Corporate

Adriaan de Buck will retire from his legal practice

Adriaan de Buck will retire from his legal practice 2560 1804 Ekelmans Advocaten
Adriaan nieuwsbericht2
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We are very sorry that due to his illness, Adriaan de Buck will retire from his legal practice at Ekelmans Advocaten on September 1st 2022. We are most grateful to him for his expert and enterprising practice as a lawyer and partner of our firm.

Clients and international partners have experienced Adriaan’s expertise and sharpness in transactions and legal procedures as well as his sympathetic personal approach.
We thank Adriaan for his power to unify, humor and collegiality. We cherish our friendship.

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Ekelmans Advocaten appoints Daan Spoormans as partner

Ekelmans Advocaten appoints Daan Spoormans as partner 2085 2441 Ekelmans Advocaten
Daan Spoormans partner
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Daan Spoormans has been appointed partner at Ekelmans Advocaten as per 1 January 2022. Daan specialises in corporate law and contract law. He assists companies and insurers in complex disputes about commercial contracts. Daan also assists directors who have been accused of incorrect management.

Daan has been working at Ekelmans Advocaten since 2008. In recent years, he has built up a flourishing international practice. Due in part to his bilingual background (Dutch and German), Daan also has many clients from German-speaking countries.

Partner Corporate/German Desk Robert Kütemann: “Daan’s partnership really strengthens our corporate practice. Daan has a strong legal and strategic insight. For many years, he has made an important contribution to the corporate team, which is highly valued by clients.
Since Daan’s clients include both companies and insurers, his appointment fits in perfectly with our positioning as an Insurance & Corporate firm. We are very pleased to appoint Daan as a partner.”

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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
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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
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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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Corporate

Corporate 1200 801 Ekelmans Advocaten
Ekelmans Advocaten cliënt uitzicht haven

For all your corporate law questions

Corporate law questions can arise at all stages in a company’s life cycle. Whether you are deciding what legal form to use, are negotiating a partnership, or are faced with a dispute between the shareholders, you expect your lawyer to provide a carefully considered, pragmatic solution.

Ekelmans Advocaten gives advice and conducts litigation in corporate law in all its facets. The links between our transactions practice (Mergers & Acquisitions) and litigation practice (Corporate Litigation) allow us to give you maximum support around the negotiating table and in the law courts.

Our corporate lawyers are well versed in domestic and cross-border transactions. We have considerable experience with assisting in share transfers, controlled auctions, asset transfers and collaborative arrangements between companies.

We perform all tasks as required, from due diligence and conducting the negotiations to drawing up the transaction and financing documentation. Where necessary we draw on other areas of expertise within our firm, such as our specialists in employment law, employee participation, pensions and insurance. We also work with tax consultants who have specific expertise in such transactions, including in an international context.

A wide range of notable cases

Our Corporate Law team works for a broad spectrum of clients. As a result, we have been involved in a wide range of notable cases, such as restructuring a listed fund, the takeover of a life insurance company and the development by a major bank of a new financial product.

Resolving disputes in corporate law

In addition to advice, litigation is part of our core business. We have substantial experience in dispute resolution in corporate law. For example, we represent clients in issues concerning directors’ liability. We also handle disputes following takeovers and aborted negotiations, and cases relating to the buyout or expulsion of shareholders that come before the Netherlands Enterprise Court at the Amsterdam Court of Appeal. We have been involved in high-profile, challenging cases such as a claim for millions of euros against a major law firm, a lawsuit against an international trust company concerning directors’ liability and a shareholders’ dispute involving a recycling group.

Sports law

A particular area of expertise for our Corporate Law practice is sports law. Elite professional sport is big business; there is often a great deal at stake in terms of money and reputations. Our lawyers are specialised in the various legal disciplines that play a role in sports law.

A carefully considered, pragmatic solution

Services

If you have a query or would like to know more,

feel free to contact us. We will be happy to help you. If you fill in the contact form, we will phone back. Of course you can also contact one of our specialists directly

Corporate

Team of specialists

Our lawyers work in partnership with you, in compact teams of specialists. They know your industry and have the expertise that lets them be quick and to the point in advising you and helping you find a solution.

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
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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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Georg van Daal

Georg van Daal 998 889 Ekelmans Advocaten
Georg van Daal
Leestijd: 2 minuten
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Reading time: 2 minutes
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On Tuesday, 20 November 2018, we heard the sad news that our firm’s much-loved partner and colleague Georg van Daal passed away in the night of 19 November 2018.

On Tuesday, 20 November 2018, we heard the sad news that our firm’s much-loved partner and colleague Georg van Daal passed away in the night of 19 November 2018.

Georg became a partner in the Corporate Law practice group of Ekelmans & Meijer in 2014. He played a significant role in our partnership and in making our firm more international.

Georg was an eloquent and witty lawyer and he had wide interests, which he continued to develop. At Leiden University, he studied not just Dutch law but also Chinese language and culture, spending some time at the University of Wuhan in China. in 2008, he obtained his PhD at Erasmus University Rotterdam with a thesis on corporate law.

He was involved in the community and social causes, assisting start-ups pro bono and working to specifically help people with diverse (cultural) backgrounds.

Georg worked for a wide range of national and international clients, covering the entire field of corporate law. He was also very active in our international network Legalink; he founded the Legalink Academy in 2017 and recently gave a talk on cryptocurrencies in Mexico. He made contacts around the world with verve.

He published a great deal and wrote five books. Georg was sharp, in both his analyses and his comments. That was evident in his monthly columns for his fellow lawyers in Advocatie.

We remember him as a committed and socially minded person who was always interested in the perspective of his clients and the associates at the firm. He found proper communication and “sharing” things important.

We are grateful to him for everything he has done for us and our clients. We will miss him

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