Category News

ILG WEEK: Insurance claims Snapshots from around the Globe

ILG WEEK: Insurance claims Snapshots from around the Globe 1760 602 Ekelmans Advocaten
istock-530991962
Leestijd: 3 minuten
Lesedauer: 3 Minuten
Reading time: 3 minutes
Expertise:

ILG Week will focus on legal themes surrounding global insurance law litigation matters involving casualty, property, construction, auto/motor, cyber and sports litigation. Presenters will guide participants through case studies and interactive sessions, addressing key issues of importance to claims professionals and insurance industry personnel. Speakers from Ekelmans & Meijer will also participate in a number of webinars.

ILG Week is complimentary and open to you and your colleagues.

Review our webinar series below and register today!

ILG WEEK: Insurance claims Snapshots from around the Globe

Monday 22 March 2021 – 1:00 – 2:00 pm BST

How the ESG (Environmental, Social & Governance) agenda will revolutionise the insurance industry
Simon Colvin of Weightmans will talk about his firm’s own ESG journey and will provide insight into how the ESG agenda is starting to permeate day-to-day activities in the insurance, reinsurance and claims spaces. Dennis Tobin of Blaneys will provide the Canadian perspective exploring what Stakeholder Capitalism means and why it is so important to understand the influence of stakeholders other than shareholders.
Register here

Monday 22 March 2021 – 3:00 – 4:00 pm BST

Negligent security: Foreseeable crime/Believable risk
Unfortunately, criminal acts are prevalent in our society and create risk management challenges. Moreover, we are still often surprised at their scope, audacity and violence. In this webinar, counsel and an industry expert will discuss the legal foundations underpinning ‘negligent security’ claims, industry efforts to minimize risk, and examples of claims and problems arising for insurers and insureds in various international jurisdictions.
Register here

Tuesday 23 March 2021 – 3:00 – 4:00 pm BST 

COVID-19 Business interruption claims: Where are we now?
This session will explore the evolution of COVID-19 BI claims across international jurisdictions, highlighting the varying approaches taken by courts. Depending on the jurisdiction, there is enormous pressure on insurers to settle and pay claims, and pressure on adjusters to quantify them. Excessive delay in doing so may expose insurers to further claims for damages for late payment. The position and approach of the commercial policyholder and government and regulatory interventions to date will also be addressed.
Register here

Wednesday 24 March 2021 – 3:00 – 4:00 pm BST 

Survival and Revival: How the construction industry is embracing change to overcome recent challenges
Our experienced panel will reflect on the challenges faced by the construction sector in 2020, including the impact of these challenges, the drivers of change in 2021 and what the future may have in store for the industry and its insurers.
Register here

Thursday 25 March 2021 – 1:00 – 2:00 pm BST

Autonomous vehicles: The rise of the machines
An assessment of the current state of motor vehicle technology and the development of the micro-mobility market including an analysis of the issues that these vehicles pose in various jurisdictions.
Register here

Thursday 25 March 2021 – 3:00 – 4:00 pm BST

Ransomware attacks: An ongoing threat
Ransomware attacks continue to increase exponentially. Costs with dealing with these attacks have become more and more burdensome to businesses throughout the world. Fortune 500 companies, small retail shops, healthcare providers and both large and small municipalities have found themselves to be victims of cyber criminals. Our panel will discuss the current state of cyber attacks, how they are being responded to and ways in which both businesses and insurance carriers can work to prevent these losses in 2021 and beyond.
Register here

Friday 26 March 2021 – 3:00 – 4:00 pm BST 

Concussion litigation: It’s heading your way
Join our group of sports law practitioners from across the globe in a discussion of concussion-based litigation. The presentation will trace the history of related claims in North America and consider foreseeable trends in the U.K. and European countries.
Register here

For any questions regarding ILG Week please email info@insurancelawglobal.com.

About ILG
Insurance Law Global (ILG) is a multi-jurisdictional network of like-minded independent insurance defence law firms. Together, we are committed to helping clients respond to the challenges and opportunities presented by globalisation and the increasingly diverse needs of the insurance industry.

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VoetbalTV and the GDPR: even commercial interests can be legitimate

VoetbalTV and the GDPR: even commercial interests can be legitimate 2560 1707 Ekelmans Advocaten
Voetbal
Leestijd: 4 minuten
Lesedauer: 4 Minuten
Reading time: 4 minutes
Expertise:

The Dutch supervisory authority (Dutch DPA) has long taken the position that a purely commercial interest cannot be a legitimate interest as referred to in Article 6(1)(f) of the GDPR. On that basis the Dutch DPA imposed a € 575,000 fine on VoetbalTV in 2020. A Dutch lower administrative court disapproved of the strict interpretation of legitimate interests by the Dutch DPA and annulled the fine.

The Dutch DPA has investigated the privacy of players and spectators filmed by VoetbalTV. VoetbalTV is an online platform that broadcasts amateur football. Users were able to watch highlights, share those highlights or use the clips as preparation for their matches. In September 2020 VoetbalTV was declared bankrupt. The Dutch DPA concluded that VoetbalTV should not have broadcast the film footage of the footballers, because there is no lawful basis for the recording and distribution of this footage. The Dutch DPA imposed a fine of € 575,000 on VoetbalTV for unlawful processing of personal data. VoetbalTV did not agree with the fine and initiated court proceedings against the Dutch DPA. A Dutch lower administrative court gave judgment on 23 November 2020.

VoetbalTV believes it has a legitimate commercial interest in distributing the images The court ruled that a purely commercial interest can be a legitimate interest for processing personal data (Art. 6 (1) f AVG) and thus for making recordings and distributing the images. This follows from European case law.

Dutch DPA: a commercial interest can never amount to a legitimate interest

In determining what constitutes a legitimate interest, the Dutch DPA applies a strict view: an interest is only legitimate if it is named as a “legal interest” in law or unwritten law. This interest must be of a more or less urgent and specific nature arising from a rule or principle of law. If this is not the case then there is no legitimate interest that has to be taken into account in the balancing test. Purely commercial interests and profit maximization lack a legal character. Therefore, according to the Dutch DPA, those interests can never amount to a legitimate interest. This restrictive interpretation is also found in the guidance note the Dutch DPA has published on how legitimate interests under the GDPR should be interpreted. Dutch legal practitioners have been critical of the guidance note from the Dutch DPA.

According to Voetbal TV, the level playing field is much broader: any interest can be legitimate as long as it is not contradictory to statutory law.

The European Perspective

The ‘Fashion ID’ judgment from the Court of Justice of the European Union (CJEU) (ECLI:EU:C:2019:629) shows that the legitimate interest is entirely flexible and open-ended in nature. Fashion ID collected and shared personal data in order to benefit from the commercial advantage consisting in increased publicity for its goods. This too can amount to a legitimate interest. Indeed, recital 47 to the GDPR stipulates that direct marketing can be a legitimate interest. By excluding purely commercial interests, commercial enterprises never get around to the balancing test for which the ‘legitimate interest’ basis was created. Both the right to respect for one’s private life and the freedom of enterprise are European fundamental rights. Fundamental rights must be taken into a balancing test for which the ‘legitimate interest’ basis was created. The one fundamental right never prevails over the other by definition. Any interest can be legitimate. The European Data Protection Board (EDPB) also defined legitimate interests in a more inclusive manner.

This interpretation allows for more interests being legitimate than the Dutch DPA’s interpretation, as many factual, economic, and idealistic interests are not designated in the law. The court rules that it is – in principle – up to controllers (i.e., VoetbalTV) to determine their legitimate interests. The controller must act accordingly.

Judge overturns Dutch DPA GDPR fine

In the Voetbal TV case, the court adopts the broad interpretation of “legitimate interest” used by the CJEU in the Fashion ID case: is the processor not pursuing an interest that is contrary to the law ?

The court disapproved the strict interpretation of legitimate interests by the Dutch DPA. According to the court, excluding certain interests in advance is contrary to European law.

Moreover VoetbalTV indicates that it has interests that go beyond commercial purposes. Distributing the images is also informative and makes the sport available to a wider audience.

Based on the purposes stated by VoetbalTV and the explanation that the processing is necessary and proportionate, the Dutch DPA must still assess whether VoetbalTV has a legitimate interest in recording and broadcasting the film footage of footballers.

What are the consequences of this judgment?

The Dutch DPA will have to revise its guidance note on how legitimate interests under the GDPR should be interpreted. The VoetbalTV judgment enables organisations to process personal data on the basis of commercial interests since these are legitimate interests in the meaning of article 6(1)(f) GDPR. In that case, it is not necessary to ask all data subjects involved if they are willing to consent to the data processing. This is good news for (commercial) organisations. However, it is important to note they must have a well-founded explanation for the (intended) data processing.

The period for submitting an appeal with the Court of Appeal has now expired. It is not known to us whether an appeal has been submitted, but we do not consider that there is a very high risk of the Court of Appeal adopting a different course. Interesting from an EU perspective is that on September 2, 2020, the European Data Protection Board (EDPB) published draft guidelines on the targeting of social media users on its website. The EDPB maintains the position that commercial interests can also amount to a legitimate interest. It will be interesting to see how the Dutch DPA’s legitimate interest interpretation in the Netherlands and on EU level is impacted at this stage.

Our Privacy Desk will of course keep you updated regarding ongoing developments.

Auteur

Fleur van Kersbergen: the most solid mentor

Fleur van Kersbergen: the most solid mentor 1400 1082 Ekelmans Advocaten
Fleur van Kersbergen
Leestijd: < 1 minuut
Lesedauer: < 1 Minute
Reading time: < 1 minute
Expertise:

We are proud to announce that Fleur van Kersbergen has been described “the most solid mentor” by the jury tasked with selecting the mentor of the year.

We congratulate Mareine Callemeijn, who won the ‘best mentor of the year award’.

Fleur is a lawyer specialised in insurance law and a mentor to Simone Eman during the first three years of her career. Simone says about Fleur: “Fleur is not only a great lawyer, but an excellent teacher as well. In her feedback, Fleur always emphasizes the learning process. As far as I’m concerned, Fleur is not the mentor of the year, but the mentor of the century!”

With three other lawyers, Fleur was nominated for the title ‘Best mentor of the year’. The jury says to be impressed with her thoroughness and her modesty. Her approach ‘tough on issues and gentle with people’ proves to be successful.

Coaching and training of our young lawyers is a top priority for our firm. An excellent mentor makes an important contribution to this.

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Travel Insurance in times of COVID-19 – view from The Netherlands

Travel Insurance in times of COVID-19 – view from The Netherlands 2560 1880 Ekelmans Advocaten
Travel Insurance
Leestijd: 3 minuten
Lesedauer: 3 Minuten
Reading time: 3 minutes
Expertise:

Due to Covid- 19 travel insurance companies have had to face many claims under the travel insurance policies in the past months. Many travel insurance policies exclude the outbreak of a pandemic from coverage. In a couple of cases the insured party did not give up after the Travel Insurer refused to provide cover and appealed to the Financial Services Complaints Tribunal of The Netherlands.

Travel insurance

As the name suggests, travel insurance provides cover for travelers during a trip. On the basis of travel insurance, travelers can receive assistance if they have to cut their stay short or if they are forced to stay longer as a result of an illness or an accident. Travel insurance usually covers the additional costs in certain cases.

The Policy Conditions of the travel insurance determine which events are covered and which events are excluded from insurance. Travelers can extend coverage by purchasing specific modules.

Financial Services Complaints Tribunal of The Netherlands interpret the policies in favor of the Insurers

The Financial Services Complaints Tribunal of The Netherlands is a dispute settlement authority accessible to consumers where they can complain about, for example, their insurance.

As mentioned before a couple of consumers appealed to the authority after the Insurer refused to provide cover.

An example of such a case is decision no. 2020-628 of 29 July 2020, of the Disputes Committee of the Financial Services Complaints Tribunal of The Netherlands. In this case the Insured was visiting his daughter in Morocco when both Morocco and The Netherlands went into complete lockdown. The flight was canceled and the only way home was repatriation by the Dutch Government. He had to stay in Morocco for weeks.

The Insured called on his travel insurance for the extra costs he would have to make because he couldn’t fly home. The Insurer however refused cover, and took the position that cover only exists when damage is caused by an earthquake, flood or volcanic eruption and that definitions of earthquake, flood and volcanic eruption are given in the General Terms and Conditions. These Conditions did not mention a pandemic or a virus outbreak, such as the coronavirus outbreak, and therefore the Insurer was not obliged to reimburse the Insured.

The Disputes Committee concurred with the position of the Insurer and considered (in so far as relevant) that the starting point should be what is stated in the Insurance Conditions. The Conditions are – according to the Committee – what parties have agreed on. According to The Disputes Committee the Insurer is free to determine the limits within which it is prepared to provide cover.

In this case The Disputes Committee found that the Policy Conditions were sufficiently clear about what would and would not be covered by the Insurer.

Does that mean Travel Insurance never covers COVID-19 related issues?

No, it does not. Firstly the question whether or not the insurance provides cover depends on the Policy Conditions. However in certain circumstances the Insured will be able to successfully make a claim on his travel insurance. This is the case, for example, if the insured or a co-insured himself becomes seriously ill due to the Corona virus and as a result has to make additional accommodation costs. Serious illness is in fact classified as an insured event in most Policy Conditions. In that case it does not matter what made the Insured sick in the first place.

Bron: Insurance Law Global

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Can you transfer personal data to third countries safely after Schrems II? 

Can you transfer personal data to third countries safely after Schrems II?  1120 600 Ekelmans Advocaten
Schrems II
Leestijd: 6 minuten
Lesedauer: 6 Minuten
Reading time: 6 minutes
Expertise:

Since the EU-US Privacy Shield has been declared invalid, it is unclear how a company can transfer personal data to the US. Anne-Mieke Dumoulin Siemens provides guidance in the twilight zone created by the Court.

The Court of Justice of the European Union (ECJ) declared the EU-US Privacy Shield invalid on 16 July 2020 in the so-called Schrems II case. This means that with immediate effect, the EU-US Privacy Shield can no longer serve as a basis for the transfer of personal data to the US. When transferring personal data to countries outside the European Economic Area (EEA), the rules of the GDPR must be followed. Now that the EU-US Privacy Shield can no longer be used as a basis for transfer, the question arises as to how transfer to the US (and to other countries outside the EEA) can be designed to be secure. This article provides guidance in the twilight zone created by the Court.

Exit EU-US Privacy Shield

The GDPR facilitates the transfer of personal data on the basis of an adequacy decision. The European Commission has issued an adequacy decision for 12 countries.  An adequacy decision guarantees the third country concerned provides an adequate level of data protection. The EU-US Privacy Shield is based on an adequacy decision issued by the European Commission. The Court has annulled the EU-US Privacy Shield in Schrems II because of the lack of an adequate level of protection in the US. There are surveillance regulations in the US that allow US intelligence and security services to access personal data. Such access is not limited to strictly necessary data. In addition, US citizens have no enforceable data protection rights and no effective legal remedies.

Consequences exit EU-US Privacy Shield

The clash between the European privacy regulations and the US surveillance laws has serious consequences for the many companies and organisations that transfer personal data to the US under the EU-US Privacy Shield on a daily basis. They are now acting in violation of the GDPR. Schrems II does not offer a transition period: the transfer of personal data to the U.S. on the basis of the EU-US Privacy Shield has been declared invalid as of the date of the ruling. Schrems II does not only cover future data flows, but also personal data that have been transferred in the past and are still accessible to U.S. authorities. At present, it is not to be expected that the European supervisory authorities will start immediate enforcement proceedings, but the question what is an acceptable alternative mechanism for the transfer of personal data should be at the top of your company’s action list. How to proceed?

Alternative mechanism for the transfer of personal data?

The transfer of personal data to recipients in third countries must not undermine the level of protection guaranteed by the GDPR to individuals within the EU. The recipient country must provide a level of protection for personal data comparable to that guaranteed within the EU. In short, transfers should only take place in full compliance with the GDPR.

If no adequacy decision is in place for a particular country, the data exporting company or organisation must ensure that the transfer is secured with appropriate safeguards. The standard contractual clauses (SCCs) as adopted by the European Commission provide appropriate safeguards according to the GDPR.

Can SCCs still be used after Schrems II?

Article 46 GDPR, which forms the basis for the use of standard provisions, explicitly sets two requirements for transfers to countries to which no adequacy decision applies. Firstly, the exporting company must provide adequate safeguards (through SCCs, for example) and secondly, enforceable data subject rights and effective legal remedies for data subject must be available in the third country.

The SCCs passed the test of criticism in Schrems II. In principle, personal data can still be transferred to third countries on the basis of SCCs. However, the Court emphasises the importance of requirements in Article 46 GDPR concerning the use of standard clauses. Prior to any transfer of personal data, the transmitting company must verify that the receiving country provides the data subjects with enforceable rights and effective legal remedies.

In general, companies are imposed with the almost impossible task of assessing – on a country-by-country and transfer-by-transfer basis – whether recipient countries have legal rules in place regarding the protection of data subjects and their personal data. In addition, it is not clear what criteria should be used in the assessment. The Court does not address this and Article 46 GDPR does not provide any further explanation either. We now know that standard provisions cannot (or no longer) be used as a mechanism for the transfer of personal data to the US because US surveillance legislation prevents this. However, companies are in the dark as to how the surveillance and security legislation in other third countries is to be valued.

The reality is that few companies have sufficient knowledge and resources to properly assess the data protection legislation and surveillance practices of third countries. It is also clear that the European authorities seem to be struggling with such assessments. So far, the European Commission has issued adequacy decisions for only 12 countries, and the adequacy decision for the US has now been invalidated twice.

How can SCCs be used in practice?

The European Data Protection Board (EDPB) has announced to publish recommendations on how to deal with the consequences of Schrems II. In anticipation of these recommendations, the following guidelines may help you to implement the transfer of personal data to third countries on the basis of SCCs.

  • Check that the data importer is able to comply with all the provisions of the SCCs.
  • Carry out a due diligence on the type of data transferred, the categories of data subjects, the processing purposes, the retention period, the type of recipient and the sector to which the recipient belongs.
  • Examine to what extent the legal system of the third country allows public institutions to require disclosure of data and whether data subjects (including foreign data subjects) are aware of the disclosure and are able to take legal action before the courts. Determine the category of data affected by the laws of the third country.
  • Investigate the extent to which the importer is bound by these laws and the likelihood of the importer disclosing or having to disclose the exporter’s personal data to the authorities in the third country.
  • Check whether the data importer has a procedure to inform the data exporter if a government request extends to the data of the data exporter and offers the possibility of opposing disclosure.
  • Check whether the risks posed by national surveillance legislation can be offset by agreeing additional safeguards with the data importer. This could include agreements on the application of proper encryption, the suspension of the transfer of data and the removal of data by the data importer.
  • Make sure you document your choices and agreements. The GDPR requires you to be able to demonstrate that you comply with the GDPR.

Can Binding Corporate Rules be used?

Binding Corporate Rules (BSRs) are, in addition to SCCs, a mechanism for the transfer of personal data to third countries. BCRs are rules specifically designed for transfers of personal data within an international group of companies. Once established and approved, BCRs can only be used for the transport of personal data within the group of companies. A different mechanism must be used for transfers outside the group.

BCRs were not subject of debate in Schrems II. However, if the lawfulness of the transfer of personal data on the basis of SCCs is in question, because the regulations in the receiving third country do not comply with European safeguards, then one may wonder whether transfer to the same country on the basis of BCRs is lawful.

BCRs are drawn up by the group company concerned and must be approved by the competent supervisory authority. SCCs are a product of the European Commission. In practice, the main difference is that the burden of assessing the adequacy of protection measures lies with the supervisory authority when a company uses BCRs, whereas the user of SCCs (re Schrems II) has to make his own adequacy assessment and is responsible if he makes a mistake. This raises the question of how supervisory authorities within the EU deal with pending applications for the approval of BCRs. Approval of BCRs implies that the relevant supervisory authority considers that appropriate safeguards are in place in the receiving third country. This may be a sensitive issue, given the reasoning in Schrems II.

Can the exceptions in Article 49 GDPR be used?

According to the Court in Schrems II, the invalidation of the EU-US Privacy Shield does not create a vacuum because companies can rely on one of the derogations for specific situations (Article 49 GDPR). However, the possibilities to justify transfers using the exceptions of Article 49 GDPR are limited. EDPB has stated (Guidelines 2/2018) that these exceptions should be interpreted restrictively and that the exception should not be made the rule. In addition, the use of article 49 GDPR imposes a heavy administrative burden on the company. The data exporter must justify why each of the mechanisms for the transfer in question cannot be used and why the exception in question is suitable as a basis for transfer in the specific case. The option provided for in Article 49 GDPR therefore does not seem very attractive.

EDPB recommendations on implications of Schrems II

Schrems II shows that the application of and compliance with strict European privacy rules for the transfer of personal data in international traffic is problematic. The EDPB has set up a task force which will hopefully soon come up with recommendations on how to deal with the consequences of the Schrems II decision.

Would you like to know more about this subject? Then please contact our Privacy Desk.

Author

Dutch court rules on the matter of promotion and relegation of football clubs

Dutch court rules on the matter of promotion and relegation of football clubs 1280 513 Ekelmans Advocaten
Eredivisie promotie degradatie
Leestijd: 4 minuten
Lesedauer: 4 Minuten
Reading time: 4 minutes
Expertise:

The Eredivisie had to be terminated prematurely due to the coronavirus crisis. Our lawyers explain the legal aspects of the decision of the Dutch football Association on how to end the season.

Around mid-March the Corona pandemic brutally shut down international football. Two months later the German Bundesliga was the first football competition that made a cautious restart. Matches are being played in empty stadiums with fake fans and fake fan noises. Many other European countries including Spain, Italy and England intend to restart their competitions in the course of June.

In The Netherlands the first football league (“Eredivisie”) had to be terminated prematurely as a result of the corona measures taken by the government. As a consequence it was up to the Royal Dutch Football Association (RDFA) to decide about the outcome of the Eredivisie. Basically there were two options:

  1. to annul the current football season 2019/2020 with the consequence that no promotion and relegation takes place;
  2. to designate a champion and two clubs which are relegated to the second tier league of Dutch football based on the ranking of the Eredivisie when it was shut down. At that time around 75% of the matches had been played. Obviously in case of relegation also two clubs would promote from the second tier league to the Eredivisie.

In the resolution procedure of the RDFA the final decision was preceded by a so-called poll. In this poll all 34 professional clubs were given the opportunity to express their opinion regarding promotion and relegation. The outcome of the poll was pretty clear at face value: 16 clubs voted in favour of promotion/relegation, while 9 clubs voted against it and 9 clubs were neutral.

Decision RDFA followed by proceedings

Subsequently the RDFA decided to annul the current season, meaning that there will be no promotion or relegation. To the opinion of the RDFA there was no overriding majority of the clubs in support of the promotion/relegation scheme and therefore the current season, which could not be finished, was declared null and void. Hence RKC, a team which was trailing the other teams in the Eredivisie by 11 points, escapes from relegation. The other side of the coin is that Cambuur, which was the leading in the second tier league by 11 points, will not promote to the Eredivisie. Cambuur and De Graafschap, being the runner-up in the second tier league, challenged the decision of the RDFA and filed injunctive relief proceedings with the Dutch court. Cambuur and De Graafschap requested the court to set aside the decision of the RDFA and to determine that they would yet be promoted. The court ruled on 14 May and upheld the decision of the RDFA. The claims of the plaintiffs were denied.

The regulations of the RDFA

The Dutch football clubs are members of the RDFA and hence they are bound by the resolutions of the RDFA, unless the clubs could argue that such resolution is invalid and should be annulled. An annulment could be invoked successfully in case there is a breach of statutory provisions or regulations or if the decision is contrary to the rules of reasonableness and fairness. As the relevant resolution belongs to the exclusive authority of the RDFA, the RDFA has a wide margin of appreciation and the court can only marginally review its decisions.

Cambuur and De Graafschap argued that the Professional Football Matches Regulations, more specifically the Promotion and Relegation Regulations, of the RDFA provide that the leader and the runner-up of the second tier league are promoted to the Eredivisie. Therefore, according to the clubs, the RDFA just should abide by the regulations and is not allowed to deviate therefrom. However in the opinion of the court this unfinished and irregular competition creates a special situation where, under the relevant regulations, the Board of the RDFA has the exclusive power to tie the knot as it has done.

Rules of reasonableness and fairness

Cambuur and De Graafschap also argued that the decision of the RDFA violates the rules of reasonableness and fairness. The complaints of the plaintiffs specifically focussed on the poll which was held among the clubs prior to the decision about relegation and promotion. Indeed, the court indicated that the decision-making process in this respect certainly left room for improvement. The procedure was not very clear or transparent, but by holding a poll –instead of a vote- the RDFA still had enough room to make up its own mind and was not bound by the outcome of the poll. According to the court, the fact that certain clubs suffer damages as a result of the decision is not sufficient to argue that such decision is careless or unreasonable and ought to be annulled as a result thereof.

The door to the Eredivisie has not been closed yet for Cambuur and De Graafschap. They may still lodge an appeal although the chances of success are not high in injunctive relief proceedings. At the same time the case will be put to vote at the upcoming general meeting of members of the RDFA. Last but not least the clubs are discussing an appropriate financial compensation with the RDFA.

Difficult to challenge decisions of the RDFA

The verdict of the court shows that it is very difficult for clubs to challenge decisions of the RDFA. By the way, for the purpose of participation in European football competitions the RDFA based its decision on the ranking in the current season, meaning that the leader Ajax and runner up AZ will be admitted to (the qualifying matches for) the Champions League. This solution was accepted by the UEFA. Still, these decisions of the RDFA could have easily gone another way. Our neighbours in Belgium namely came to the exact opposite conclusion based on similar regulations. Club Brugge has been crowned as the champion, whereas Waasland-Beveren will relegate based on the ranking of the current unfinished season. Waasland-Beveren has announced that it will challenge this decision at the Belgian sports tribunal. Story to be continued.

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Possibility digital shareholders meeting and extension of the time limit for the private limited company and association

Possibility digital shareholders meeting and extension of the time limit for the private limited company and association 848 340 Ekelmans Advocaten
online vergadering AvA
Leestijd: 4 minuten
Lesedauer: 4 Minuten
Reading time: 4 minutes
Expertise:

The Temporary Act COVID-19 Justice and Security is intended to enable remote meetings for legal entities and provides for an extension of the term for drawing up the annual accounts.

In response to the coronavirus, an Emergency Act came into force on 24 April 2020 with temporary provisions for all legal entities. The Temporary Act COVID-19 Justice and Security is intended to enable remote meetings for legal entities and provides for an extension of the term for drawing up the annual accounts. The Temporary Act applies until 1 September 2020, but can be extended by the government by two months at a time if necessary. Pim Lieffering explains for you the points of attention of the measures taken with regard to the private limited company (B.V.) and the association (vereniging).

Digital shareholders meeting

At present, many articles contain a provision for electronic voting at a general meeting. However, some articles of association do not provide for the possibility of a digital shareholder meeting. The purpose of the Emergency Act is to allow temporary derogations from legal and statutory provisions concerning the holding of physical meetings and related time limits and sanctions.

On the basis of the Emergency Act, the board may determine that the shareholders’ meeting is temporarily held electronically, regardless of what is provided for in the articles of association. This intention must be stated no later than the notice convening the meeting. If the convocation has already been sent, the manner of meeting can be changed to a digital meeting up to 48 hours before the meeting.

Tip: make sure that the convocation also contains a manual of the digitally chosen meeting system. This allows shareholders to familiarise themselves with the system prior to the meeting.

The following points should be taken into account when holding an digital shareholders’ meeting:

  • The general meeting can be followed via a live video or audio link.
  • The management board can determine that the voting right can be exercised (exclusively) by means of an electronic means of communication. In addition, the Board may determine that votes cast electronically no more than 30 days prior to the general meeting will be treated the same as votes cast at the time of the meeting. This must, however, be stated in the notice convening the meeting.
  • The shareholders must be given the opportunity to ask questions in writing or electronically about the items on the agenda no later than 72 hours prior to the meeting. In the event that a convocation for the shareholders’ meeting has already been sent and the management board has exercised its right to stipulate no later than 48 hours prior to the meeting that the meeting is to be held exclusively by electronic means, the term is 36 hours.
  • Questions posed by shareholders must be answered during the meeting at the latest, thematically or otherwise. The answers must then be posted on the website of the private limited company or association or made accessible to the shareholders via an electronic means of communication.
  • The management board must ensure that shareholders can ask further questions during the meeting by electronic means or otherwise, unless the chairman of the general meeting determines that this cannot reasonably be asked in the light of the circumstances.
  • If the above provisions on asking questions during the meeting are deviated from, the resolutions passed at the meeting will still be valid. The legal validity also remains in the event, for example, of a faltering connection at one of the shareholders.

The rules described above for the benefit of shareholders also apply to the members’ meeting of the association.

No postponement of the general meeting

The board of directors of the private limited company or the association does not have the possibility to extend the term for holding a general meeting. The Emergency Act does give this possibility for the public limited company (N.V.).

Extension of term for drawing up annual accounts

Usually the board of directors of the private limited company prepares annual accounts within five months after the end of the financial year. This period may normally be extended by the general meeting by a maximum of five months due to special circumstances. A possible extension by a maximum of 6 months applies to the association.

On the grounds of the Emergency Act, the board of the private limited company may extend this period by a further maximum of 5 months. The board of the association may extend the usual period of 6 months by a further maximum of 4 months.

Tip: If the articles of association give you the option of holding a digital shareholders’ meeting, first try to obtain an extension via this shareholders’ meeting. This will allow you to make maximum use (if necessary) of the possible extension up to 10 months. If the board makes use of the possibility under the Emergency Act, the general meeting can no longer make use of its power of extension.

Directors not always liable in case of late filing of annual accounts

If directors are late in filing the annual accounts and the company subsequently goes bankrupt, the directors can be held personally liable for the shortfall of assets. At such a time, there is a presumption that the mismanagement is an important cause of the bankruptcy.

The Emergency Act relaxes this strict regulation. If it is established that the late filing is due to the consequences of the outbreak of COVID-19, the directors are not directly personally liable under the law. This will be assessed on the basis of the circumstances of the case and must be proved by the Board.

This regulation applies for 3 years until 1 September 2023. In the explanatory notes, the reason given for the date is that, in the event of bankruptcy, a claim can be filed on the grounds of improper performance of duties in the period of three years prior to the bankruptcy.

The board of directors of the private limited company must, however, comply with the accounting requirements of Article 2:10 of the Dutch Civil Code, despite the COVID-19 virus. However, the presumption of proof still applies in this respect.

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Privacy: is a Dutch employer allowed to check his employees for corona?

Privacy: is a Dutch employer allowed to check his employees for corona? 1920 1280 Ekelmans Advocaten
medische gegevens
Leestijd: 4 minuten
Lesedauer: 4 Minuten
Reading time: 4 minutes
Expertise:

May sensitive personal data, such as medical data, of employees who are (potentially) infected with Corona be used? We will briefly list the most important principles that currently apply in the Netherlands.

May sensitive personal data, such as medical data, of employees who are (potentially) infected with Corona be used?

Also during the Corona crisis the dilemma of the General Data Protection Regulation is evident. On the one hand, the AVG was not designed to create obstacles in the fight against the virus. On the other hand, the AVG does seem to do so in practice. In principle, the AVG prohibits the processing of data relating to health, among other things. Does this complicate the guidance of employees and hinder rapid intervention by employers to prevent further spread of the virus in the workplace?

The European Data Protection Board, the European privacy supervisor, emphasised in a recent statement that the AVG provides foundations for employers to be allowed to process data about Corona infections in the context of combating a pandemic. According to the EDPB, employers can rely on the performance of a task in the area of public health or the protection of vital interests.

However, the Dutch privacy supervisor, the Autoriteit Persoonsgegevens, has a very strict view on the use of health data in an employer-employee relationship. Employers may not ask the employee for the reason for his sickness report, nor may company doctors in principle share health data about the nature of the employee’s illness with the employer.

How can the EDPB’s statement be reconciled with the strict opinion of the Dutch privacy supervisor? Although the EDPB seems to leave the door ajar for the restrictive processing of health data in connection with Corona, it lacks a concrete translation into (Dutch) practice.

Below we will therefore briefly list the most important principles that currently apply in the Netherlands.

As an employer, are you allowed to check for Corona?

Also in the context of the Corona crisis, the Dutch privacy supervisor maintains for the time being, and in general, the position that the employer may not check the employee for Corona, and may not (even) ask him whether he has Corona.

As a Dutch employer, what are you allowed to do?

Although the privacy rules are still strict, the employer does have some other (limited) resources at its disposal that can be used to limit the consequences of Corona on the work floor as much as possible.
For example, the employer is allowed to:

  1. Send home an employee with a cold or flu symptoms, even in case of doubt, or to indicate that he should not come to work;
  2. Ask the employee to keep an eye on his health and, if necessary, temperature himself (also during work);
  3. In case of health problems, insist that the worker contacts the company doctor at an early stage;
  4. Ask the company doctor to have the employee checked (by the municipal health service) for Corona.

Exception for special categories of employers?

For care workers in hospitals and nursing home institutions, however, deviating measures now apply when they contribute to ensuring care for patients and older and vulnerable persons. For these sectors, the Dutch government already allows for more extensive control of employees on Corona. In addition, the testing policy has recently been broadened. Employees in care for the disabled, home care, youth care and the mental healthcare can also be tested.

These measures are in line with the aforementioned statement of the EDPB and are in line with the GDPR, as it stipulates that in the interest of the safety and quality of care, the vital interests of vulnerable others and the management of the institutions concerned, the processing of health data by the employer is permitted.

At this stage, the Dutch privacy supervisor does not comment on exceptional situations.

What to do if the employer knows that an employee is infected?

In the context of both the duty of care as an employer and in the public interest, you may report to the other employees that an employee has been infected, as long as you do not tell them who that employee is.

What does all this mean in practice?

Although the employer’s ability to process health data is still limited, except in exceptional situations, he does have some means at his disposal to limit Corona related risks in the workplace. For example, the employee may be required to carry out active self-monitoring and the employer may exclude the employee from the workplace if only on (possible) suspicion of Corona.

In addition, however, the company doctor continues to play an important role. It is therefore recommended that employees be advised to consult the company doctor themselves in the case of minor health complaints alone. Furthermore, the employer can ask the company doctor to periodically (by telephone) monitor the state of health of healthy employees, and ask him to monitor sick employees for Corona symptoms and, if necessary, have them tested. In this way, a suspicion or confirmation of a Corona infection can be identified as quickly as possible and the risk of further spread on the work floor can be limited.

Incidentally, the government’s Corona measures are still being developed. We will therefore monitor the privacy related changes for the employer and continue to share them with you.

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Client praise for Ekelmans & Meijer in Legal 500

Client praise for Ekelmans & Meijer in Legal 500 700 468 Ekelmans Advocaten
Legal 500
Leestijd: 2 minuten
Lesedauer: 2 Minuten
Reading time: 2 minutes
Expertise:

Legal 500 has announced its rankings for 2020. In this leading guide to the international legal profession, Ekelmans & Meijer is recognised as one of the top firms in the field of Insurance Law. We are proud of this recognition.

Rankings Legal 500 and client recommendations

Legal 500 has been assessing the strength of law firms in more than 100 jurisdictions worldwide for over 30 years. The Legal 500 rankings are based on the recommendations of clients provided to the Legal 500 researchers. We thank our clients for sharing their trust in our Insurance team! .

Legal 500 on our Insurance team:

Ekelmans & Meijer Advocaten is ‘always a pleasure to work with'[..]. The group is particularly active in the healthcare sector and recently represented health insurance company De Friesland Zorgverzekeraar in an appeal regarding the remuneration healthcare insurers must pay for services rendered by medical professionals with whom they have not concluded an agreement on their fees. ‘Enthusiastic and excellent insurance lawyer’ Jan Ekelmans is a key name to note, along with practice head Hanco Arnold and ‘highly professional and very capable attorney’ Astrid van Noort.

Legal 500 also quotes the following statements from our clients:

‘[..] Astrid van Noort who handled six claims for us. She strikes me as a highly professional and very capable attorney in her field of expertise.’

‘Astrid van Noort: competent, open, friendly, easily approachable.’

‘We especially like to work with Jan Ekelmans. Due to his keen wits and social skills we don’t need many words for him to understand us completely. We don’t know anybody else who is able to assess a large case as quickly as he does. We also very much appreciate the outstanding work of Hanco Arnold and Astrid van Noort. Hanco Arnold especially in cases that concern fraud and Astrid van Noort for cases that concern privacy matters. Both lawyers are able to take on more then their field of expertise as mentioned before.’

‘Jan Ekelmans is an enthusiastic and excellent insurance lawyer; friendly, quick to respond, highly specialised and pragmatic. I can highly recommend Jan Ekelmans to others.’

‘They have a great deal of knowledge and work with particular care.’

‘They work hard. They are extremely careful. They do what they promise.’

‘It is always a pleasure to work with Ekelmans & Meijer.’

‘We use them as a health insurer for advice and litigation and they are competent and know the market.’

‘They are specialised and have a lot of knowledge in-house.’

‘They are objective – if we need to settle then that is what they will advise us to do.’

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Support measures for companies in effort to tackle the coronavirus crisis

Support measures for companies in effort to tackle the coronavirus crisis 1707 2560 Ekelmans Advocaten
Steunmaatregelen coronacrisis
Leestijd: 5 minuten
Lesedauer: 5 Minuten
Reading time: 5 minutes
Expertise:

The Dutch government has taken various economic support measures to reduce businesses’ liquidity problems due to the coronavirus. We have compiled an overview of the measures for you.

Because of the coronavirus, on 12 March 2020 the Dutch government took various measures aimed at reducing businesses’ liquidity problems. On 17 March 2020, the government announced additional economic support measures for companies in the form of the Jobs and the Economy Emergency Package (Noodpakket Banen en Economie). We have compiled an overview of the measures for you.

Reduction of working hours / Temporary Emergency Bridging Measure for Maintaining Employment

The reduction of working hours scheme (werktijdverkorting, WTV) has been withdrawn with immediate effect. Any exemption granted under this scheme remains in force. The Temporary Emergency Bridging Measure for Maintaining Employment (Tijdelijke Noodmaatregel Overbrugging voor Werkbehoud, NOW) will be made available as soon as possible. This scheme lets employers obtain financial compensation more quickly in order to prevent job losses. The scheme has a different basis for the award of financial compensation. Whereas the WTV scheme was based on the loss of workforce capacity, the NOW scheme applies in the event of a loss of revenue. The scheme does not affect employees’ rights under the Unemployment Insurance Act.

Under the new scheme, a business that expects loss of revenue of at least 20% can apply to the Employee Insurance Agency (UWV) for compensation for three months to cover up to 90% of the wage bill. This period can be extended once only for a further three months. The Employee Insurance Agency will make an advance payment of 80% of the requested compensation.

This will allow the company to continue paying its staff. The compensation is subject to the condition that no employees may be dismissed for commercial reasons during the granted period of the compensation and the employer must continue to pay the employees’ wages. You can apply for the compensation for a decline in revenue to take effect from 1 March. It is an advance payment; the compensation amount will be finalized retrospectively and you may be required to pay back the compensation.

Temporary income support for freelancers and SMEs

For a period of three months, self-employed people who run into problems because of the coronavirus crisis can obtain additional income support to cover the cost of living and/or a loan for operating capital through an accelerated procedure. The income support makes up their income to the guaranteed minimum and does not have to be repaid. There is no equity test or test of the partner’s income.

The scheme is operated by the municipalities. The aim is to complete the application process within four weeks of the initial application.

Unemployment insurance premium differentiation

As of 1 January 2020, employers pay a low unemployment insurance premium for permanent contracts and a high unemployment insurance premium for flexible contracts, by virtue of the Balanced Labour Market Act (Wet arbeidsmarkt in balans, WAB). The employer must pay the higher unemployment insurance premium retrospectively for permanent employees if they have worked overtime for more than 30%. As this can have undesirable effects in sectors such as healthcare where a great deal of overtime is currently required due to the coronavirus, the measure will be amended.

Furthermore, the period that employers have to document a permanent employment contract in writing and show that the employee was employed on a permanent basis as at 31 December 2019, thereby meeting the conditions for the low unemployment insurance premium, has been extended from 1 April 2020 to 1 July 2020.

SME Credit Guarantee Scheme

In the SME Credit Guarantee Scheme (Borgstelling MKB-kredieten, BMKB), the government offers a partial guarantee for companies that want to take out a loan but are unable to offer the financer in question sufficient guarantees.

The scope of the BMKB scheme has been extended as of 16 March. The scheme is intended for companies with 250 or fewer employees (FTEs) and annual revenue of up to 50 million euros or total assets of up to 43 million euros.

In the current scheme, the guaranteed credit is 50% of the credit provided by the financer. The guaranteed credit in the BMKB scheme is being increased from 50% to 75% for a maximum of two years.

The self-employed without employees can also make use of the scheme if they have a business in the form of a sole tradership, a partnership (VOF) or a private limited company (BV).

Business Financing Guarantee

SMEs and larger companies can make use of the Business Financing Guarantee scheme (Garantie Ondernemersfinanciering, GO). A 50% guarantee is provided for bank loans and bank guarantees. The maximum per company has temporarily been increased to 150 million euros. The scheme is operated through the banks.

Tax measures

Affected businesses can request a deferral for tax payments without providing reasons. The Tax and Customs Administration will then stop tax collection with immediate effect. This applies to income tax, company tax, wage tax and VAT. The requests will be considered substantively at a later date. Among other measures, the late payment interest has been reduced to 0.01% and no default penalties are being imposed.

Interest rate discount for new companies

Microcredit provider Qredits has introduced a temporary crisis measure. Small-scale businesses affected by the coronavirus crisis are being offered postponement of repayments for a period of six months, with the interest rate automatically being reduced to 2% during that period.

Emergency assistance

A compensation scheme will be introduced for businesses in sectors that have been hit hard directly by the measures the government has taken to fight the coronavirus. Examples are the restaurant and catering sector and the events industry. A requirement for compensation is that the company must have physical premises outside the entrepreneur’s home. These companies will soon receive a donation of 4000 euros. The applicable conditions for the scheme are currently being worked out.

Banks

The banks are also taking measures. Smaller companies with loans of up to 2.5 million euros can obtain a postponement of their loan repayments for six months. This agreement was made by ABN AMRO, ING, Rabobank, Volksbank and Triodos Bank, as announced by the Dutch Banking Association (Nederlandse Vereniging van Banken, NVB) on 19 March.

The banks are still discussing measures for larger companies with loans of more than 2.5 million euros. “This is the minimum scheme, and banks can offer their corporate clients additional tailored solutions,” says the Dutch Banking Association.

Legal advice

If you require legal advice on the consequences of the coronavirus for your business operations, please contact Rob Kossen on +31 6 29 03 44 71.

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