms are registered by formal authorities. For example, the platform will report the number of people that perform platform work, the applicable general conditions, the income level and the average duration of the deployment.  Implications for practice  Platform work will from now on be regulated by European legislation. Member States have two years to implement the Directive. At this time there is no concrete legislative proposal. When developments occur within the framework of this Directive, we will inform you.  It is wise for platforms to look ahead and prepare for these future rules. As a result of implementation of the Directive, platform workers may be classified as employees sooner. In addition, platforms may need to adjust their processes regarding the use of algorithms and automated systems.   Contact  Do you have questions about protecting personal data in the context of platform employment? Or do you have questions about the employment law aspects of platform work? Please contact Frederiek Beuning or a colleague from the Data & Privacy Team or Rose Horstman or a colleague from the Labor Law Team. They will be happy to help you further!  Find the Platform Work Directive here.

On 19 December 2024, Dutch Minister of Economic Affairs Beljaarts officially announced his intention to extend the scope of the Act on Security Screening of Investments, Mergers and Acquisitions (the “Vifo Act“), requiring that the Vifo Act be amended. Background The Vifo Act was introduced to give the Dutch government more control over mergers and acquisitions by – foreign – parties that could potentially affect the national security of the Netherlands. This means that, in certain – sensitive – sectors, a buyer must pre-notify the Investment Review Office (“BTI“) of their intention to acquire or merge with a company. Any transaction may only be executed/completed once the BTI has assessed that there are no national security risks or that any risks are covered by control measures (the standstill obligation). Current scope Under the current Vifo Act, a transaction must be reported to the BTI if the target company operates in one of the following sectors (or is specifically designated in the Vifo Act): Heat transport, nuclear power, Schiphol airport, port of Rotterdam, banking sector, financial market infrastructure, extractable energy or gas storage; Sensitive (or highly sensitive) technology (dual-use products, military goods, quantum technology, photonics technology, semiconductor technology and high assurance products); or Corporate campus operators. This covers a broad list of the largest and most important companies based in the Netherlands, including Schiphol and the port of Rotterdam, but also ASML and nuclear power plant Borssele. Extension to the scope In essence, the legislator wants to extend the scope of the Vifo Act to include more technological sectors. The bill, which is still under consultation, will add biotechnology, AI, advanced materials and nanotechnology, sensor and navigation technology and nuclear technology for medical uses to the scope of the Vifo Act. An example of nuclear technology for medical uses is the nuclear reactor in Petten. This reactor produces isotopes for medical use for a large proportion of cancer patients worldwide. Under the new proposal, the sale of this reactor would also require screening by the BTI. This change in the law could possibly take effect from as early as 1 July 2025.    Any questions? If you have any questions on this topic or your company needs support with a Vifo Act-related notification to the BTI, then please contact Arnout Koeman or one of our other specialists.

Heads-up: there has been an update on this subject. The Dutch Tax authority has taken mitigating measures, softening the blow from enforcement in 2025. As of January 1, 2025, the Dutch tax authority will fully enforce on pseudo self-employment. For every client who works with freelancers and where the freelancer can actually be considered an employee, this enforcement on false self-employment can have major legal and tax consequences. What is pseudo self-employment? Pseudo self-employment means that a contractor is formally regarded as self-employed, but in practice works under circumstances that are more similar to an employment contract. This can be the case, for example, if the contractor works side-by-side with your own employees and has little control over his prices, working hours and the way he should perform the work. With pseudo self-employment, actual independence is often lacking, such as own investments, own acquisition, multiple clients or bearing (financial) entrepreneurial risk. This can lead to disguised employment, where the employment relationship meets the legal characteristics of an employment contract. Risks in pseudo self-employment The tax authorities play an important role in the assessment of pseudo self-employment. They look  whether the criteria for an employment contract are actually met, namely authority, personal work and a (fixed) payment. The agreements you have made with the self-employed person, for example that no employment is intended, are therefore not decisive. If false self-employment is established, the tax authority can hold both the client and the self-employed person liable. This often leads to retroactive levies of payroll tax and social security contributions, as well as possible fines. In addition, the self-employed can successfully claim the rights of an employee, such as dismissal protection and continued payment of wages during illness. For clients, the financial and legal consequences are significant, which emphasizes the importance of carefully assessing the employment relationship. “VBAR” Act The case law surrounding pseudo self-employment has been evolving in recent years. More test criteria are determined and more and more often conclusions are drawn that there is an employment contract, regardless of contracts to the contrary. These developments have led to the legislative bill Verduidelijking Beoordeling Arbeidsrelaties en Rechtsvermoeden (VBAR), which will (possibly) take effect on January first, 2026. Practical consequences Although the VBAR Act is not yet in place, the tax authority is drawing its own plan. As of January first, 2025 the Dutch tax authority will fully enforce on pseudo self-employment. This means that all organizations (companies, but also governments and health care institutions) that employ self-employed workers for work that should actually be done as employees, can expect fines and additional taxes up to a maximum of 5 years back. Relevant to note is that the lifting of the enforcement moratorium has no retroactive effect. The tax authorities will not check for employment relationships that were not properly qualified before January first, 2025 (barring malicious situations). Furthermore, there will be a transition period of one year during which clients will not yet be fined if they demonstrate that they are taking measures against false self-employment. Think for example of processes aimed at reducing the number of abusive self-employed relationships or converting these self-employed relationships into employment. Advice: check your pseudo self-employed As a result of the lifting of the enforcement moratorium, as of January 1 2025, you will be at immediate risk if assignment relationships with self-employed persons in practice contain characteristics of an employment relationship. It is therefore important to take action now and take stock of your collaborations with self-employed persons and adjust them where necessary and possible. We would like to give you a step-by-step plan to check the collaborations and take measures: 1) Make an inventory of all people working for your organization on the basis of a contract of assignment, including positions (core, staff or “company alien”), nature, scope and duration of the assignment and rate agreements; 2) Assess for each self-employed person what contractual arrangements have been made, whether they are being followed, and to what extent the self-employed person is integrated into your organization; 3) Assess the degree of entrepreneurship of the self-employed person, such as what financial risks does he run when performing the assignment and does he work for multiple clients; 4) Act on conclusions, engage with your freelancers and maintain the relationship as self-employed, hire through an agency or reform to employee; 5) Adjust your contracts. You can use current model agreements from the tax authority for now, but be aware that these model agreements are limited in content. Crucial topics such as liability, specifically if it is judged that there is a disguised employment relationship, are missing in them. In view of the new legislation, it is also better not to conclude assignment agreements with self-employed persons for an indefinite period of time. Would you like to know more about the upcoming enforcement by the tax authorities? Expertise in 18 legal fields enables La Gro to offer broad legal assistance. Feel free to contact Angela van der Does-Mekes en Gerard Zuidgeest or one of our other specialist colleagues.   

Introduction The Institute of Directors (IoD) recently published a new version of the Code of Conduct for Directors. The IoD is a British professional organization for company directors, senior business leaders, and entrepreneurs. Established in 1903, it is the longest-running organization for professional leaders in the UK. Approximately 75% of FTSE 100 companies have an IoD member on their board or in a senior management role. The voluntary Code of Conduct is described by the IoD as a practical tool to help directors make “better choices.” It represents a voluntary commitment by directors and their organizations to support and foster a positive organizational culture, ethics, and integrity. This article compares the IoD Code with the Dutch Corporate Governance Code 2022 (NCGC). The comparison focuses solely on relevant governance aspects related to ESG objectives. Comparison Sustainability and ESG (Environmental, Social, Governance) have become critical focus areas in corporate governance. As noted, we compare ESG-related guidelines from the NCGC and the IoD Code of Conduct for Directors 2024 (IoD Code). Both codes provide governance frameworks but approach the subject from different cultural and legal contexts. The NCGC applies to Dutch listed companies and has a “comply or explain” character. The IoD Code, on the other hand, is voluntary for directors and organizations affiliated with the IoD. 1. Sustainable Value Creation The NCGC emphasizes the importance of long-term sustainable value creation (Chapter 1.1). Directors are expected to develop strategies that consider social and environmental impacts, based on “People, Planet, Profit.” It highlights double materiality: how the company influences sustainability and how sustainability influences the company. The IoD Code addresses the principle of Responsible Business. It encourages directors to integrate ethical and sustainable business practices into their decision-making, with explicit attention to broader societal and environmental impacts. Comparison Both codes stress the importance of sustainability, but the NCGC includes more specific requirements, such as mandatory reporting on sustainability effects. The IoD Code is less detailed but strongly focuses on ethical behavior by directors. 2. Risk Management and Governance The NCGC extensively addresses risk management, including identifying ESG-related risks such as climate change and social inequality. Directors are required to implement adequate internal control systems and evaluate them regularly. In the IoD Code, risk management is embedded within broader principles of responsibility and transparency. Directors are encouraged to manage risks responsibly and to avoid prioritizing short-term shareholder profits over long-term resilience. Comparison The NCGC offers more concrete guidelines on managing ESG risks, while the IoD Code emphasizes ethical principles that influence risk management. 3. Stakeholder Engagement The NCGC explicitly requires companies to develop policies for effective dialogue with stakeholders, including the involvement of employees in decision-making. The IoD Code highlights the importance of transparency and open communication with stakeholders, including mechanisms such as speak-up policies to report misconduct. Comparison While both codes value stakeholder engagement, the NCGC places more emphasis on structured and strategic dialogue, whereas the IoD Code focuses more on ethical behavior and transparency. 4. Diversity and Inclusion The NCGC mandates a diversity policy with concrete goals for gender equality and other diversity aspects. In the IoD Code, diversity is addressed under the principle of Fairness. Directors are encouraged to promote inclusive cultures where everyone feels valued. Comparison The NCGC provides stricter and measurable guidelines for diversity, while the IoD Code adopts a broader behavioral approach. Conclusion Both codes emphasize the importance of ESG principles in governance but approach the subject differently. The NCGC offers detailed, legally anchored guidelines focusing on implementation and reporting. The IoD Code, on the other hand, centers on the behavior and ethics of individual directors. Together, these codes provide valuable frameworks to support directors in fostering sustainable and responsible enterprises. If you would like to know more about good governance and ESG, feel free to contact Mathijs Arts or Patrycja Chelmiak.

Governmental authorities can under circumstances grant State aid to undertakings for the provision of Services of General Economic Interest (SGEI). State aid for SGEI is one of the exemptions on the State aid prohibition, which can be applied if all conditions for SGEI aid are met. For aid granted under the Commission’s SGEI Decision, one of these conditions is a bi-annual reporting obligation for the authority granting the aid. In practice, it appears that authorities granting State aid do not always comply with this reporting obligation. In order to raise more awareness for this obligation, we will focus on the reporting obligation (for Dutch decentralised governments) in this blogpost. What is state aid? European State aid law focusses on the protection of competition by preventing governments from unfairly favouring certain undertakings through the State aid prohibition which is laid down in Article 107 of the Treaty on the functioning of the European Union (TFEU). A measure comprises State aid within the meaning of Article 107 TFEU if five cumulative conditions are met: The aid is granted to an undertaking which engages in an economic activity; The aid is granted directly or indirectly through State resources; The aid grants the undertaking an economic benefit which the undertaking would not have obtained under normal market conditions/in absence of State intervention; The aid is selective: it is granted to one or a select group of undertaking(s) or a specific sector/region; The aid distorts or threatens to distort competition by favouring certain undertakings or the production of certain goods and affects trade between Member States. If all five conditions are met, the aid qualifies as State aid within the meaning of Article 107 TFEU, and is in principle prohibited unless approved by the European Commission or unless an exemption applies. For a breach of the State aid prohibition, the form in which the aid is granted is irrelevant; there may be a positive performance from a government, such as a grant, but also the deprivation of costs that an undertaking typically incurs in the normal course of its business can qualify as State aid. State aid for SGEI Some economic activities serve a particular public interest but are unprofitable, meaning that undertakings would rather not carry out these activities. Think of the operation of a bus line on a route with few inhabitants or certain postal services. For such activities, qualifying as SGEI, there are exceptions to the State aid prohibition to ensure that these (mostly unprofitable) public service obligations will be exercised in the public interest. There are generally three types of SGEI aid: SGEI De-minimis Based on this exception, a single undertaking providing an SGEI in one Member State may receive up to €750,000 in aid over a period of three calendar years. SGEI Decision Under this exception, an undertaking can be formally entrusted with the exercise of an SGEI in a designation decision. For exercising this specific SGEI, the undertaking in question can receive up to €15 million per year in SGEI aid, for a maximum period of 10 years, as compensation for exercising the SGEI. There should be no overcompensation. Aid granted under the SGEI Decision must be reported biannually. SGEI Notice This exception applies to compensation for the provision of an SGEI which exceeds the amount of the SGEI Decision (€15 million per year), which is granted for a period longer than 10 years, or which is granted within categories excluded in the SGEI Decision. Such aid must be notified to the European Commission for prior approval. Reporting obligations for State aid under the SGEI Decision A significant part of SGEI State aid granted by decentralised authorities is exempted under the SGEI Decision. This exemption requires that prior to the grant of the aid, the necessary specifications of the aid measure are laid down in a designation decision in which the undertaking concerned is designated the exercise of the specific SGEI. The SGEI Decision however also requires ex post reporting through the bi-annual reporting obligation. Strictly speaking, the Member State is obliged to report to the Commission on the SGEI State aid granted over the period of two years. This reporting obligations comprises amongst others a description of the application of the SGEI Decision, the total amount of aid granted under the SGEI Decision and any difficulties or complaints in relation to aid granted under the Decision. The centralised governments of the Member States do however not possess all the relevant information relating to SGEI State aid granted by decentralised authorities. It is therefore necessary that these decentralised authorities report to the centralised government (i.e., the State) on the SGEI State aid that they have granted to undertakings, to enable the State to fulfil its reporting obligations towards the European Commission. For the Dutch local authorities, the reporting is done through the State aid Coordination Point operated by the Ministry of the Interior and Kingdom Relations and Knowledge Centre Europa Decentraal. How to report? In order for Dutch local authorities to fulfil their reporting obligations towards the State relating to the SGEI Decision, these authorities must supply Knowledge Centre Europa Decentraal with the information regarding SGEI State aid granted in the past two years, in every even year (2024, 2026, etc.). The Knowledge Centre will check the information, and if correct and complete, forward it to the Ministry. The information that must be supplied to the Knowledge Centre concerns in particular the number of aid measures granted under the SGEI Decision, the amounts of State aid, the duration of the measures and the economic sectors within which the State aid was granted. Considering the above, it is important for decentralised authorities to keep proper records of annual aid grants so that reporting obligations can be properly met. Do you have questions on this topic? Or do you, as a local authority, need support in preparing SGEI aid reporting? Feel free to contact Monika Beck or one of our other state aid specialists.

On 30 October 2024, the District Court of The Hague ruled in two separate final relief proceedings that EP 1 427 415 B1 (“EP 415”) and the SPC of Bristol-Myers Squibb (“BMS”) on apixaban are valid and, in the case of Sandoz infringed (BMS/Sandoz and Teva/BMS). With these rulings, the NL District Court allows post-published evidence. G2/21 (plausibility) and G1/22 and G2/22 (priority) are taken into account. What preceded: interim relief (PI) proceedings The first PI decision on apixaban in the Netherlands goes back to 10 May 2022 when the Provisions Judge of the District Court of The Hague denied a PI, requested by BMS against the sale of generic apixaban by Sandoz. After the decision in G2/21 of 23 March 2023, BMS started new PI proceedings against Sandoz and STADA/Centrafarm, later also against Teva. In separate decisions of 17 May 2023 and 31 May 2023, the Provisions Judge again ruled in favour of the generic companies and denied the requested PI, stating that G2/21 did not change the position regarding the rejection of post-published evidence. The Provisions Judge assessed it as likely that the claims of EP 415 would not be considered inventive due to lack of plausibility in final relief proceedings. All decisions were appealed by BMS. Contrary to the Provisions Judge, the Court of Appeal (CoA) held EP 415 inventive and found that the post-published evidence could be taken into account when assessing inventive step. Reference is made to our Pharma Update of 25 August 2023. Two NL final relief (invalidity) proceedings The final relief proceedings which have now been decided, were initiated well before the PI proceedings, but delayed in view of G2/21. Priority in view of G1/22 and G2/22 The Court first considers the attack on priority. The generic companies argued that BMS cannot rely on priority document US 165 because, at the date of filing of the EP 415 application, the applicant (BMS Company, the predecessor of BMS) was not the holder of priority document US 165. The transfer of US 165 from the holder of the priority document to the applicant of EP 415 did not take place until several years after the filing of the EP 415 application. In its judgment, the District Court refers to G1/22 and G2/22, in which the EBA stated that, under the EPC, the holder claiming priority is presumed to be entitled to rely on the priority document claimed. This presumption also applies where the European patent is derived from an international (PCT) application and/or where the applicants of the priority document are different from the applicant of the subsequent application. The burden of proof to rebut this presumption lies with the party contesting the right to priority. With regard to G1/22 and G2/22, the Court finds that implicit consent to the transfer of priority rights is sufficient. As the EBA considers the possibility of a nunc pro tunc transfer of priority rights, the Court concludes that, in this case, the deed of transfer after the filing date can be relied on to claim priority and the generic companies failed to provide sufficient evidence to rebut the presumption of priority. Plausibility in view of G2/21 In light of the inventive step attack brought by the generic companies, the main issue in the final relief proceedings is whether BMS can rely on a claimed technical effect for inventive step. The Court first applies the PSA as set forth in G2/21 and then analyses if for the skilled person, having the common general knowledge in mind, and based on the application as originally filed, said technical effect is derivable as being encompassed by the technical teaching and embodied by the same originally disclosed invention. Like the CoA, the District Court considers that, in view of the decision in G2/21, there is no obligation that the patent application must always “prove” or make plausible that the claimed technical effect actually occurs. The District Court concludes that the claimed technical effect is disclosed, inter alia, in one of the preferred embodiments mentioned in the patent application. It therefore admits BMS’s post-published evidence and finds that the post-published evidence shows an improvement in the technical effect. Other jurisdictions The Court further notes that also in France, Norway and Sweden EP 415 was held valid, albeit following a different line of reasoning. The English High Court ruled differently because – according to the Dutch Court – it applied a different test (plausibility in the context of sufficiency) as set forth the Supreme Court’s decision in Warner- Lambert. Likewise the Irish Court. Multiple invalidity proceedings on EP 415 are still pending, e.g. in Bulgaria, Czech Republic, Denmark, Finland, Hungary, Italy, Croatia, Poland, Portugal, Slovakia, Spain and Switzerland. Conclusion The decisions show that depending on the circumstances, post-published evidence may be admissible if the technical effect is derivable for the skilled person from the application as filled and is part of its overall technical teaching. Earlier, in Insud Pharma / Galenicum, the Court of Appeal of The Hague had decided that post-published evidence may be rejected if the technical effect is not derivable from the application. The decisions also show that the rebuttal of the presumption of priority as presented in G1- and G2/21, along with the subsequent decisions of the Court of The Hague, remains a very challenging proposition in practice.

The European Data Act comes into force with effect from 12 September 2025. This Regulation creates new rights and obligations that cover not just personal data, but data in general. The practical implications are huge. The Data Act particularly affects parties offering connected or Internet of Things (IoT)) products and cloud services. What is not often mentioned is that the Regulation also contains rules on data sharing agreements. These rules apply to all businesses. Providers of connected devices and related services The first main topic in the Data Act concerns the rules on the sharing and use of usage data from connected products and related services. These include products and services such as smartwatches and smart speakers with a virtual assistant like Alexa, as well as agricultural machinery with internet access. Businesses must comply with new obligations regarding connected products and related services as a result of the Data Act. First, companies that produce connected products and provide related services should design the products and services so that users can easily access their data (data access by design). Moreover, the Data Act gives users an explicit right of access to usage data. This right of access means that users of connected products and related services can easily access their usage data where data access by design has not been provided for. In addition, enterprises should also allow users to easily share their usage data with another party. Finally, buyers of connected products and recipients of a related service from the seller and the provider, respectively, should also be given certain information about how the connected product collects data. The data holder (usually the provider of the connected product or a related service) may now use non-personal data only if the agreement with the user of the connected product or related service allows it. The data holder must not use the data to derive insights about the economic situation, assets and production methods of the user, or the user’s use of the product or service, in a manner that could undermine the commercial position of the user on the markets in which the user is active. Data may be shared with third parties only when necessary to perform the agreement with the user. From 12 September 2026, connected products sold and related services provided must comply with the data access by design obligation. The other rules on connected products and related services, including the explicit right of access, already apply from 12 September 2025. Cloud service providers The second main topic concerns the rules imposed on data processing services. The term data processing services refers to a wide range of cloud services. The preamble refers to infrastructure as a service (IaaS), platform as a service (PaaS), software as a service (SaaS), storage as a service and database as a service. The term also covers what are known as edge services. The obligations imposed on data processing service providers relate to 1) facilitating switching, 2) facilitating interoperability between different data processing services and 3) preventing international governmental access. From 12 September 2025, data processing service providers will have to comply with these rules. Sharing of data with governments The third main topic concerns rules on mandatory data sharing with public sector bodies, the European Central Bank, the European Commission or any other European Union body. These bodies can request data on the basis of exceptional necessity. This can only be done if, in an emergency situation, the bodies cannot obtain the data in a proper and timely manner by other means. Bodies may also request non-personal data when such data is necessary for the performance of a specific task in the public interest, such as the compilation of official statistics. These rules will also apply from 12 September 2025. Unfair contractual terms between enterprises Perhaps the most surprising part of the Data Act is the provision on unfair contractual terms. It applies to data-sharing agreements made between enterprises (B2B). In short, the article provides that contractual terms on data are not binding on the other party if the terms have been unilaterally imposed by the provider and are labelled unfair. The article contains a list of provisions that are always unfair (a black list) and a list of provisions that are presumed to be unfair (a grey list). If an enterprise uses a grey list clause, this enterprise must prove that the clause is not unfair. What is striking about the article is that it is set up as a black and grey list between enterprises. Black and grey lists have long existed for general terms and conditions imposed on consumers by enterprises (see, for example, Articles 6:236 and 6:237 of the Civil Code), protecting consumers from unfair general terms and conditions. So now there is a similar list for business-to-business agreements. This provision applies regardless of the size of the enterprises concerned. The obligations in this article cover all contracts and clauses on data access and use concluded between enterprises. Any agreement or provision on data sharing and use will need to take this article into account. The article will often also apply when enterprises enter into contracts between themselves about personal data, such as a joint controller agreement under Article 26 of the General Data Protection Regulation (GDPR). The application of the article is mandatory law. This means that enterprises cannot agree that the article does not apply to their relationship and cannot deviate from it. It is important that enterprises are aware of this article when entering into agreements on (personal) data. For buyers, though, it is important to always try to negotiate the unfair contract terms imposed on them. If no attempt has been made to negotiate the unfair terms, an enterprise cannot invoke the protection of the article. The provision applies to all agreements concluded after 12 September 2025. For some agreements entered into before 13 September 2025, the provision applies from 12 September 2027. This applies to agreements entered into for an indefinite period and those expiring after 11 January 2034. Monitoring and enforcement of the Data Act The Data Act has direct effect in the Dutch legal order, leaving no or limited scope for divergent or additional national rules. For the matters to be regulated nationally, a national Implementation Act is pending. The Regulation gives Member States the freedom to decide themselves which supervisory authority is competent to enforce the Regulation’s provisions. In the Netherlands, the Lower House has yet to vote on the draft Dutch Implementation Act. The current draft Data Regulation Implementation Act designates the Data Protection Authority (AP) and the Consumer and Market Authority (ACM) as supervisors. Conclusion The Data Act will apply in the Netherlands from 12 September 2025. The Data Act creates new rights and obligations for enterprises in particular. In particular, all enterprises will have to be vigilant of the rules on unfair contractual terms when concluding agreements on (personal) data. The AP and the ACM are likely to be designated as supervisors for compliance with the Regulation. The Data Act is not applicable at present. Nevertheless, enterprises are advised to take measures in advance. This will allow timely adaptation of operations to the obligations imposed by the Regulation. Finally More blogs on this topic will follow. Keep an eye on our website for the latest news. This blog originally appeared on Privacy Web. If you have any questions about the Data Act, please contact Jan Baas, Jiahui Plomp or one of our other Data & Privacy specialists. This article was co-authored by Jolijn Gijsen.