Newsletter Vestius April 2018

Countdown to 25 May 2018

Just a few more few weeks to go before the General Data Protection Regulation (“GDPR”) will enter into force on 25 May 2018.

One of the biggest changes compared to the Dutch Personal Data Protection Act is that the obligation to notify automatic processing of personal data will lapse. Instead, organisations will have to demonstrate with documents that their data processing complies with the requirements set out in the GDPR.

Until now the salary and personnel administration have been exempted from the obligation to notify. As of 25 May 2018 employers must be able to demonstrate that these data are being processed in accordance with the GDPR. This means, inter alia, that employers must inform employees at the start of their employment about, amongst others, the legal ground for the data processing and their privacy rights. Procedures must moreover be in place for exercising those privacy rights.

With just under a month to go it is therefore high time to make sure that your personnel and salary administration are GDPR-proof. If you need advice, please do not hesitate to contact us!

For more information or advice on this subject please contact Michiel van Haelst, Lise van den Heuvel or Sander Pieroelie.

Bill for a Remedial Act for the Dutch Work and Security Act (“Wwz”)

The government has drawn up a bill, the Dutch Balanced Employment Market Act (“WAB”) which amends various employment law and social law issues. Although changes are still possible, it is expected that the main legislative changes of the bill will enter into force as of 2020.

The most important amendments are the following:
• Cumulation ground: it will be possible to ask the court to dissolve an employment contract based on a combination of incomplete dismissal grounds, such as partially underperformance and partially a damaged working relationship.
• Probationary period: is extended from two to five months for an employment contract for an indefinite period of time. The non-compete clause will in principle be cancelled in the event of dismissal during the probationary period.
• Unemployment insurance premium differentiation: if an employee is offered an employment contract for an indefinite period of time rather than a fixed-term contract, the employer will pay a lower unemployment insurance premium.
• The maximum period during which consecutive fixed-term contracts can be concluded: is extended from 2 to 3 years. The maximum number of three successive fixed-term employment contracts remains the same.
• Transition payment: is payable from day one (also during the probationary period); extra accumulation after 10 years of service is cancelled; and the options to charge costs of retraining are extended.
• On-call workers: no longer have to be permanently available and must therefore be called on at least four days in advance.
• Payroll workers: will be entitled to the same terms of employment as employees in service of the employer (except for pension rights).

It is too early to take specific steps in preparation of this new legislation as it is not yet clear what the exact provisions of the new Act will be. We will of course keep you informed.

For more information or advice on this subject please contact Anna Görgün or Sander Pieroelie.

Duration of 30% rule reduced from eight to five years

The government intends to reduce the duration of the 30% rule from eight to five years with effect from 1 January 2019. The proposal covers both new and existing situations. The Council of Ministers agreed to this on the proposal of the State Secretary for Finance. If the proposal is accepted by Parliament, all 30% decisions that run for more than five years on 1 January 2019 will end abruptly.

The Cabinet intends to include the changes in the package of the Tax Plan 2019 that will be announced on Budget Day 2018 (“Prinsjesdag”).

For more information or advice on this subject please contact Bart de Vroe.

On issuing loans, banks may not simply impose onerous terms on companies in trouble

Companies that are in financial trouble run the risk of being put under pressure by a bank when they receive emergency credit. Especially when a company is up to its neck in it and alternative financing is not possible.

The Arnhem-Leeuwarden Court of Appeal has, however, ruled that a bank that does so breaches its banking duty of care. Rabobank was deemed guilty of this after it had attached very onerous terms to the loan it issued to Midreth, a construction company. The Court found that the bank had abused the serious financial situation Midreth was in. In a judgment of 27 March 2018, Rabobank was therefore ordered to compensate the losses that the shareholder and the director had suffered as a result of this breach.

In other words, if your company is in trouble, remember that you do not have to accept all the bank’s terms. And that it is possible that your company is entitled to compensation for the losses resulting from the onerous terms imposed by a bank on issuing emergency credit.

For more information or advice on this subject please contact Paul Hendriks or Paulien Blaauwbroek .

#MeToo is not yet ‘business as usual’ in the court room

assault on the work floor have likewise become a hot topic, these events do not often find their way to the court room. From the Dutch case law on employment law matters one can so far mainly conclude that even in the case of culpable conduct, such as sexist comments and sexual intimidation, the court will frequently find that there is insufficient ground to dissolve an employment contract. Various rulings have found that in many cases less drastic sanctions are possible.

If the working relationship is seriously damaged by the events arising from the culpable conduct, the court may decide to dissolve the employment contract. This usually has detrimental consequences for the employer.

Accordingly, if you as an employer are faced with a case that would be an open-and-shut case on #MeToo, the Dutch employment court needs more than 140 characters to reach a verdict. It is therefore important to get advice before you take measures.

For more information or advice on this subject please contact Suzanne Pesak.

Prevention is better than cure: the importance of a proper shareholders’ agreement

You know the drill, parties starting up a company together and are full of good intentions; the sky is the limit. Often, however, without recording proper arrangements. They start out based on mutual trust, not expecting that they might not get along as well as time goes by. The reality, unfortunately, is that this does happen. There are various reasons why we recommend that the agreements be recorded in writing in a shareholders’ agreement (assuming it is a private limited company).
1. It is the responsibility of the managing board of a company to ensure that a clear governance structure is in place. This includes recording how the company is led, managed, coordinated and supervised.
2. A proper shareholders’ agreement is important for preventing the company from becoming rudderless due to all kinds of deadlocks within the board or the general meeting.
3. There is a real chance that the collaboration will have seen its best days after a while and will come to an end. A proper shareholders’ agreement will contain a clause about the valuation of shares to avoid conflicts about this.

In our experience the costs of drawing up a shareholders’ agreement more than compensate for the misery it can prevent.

For more information or advice on this subject please contact Henk Brat or Paul Hendriks .

Overview of closed transactions

In the past period too, Vestius has advised various companies on investments and takeovers. A brief overview:
• Tocardo Tidal Power in its relaunch and investment from the Sustainable Energy North Holland Participation Fund [Participatiefonds Duurzame Energie Noord-Holland] and from a number of private investors;
• SGI Aviation Services B.V. on its strategic investment in its business from FinTech Global Incorporated;
• Axivate Capital II on its strategic investment in Dealconomy;
• Vereniging Veronica en V-Ventures on the sale of its subsidiary Algemeen Nederlands Persbureau (ANP) to Talpa Network.

Vestius in the Legal 500 and Chambers Europe 2018!

We are pleased that Vestius Advocaten has, once more, been included in the 2018 EMEA Guide of the Legal 500 and Chambers Europe 2018.

The Legal 500 and Chambers Europe are guides in which only the better law firms are listed. A listing in both guides is therefore a seal of approval. The listings and recommendations are based on interviews with clients and competing law firms.

Once again, we would like to thank our clients for their positive feedback!