Category Archives: Dutch lawfirm

Dutch Home Owners Association gets tougher rules

New rules for the Dutch Home Owner Association are meant to improve the operation or the Netherlands HOA.

Dutch Home Owners Association

Home Owners Association in the Netherlands

The Dutch Owners’ Association or VvE ensures the property is well maintained and insured and deals with communal expenses. If you buy a apartment Netherlands you are automatically a member of this Owners Association and bound to the applicable rules (reglement). The Association of Owners in the Netherlands is responsible for the communal parts of the building like the halls, roof, pipes, walls, stairs, etc. You pay a contribution to the VvE for maintenance, insurance, communal expenses.

New rules apply as per January 1 2018 on the Dutch Owners Association

  • a minimum amount for large scale maintenance should be reserved by the VvE in a separate account
  • the VvE should have a large scale maintenance plan
  • large scale maintenance plan should stipulate the amount to be reserved
  • works to bed and should be budgeted and planned to be done within 10 years
  • the VvE can obtain an loan for maintenance work.

Home Owners Association can obtain a loan

The VvE can obtain a bank loan or a loan with a special Fund for large scale maintenance works. The owner of an apartment is only liable for his share in the loan. When the house is sold then the debt  and/or liability of the home owner will be transferred to the new  owner. The notary who deals with transfer of property in the Netherlands will specify this in the deed of transfer.

Manager of Dutch Association of Owners 

The manager (beheerder) of the owners association will conduct the management over the communal sections and the communal property. Decisions of the owners association are taken in meetings, the assembly of the VvE, to be conducted according to the applicable rules. The meetings will take place at least within six months after the end of the financial year. Assemblies can also be arranged as often as necessary. Decisions by the meeting of owners are taken by majority vote. For specific decisions, like changing the deed of the division (splitsingsakte), or not reserving funds for maintenance,  4/5 majority is necessary. Also a separate set of HOA rules may apply (huishoudelijk reglement).

 

Leave a comment

Filed under Dutch Housing Law, Dutch lawfirm, Regulatory Compliance Netherlands

Employer’s liability and asbestos claims

An employer can be sued in the Netherlands in case an employee has been exposed to asbestos in his working environment. Dutch Class Actions against employers have been enabled by recent legislation.

Dutch Law Firm Employers Liability Asbestos

Asbestos claims and class actions

Dutch Law Firms are up for a new challenge. Dutch Courts have expanded the scope of employer liability with regards to asbestos lawsuits.  Employer liability may therefor rise in the Netherlands for the exposure of employees to asbestos, chemicals or diesel fume. My law firm provides risk advisory services to manage risk and regulatory compliance requirements.

Old buildings and asbestos

Asbestos can still be found in a number of workplaces and several professions in particular have a greater likelihood of exposure. Especially old (office) building and ships very also contain dangerous asbestos. Old office buildings may nor example hold asbestos in roofing, floor tiles, fireproofing material, and pipe or boiler insulation. Contractors should take special care when employees work in old constructions.

Asbestos Legislation and products

Lawyers need to check the relevant legal definition of asbestos, I refer to European Regulation (EC) No 1907/2006 (as amended) and Directive No 2009/148/EC, which define asbestos (for the purposes of the respective Regulation and Directive), as the fibrous silicates, such as Actinolite, CAS No 77536-66-4; Asbestos grunerite (amosite) CAS No 12172-73-5; Anthophyllite, CAS No 77536-67-5; Chrysotile, CAS No 12001-29-5; Crocidolite, CAS No 12001-28-4 and Tremolite, CAS No 77536-68-6.  Under art. 4.37(a) of the Dutch Working Conditions Decree and art. 1(b) of the Product (Asbestos) Decree, asbestos is defined in a similar way.

Conformity Statement

For manufacturers it is prudent and proper risk management to issue conformity statements also contain representations regarding your products compliance with regulations surrounding asbestos content or chemical substance, even if not obliged by law.

Asbestos in buildling Dutch Lawyer

Netherlands Regulation on Asbestos

In the Netherlands, a legal definition of asbestos mirroring the definition under the Regulation and Directive is to be found in the implementing legislation of the aforementioned Directives No 1999/77/EC and 2009/148/EC, the Product (Asbestos) Decree of 17 December 2004  and the Netherlands Working Conditions Decree  respectively. The Dutch Legislation on asbestos is spread out is several statutes. Feel free to consult me or one of our asbestos lawyers in our law firm  if you have any questions.

Working Conditions and Asbestos Fibres

OK, still there? Products containing asbestos (asbesthoudende producten) are defined as “products containing one of the aforementioned fibrous silicates” (art. 4.37(b) of the Working Conditions Decree). Asbestos fibres (asbestvezels) are defined (for the purposes of the Working Conditions Decree) as asbestos particles longer than 5 micrometres, less than 3 micrometres wide and with a length to width ratio of more than 3:1 (art. 4.37(c) of the Working Conditions Decree). The Product (Asbestos) Decree further distinguishes between “serpentine asbestos” (chrysotile) and “amphibole asbestos): actinolite, amosite, anthophylliet. Please call for anny liability issues under Dutch Law you may encounter.

European ban on Asbestos

In the European Union there is a complete ban on asbestos. This ban has been implemented by a succession of European directives dating back to 1983. Directive 83/478/EEC implemented a ban on marketing and use of asbestos fibres; crocidolite, chrysotile, amosite, anthophyllite, actinolite and tremolite, and products containing these substances (subject to certain exceptions for products containing crocidolite) by adding them to the list of “substances and preparations” banned from being placed on the market or used pursuant to Directive 76/769/EEC.

Asbestos Laws in EU Member States

The European rules regarding asbestos are contained in directives which have to be implemented by the Member States in their national legislation. This means that different rules may apply in different Member States. The initial partial ban was extended by successive directives,  including Directive 1999/77/EC, which removed the exceptions for crocidolite with effect from 1 January 2005. Directive 76/769/EEC was replaced by Regulation (EC) No 1907/2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH) and establishing the European Chemicals Agency (the “Regulation”). The Regulation only applies to products “containing these fibres added intentionally”.

 

Leave a comment

Filed under Dutch lawfirm, Liability Netherlands, Regulatory Compliance Netherlands

Dutch gambling practice in violation with EU-law

Dutch Gaming Licenses

Dutch Gaming Lawyers have challenged  clients to enter the Dutch Market. Licenses for lotteries are still granted to Dutch Lotteries only. The Netherlands have not opened up the gaming market. The Bill for Online Gaming should comply with the goals of the European Treaty. It’s strange that online lotteries do not yet qualify for licenses, while all other forms of gambling such as casinos and sports betting are provided for in the draft bill on remote gambling. Read this update on the Dutch Gaming Licenses.

Dutch online gaming in violation with EU-law

At a European level, the uniform gambling policy has not been harmonized. In the absence of secondary legislation, the General Treaty provisions, The Treaty On The Functioning Of The European Union (TFEU) apply. According to settled case-law of the Court of Justice of the EU (ECJ), lotteries and other forms of gambling are regarded as services. So the rules on freedom to provide services are applicable

Freedom to provide Gaming Services in the Netherlands

Article 56 TFEU requires the removal of any restriction on the freedom to provide services which means that the activities of the provider established in another EU Member State and legally perform similar services are prohibited, even if this restriction applies without distinction to domestic Providers and providers from other Member states. EU Member States may make limitations. It must be examined on grounds of justification. The treaty gives the Member states discretionary power regarding the organization and regulation of gambling. Member States themselves decide how they want to protect their citizens against negatively impacts on remote gambling. However, this discretionary power is not absolute.

European Court on gaming law

The ECJ has set limits to the free movement of services in particular gambling. For example, a Member State may impose restrictions only if it pursues a legitimate objective for the public interest. These measures should be proportionate, and appropriate to achieve the stated goal and also necessary, which means that the Member State may not take more stringent measures than is necessary to achieve the objective.

Online gaming Draft

In the current draft bill which went through the Dutch Parliament, online lotteries are excluded, the question is whether this restriction is in accordance with European law and justified. According to the explanatory memorandum, there is no substantial demand for online variants of the classic lotteries, so according to the Dutch government, there is no need to regulate this option by law.  We do not believe this is sound reasoning by the Dutch Authority. Foreign Gaming Companies should apply for licenses to proof the contrary.

Fair restrictions on gaming and betting?

In the draft Bill, the Netherlands is briefly aiming at three general goals.

  • Fighting against fraud
  • Fighting gambling addiction
  • Consumer protection

The above goals constitute a legitimate reason for the primary purpose of the draft bill, the design and layout of the existing demand for a legal and safe offer of online gambling. But in addition to this objective, the draft bill also seems to pursue economic objectives. This is not usual, according to settled case-law on gaming law of the ECJ, financial advantage is no more than a mere favourable side effect of the measure.

Proportionality and necessity in Dutch gaming regulation

The exclusion of online lotteries in the draft bill is based on no or hardly any further assumption that there is no sufficient demand for online lotteries. See the Explanatory Memorandum; there is no known question for online variants of classic lotteries that require canalization. This is a remarkable passage, where a Member State chose to impede a certain freedom, the burden of proof of justification for this barrier is indeed on the Member State. The Netherlands must therefore demonstrate that there is no or not enough question from a consumers point of view. This requirement weighs heavier as it determines that the market is almost liberalized for online gambling except for online lotteries. The only motivation that the consumer demand for online lottery products is low is insufficient and relates to further explanation. On the other hand, current Dutch licensed lotteries offer online products. This proves there is a demand for online lotteries in the Netherlands market.

Flaw in Dutch Gaming Law

It’s strange that online lotteries do not yet qualify for licenses, while all other forms of gambling such as casinos and sports betting are provided in the draft bill on remote gambling. That is not consistent legislation. If the government continues to assume it’s position, then the following situation will occur. What actually happens is that the illegal offerings with regard to online lotteries are becoming more attractive to the consumer, something that the Dutch government is trying to prevent. The constraint, as it is now, is insufficient to achieve the stated goal, so not justified in the current form. So the current legislation and the draft Bill do not take care of the business. The exclusion of remote gaming games in the draft bill seems not only inappropriate but also not necessary to achieve the stated goals. Awarding a license for online lotteries to foreign providers is, after all, a less extensive restriction than the currently proposed exclusion.

Lotteries should apply for licenses with Dutch Gaming Authority

Mark van Weeren has suggested a test case to challenge the restricted trade practices the Netherlands. Please call Mark on our office number to discuss to legal challenge for a license on the Dutch Gaming Market. Despite the wide discretion of the Dutch state, the exclusion of online lotteries as now underlined is an unjustified barrier to the free movement of services ex art. 56 TFEU. Betting Companies an Lottery Business should apply for Dutch Lottery License to open up the market. The online bill is still not through the Dutch Senate. For online gaming consultation with the gaming Authority is possible. Please get in touch with me if you wish to discuss any of this.

Leave a comment

Filed under Dutch lawfirm, Gaming licenses Netherlands

Compliance and Data Protection Regulation (GDPR)

With the GDPR the work of compliance and data officers will not become sexier. Companies in the EU area and their lawyers should work on the compliance with the new requirements the General Data Protection Regulation (GDPR). In force as per May 25, 2017. My lawfirm has prepared clients for the GDPR requirements.

Legal Advice on GDPR Data Protection

Personal Data in Europe under GDPR

Companies using personal data of European citizens should work on the compliance with the new GDPR requirements. Companies should have privacy notices and policies and analyse the legal basis on which personal data is used. Some of the issues the GDPR brings on:

  • companies outside the EU targeting consumers in the EU will be subject to the GDPR
  • data processors have direct obligations to comply with
  • data controllers and processors must appoint a Data Protection Officer (the DPO)
  • a written record of processing activities should be maintained carried out on behalf of each controller
  • consent to processing of someone’s personal data must be as easy to withdraw as to give and must be ‘explicit’ for sensitive data
  • data subject will have a right to object if personal data is processed for direct marketing
  • data controllers must notify most data breaches to the DPA; Fines of up to 4% of total turnover can be imposed.

Regulatory and compliance on data processing has gone to the next level with the GDPR. Compliance and data officers will have extra work to do.

Leave a comment

Filed under Dutch Law General Conditions, Dutch lawfirm, Regulatory Compliance Netherlands

Product liability claims in the Netherlands

The Dutch market is very challenging for new products. Always check the legal framework of the Dutch market. Therefor I will give a brief introduction to Dutch Product Liability.

Dutch law on Product liability

Apart from general negligence claims under Dutch law, a producer could also be exposed to claims made under art. 6:185 of the Dutch Civil Code, the provision for product liability in the Netherlands. Article 6:185 is an implementation of Council Directive 85/374/EEC of 25 July 1985 on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products.

online-transactie

European Product Liability

My comment may also be taken as an indication of the position in other EU Member States, however it is expressly noted that these principles may have been implemented differently in other EU member states. For any claim or defense regarding product liability it is advisable to consult a Dutch attorney timely to discuss risks and caveats under Dutch law.

Procedure on defective product

Under article 6:185 of the Dutch Civil Code, a producer is liable to consumers (both the buyers and third parties) for any loss or damage caused by a defective product if there is damage within the meaning of article 6:185 of the Dutch Civil Code, unless the manufacturer can rely on certain exceptions set out in the same article. A product will be “defective” within the meaning of article 6:185 if it “does not provide the safety which a person is entitled to expect”; relevant considerations include the way the product is presented, reasonable expectations of its use, and the time when it was put into circulation. The burden of proof under Dutch law is on the claimant to prove that the presence of 1) damage, 2) defect, and 3) a causal relationship between the damage and defect of the product.

Online e-contract

Producer and Dutch Liability

Article 6:186(1)(b) Dutch Civil Code provides that a product will be defective if it fails to provide the safety that one might have expected of it, taking all circumstances into consideration. Article 6:185 provides for liability on the part of the “producer”. For the purposes of this article, a producer means a manufacturer of a finished product or component(s) of a product, a producer of raw materials, an “own brander” (anyone who by putting his name, trademark or other distinguishing sign or feature on the product holds himself put as its producer), or an importer into the EU; and, in case a producer cannot be identified: the supplier. Given the extremely broad definition of “producer” for product liability purposes, we are of the view that the Company (or its affiliates) will easily fall under the definition of the Product’s producer.

Leave a comment

Filed under Dutch lawfirm, Liability Netherlands, Sell Product in the Netherlands

How to sell your product in the Netherlands?

Set up shop in the Netherlands

I often receive mail from manufacturers interested to sell or promote their product in the Netherlands. I’m always willing and able to provide foreign companies with the necessary information for marketing the product in the Netherlands. Of course this depends on the nature of the product for the Netherlands.
online-transactie

Compliance Dutch Law

A compliance test for the product in the Netherlands at least deals at least with the following matters:

  • Compliance with Dutch law (and, to the extent applicable, EU law) regulatory/licensing requirements for the import and distribution of the Product in the Netherlands;
  • Procedures for import in the Netherlands and necessary permits if any
  • Risks of potential (civil) liability flowing from the use of its Product in the Netherlands.

Importing products in the Netherlands

Import regulations for the Netherlands may vary depending on whether or not the client plans to import the Products for direct distribution to consumers or whether they will instead be sold to distributors within the Netherlands. Of course I can help you out with contracts with Dutch distributors.

Leave a comment

Filed under Dutch lawfirm, Patent application Netherlands, Sell Product in the Netherlands

Short term rent restrictions unlawful?

Dutch Airbnb rentals get tough treatment

Short-stay rentals typically appear to be regulated at a municipal/regional level and thus differing regulations can be seen within a given country. The serious increase of short stay rental activity  in recent years, cities around the world are looking at ways to reform their regulations or have already taken actions to do so.

short stay rental

Scruffy Dutch law discourages landlords

Because the traditional regulatory frameworks were largely designed without these new additions to the short-term accommodation market in mind, there is a danger that they will be ill-adapted to application to Airbnb-style providers or that such providers may entirely fall outside of the scope of the regulatory framework. As a lawyer focused on human rights article 1 EP (European Protocol) comes in the picture, the right to property, in particular the right to derive profit from property recognised by the the European Court in the case Hutten-Czapska vs Poland.

A more social consideration is also used by the Court:
Property, including privately owned property, has also a social function which, given the appropriate circumstances, must be put into the equation to determine whether the fair balance has been struck between the demands of the general interest of the community and the individual’s fundamental rights.

Ban on airnbnb rentals unjusified

In my Dutch law firm we notice a increasing call from property owners that do not accept de local restrictions e.g. in the City of Amsterdam.  To my opinion the balance has gone to far in the protection mode and the basic right of the landlord to rent including short stay rent is infringed.

Leave a comment

Filed under Dutch Contract, Dutch Housing Law, Dutch lawfirm, Regulatory Compliance Netherlands