Publications

Gerard Zuidgeest 1
Gerard Zuidgeest
Attorney at Law
Transfer of Bankrupt Undertaking Act
In the event of transfer of undertaking employees are transferred to the transferee by operation of law under the same terms of employment. An exception applies in the case of bankruptcy: in case of a continuation after bankruptcy, employees do not automatically transfer. The transferee may choose which employees it wishes to offer an employment agreement and under which conditions. This exception can also apply if a continuation after bankruptcy is prepared (far) in advance, provided there is a legal basis for such a ‘pre-pack’. Such a legal basis does not currently exist in the Netherlands.  The Continuity of Enterprises Act, containing a legal basis for the pre-pack, already passed in the House of Representatives in 2016, but it has not entered into force yet in anticipation of the Transfer of Bankrupt Undertaking Act. This act has now been published and has entered into the public consultation phase. Dutch law may therefore soon provide a full regulation of the transfer of employees through pre-packs.  The Transfer of Bankrupt Undertaking Act dictates that  the transferee  must, in the event of a continuation after bankrupty, offer all dismissed employees an employment contract with unchanged terms of employment. However, certain terms and conditions of employment may change if necessary to maintain employment availability. In any case, existing non-competition clauses will be null and void. If a loss of jobs is foreseen within 26 weeks after the continuation – a regular occurrence in takeovers – the transferee only has to make an offer for available positions, with selection by means of the opposite of the reflection principle (Afspiegelingsbeginsel). Finally, the works council will be given advisory rights on this course of action.   For smaller undertakings (below 20 employees), the new rules shall – for now –  be optional .  How can La Gro be of assistance?  Are you thinking about selling your business? Are you facing a bankruptcy? Do you have any other questions? Expertise in 18 legal fields enables La Gro to offer broad legal assistance. Feel free to contact me or one of my specialist colleagues.
Gerard Zuidgeest 1
Gerard Zuidgeest
Attorney at Law
Supreme Court clarifies Xella
Long-term illness of an employee can eventually provide a basis for termination of the employment contract, provided that:  (1) the statutory (possibly extended) period of wage payment during illness has expired, and    (2) it is plausible that recovery and performance of modified work are not reasonably possible.   In case of such a termination, the statutory transition compensation is due. Employers may therefore be tempted not to terminate the employment contract and instead let it continue as ‘dormant’, in other words without paying any more wages and without settling with the employee financially by paying the transition payment.   In 2019, the Supreme Court ruled that an employer must in principle agree to terminate the employment contract by mutual consent if the employee so requests, unless the employer still has a legitimate interest in the continuation of the employment contract, for instance if reintegration is still possible. An approaching retirement – which would end the employment contract without statutory transition compensation – does not constitute a legitimate interest in this context.  The Supreme Court recently clarified that the existence of an exception must be assessed at the time the employee makes the request for termination. This assessment must include relevant facts and circumstances before and after the request.  UWV often compensates the transitional compensation paid to a long-term sick employee. Such compensation should be calculated against the date on which the statutory period of wage payment during illness ended (and not, for example, against the actual termination date). Otherwise, the employer pays more than the maximum compensation. This regulation may change as part of the coalition agreement of 16 May 2024, but as of yet no initiatives have been taken to that end.   How can La Gro be of assistance?   Do you have questions about a sick employee or compensation of transitional allowance by UWV? 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.
Benjamin Niemeijer 2 – La Gro
Benjamin Niemeijer
Attorney at Law
LGGA Pharma Update – 31 January 2024
On 23 January 2024, the Provisions Judge of the District Court of The Hague handed down a decision in the PI proceedings initiated by Janssen Biotech Inc. (“Janssen”) against Samsung Bioepis NL B.V. (“Samsung NL”). Janssen claimed that Samsung NL infringed its Stelara SPCs granted in Italy and Denmark. The Provisions Judge denied the PI as according to his preliminary assessment Samsung NL can benefit from the SPC Manufacturing Waiver.
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Marleen van den Horst
Attorney at Law
LGGA Pharma Update - 28 November 2023
On 1 November 2023, the District Court of The Hague handed down a decision in the invalidity proceedings instituted by Sandoz B.V. (“Sandoz’’) against Bayer Intellectual Property GmbH. (“Bayer’’). The Court held the once-daily dosing regimen of rivaroxaban, claimed in EP 1 845 961 B1 (“EP 961”), inventive.
Reinoud van Ginkel 1
Reinoud van Ginkel
Attorney at Law
Financial Instruments for Early Seed and First Round Investments
Today, innovation is the norm. Business models are constantly evolving, and financial instruments play a crucial role in shaping the business future. This article looks at three emerging models that impact the business and financial landscapes: the widely used convertible loan, the Simple Agreement for Future Equity (SAFE), and the Agreement for Subscription against Advance Payment (ASAP). In this contribution, we delve deeper into these models, examine their impact on companies and investors, and shed light on the legal considerations inherent in these financial approaches.
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Marleen van den Horst
Attorney at Law
Pharma Update - 23 October 2023
On 3 October 2023, the Provisions Judge of the District Court of The Hague rendered its decision in the PI proceedings between Grünenthal GmbH. et al. (“Grünenthal’’) and Teva B.V. et al. (“Teva’’). The Provisions Judge (“PI Judge”) is of the preliminary opinion that EP 1 457 208 B9 (“EP 208”) makes the technical effect plausible and is inventive. The likelihood of EP 208 being held valid in final relief proceedings is high and therefore a PI against Teva is granted. Making this case particularly interesting is that in parallel final relief proceedings, courts in Germany and the United Kingdom have found EP 208 invalid. The PI Judge (who is also a Judge in the Dutch local division of the UPC) is of the preliminary opinion that the plausibility standard in the Netherlands is different from that in the UK, referring to the recent PI decision of the Court of Appeal in the Apixaban case.
Reinoud van Ginkel 1
Reinoud van Ginkel
Attorney at Law
Cross-Border Mergers and Acquisitions - The Mobility Directive
On 1 September 2023, the Implementation Act for the European Mobility Directive comes into effect. This new law contributes to a more integrated and dynamic European market. In an era of increasing globalization and international business activities, companies are increasingly faced with the challenge of operating across borders and expanding their operations. Cross-border mergers, conversions, and splits play a crucial role in facilitating this business mobility and promoting collaboration between companies from different countries.
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Marleen van den Horst
Attorney at Law
Pharma Update - 25 August 2023
On 15 August 2023, the Court of Appeal of The Hague (”CoA”) rendered its decision in the PI proceedings between Bristol-Myers Squibb Holdings Ireland Unlimited Company (“BMS’’) and Sandoz B.V. (“Sandoz’’), Centrafarm B.V. et al. (“Centrafarm”) & Teva B.V. et al. (“Teva’’). The CoA is of the preliminary opinion that EP 1 427 415 B1 (“EP 415”) makes the technical effect plausible, allowing post-published evidence to be taken into account. The CoA comes to its finding after the Enlarged Board of Appeal (“EBA’’) handed down its decision in G2/21. The likelihood of EP 415 being held valid in the pending final relief proceedings is high and therefore a PI against the generic companies is granted. Making this case of particular interest is that two out of the three CoA Judges are also Appeal Judges in the UPC. This case may show the position the UPC may take on plausibility.
Pieter van Deurzen
Pieter van Deurzen
Attorney at Law
Signing International Consulting Contracts: pay attention to the details!
As countries around the world become more and more connected, the work and content that international lawyers need to handle continues to grow in richness. International lawyers often put more time and effort into drafting consulting contracts than other contracts, as they often involve ongoing and more complex relationships without easily defined deliverables. In drafting these points a few key items should not be left unattended, apart from a solid description of the work to be performed and the price. But that goes without saying.
The shareholders' agreement: 5 points of importance
A shareholders’ agreement (‘SHA’) may prevent discussions or conflicts between shareholders internally and also between the shareholders and the company. It is not mandatory to draw up a SHA, but this is highly recommended in case the shares are held by more than one shareholder. Freedom of contract is therefore largely paramount. In this blog we cover 5 specific points of attention regarding the shareholders' agreement.
Two reasons why you must include a diplomatic clause in your rental agreement
A Diplomatic clause has become very common in rental agreements. There are two different forms of diplomatic clauses. The first form applies to persons (for example, diplomats) who want to rent out their homes when they go abroad. This form of the diplomatic clause has its basis in article 7:274 of the Dutch Civil Code (hereinafter: “Diplomatic clause 1”). The second form applies to employers who want to provide accommodation to their employees who are temporally working far away from their homes. As an employer, you do not wish to be bound to a rental agreement if your employee has to leave. Therefore, you should include a diplomatic clause in the rental agreement (hereinafter: “the Diplomatic Clause 2”).