Publications

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 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.

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]

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.

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.

In March 2024, Minister Van Gennep published the announced legislative proposal Modernisation of the Competition Clause. The consultation phase ended in May 2024. The Minister is aiming for 1 July 2025 as the enforcement date. The main principles of the proposal are currently as follows:  The maximum duration of the non-competition clause may not exceed 12 months after the end of the contract and its duration must be justified;  A geographical limitation in the clause is mandatory; without it, the clause is null and void;  The condition that substantial business interest  must be motivated will extend to every contract, whether definite or indefinite, or the clause is null and void;  The employer must invoke the clause in writing no later than one month before the end of the employment contract, else it lapses, except in case  the employee resigns or the employment agreement is terminated by the court;  The employer must pay 50% of the last-earned monthly salary for each month that the non-competition clause is enforced after the end of the employment contract, unless the employee is found guilty of serious misconduct.   If an employer invokes the clause but fails to pay the compensation, the clause lapses, but the obligation to pay the compensation remains;  The court  may mitigate the clause, without lapse of the obligation to pay the compensation;  The employee has to repay the compensation in two cases: if the court annuls the non-compete altogether or if the employee  violates the clause despite the clause being invoked by the employer and the compensation has been paid;  In a settlement agreement, parties may agree that the clause will remain in effect without payment of the compensation;  Existing non-competition clauses remain valid without the obligation to motivate the clause or maintain a geographical limitation, but with a maximum duration of one year and one month’s written notice;  The House of Representatives has recently taken receipt of a motion that would restrict the use of a non-competition clause to employees earning at least one and a half times the average salary.  The final legislation may, of course, differ from these proposals. If the proposal becomes law, the invocation of non-compete clauses will probably decline. At the same time, employers would likely keep a closer eye on violations of non-competes (since they could recover the paid compensation in that way). On the employee side, given the compensation, litigation to have a non-competition clause nullified might also decline.  How can La Gro be of assistance?  Would you like to know more about non-compete clauses? Is a former employee violating his non–compete? Do you have a different question? Expertise in 18 legal fields enables La Gro to offer broad legal assistance. Feel free to contact me or one of my specialist colleagues .