Tag Archives: Netherlands

A Foundation in the Netherlands

Dutch trust explained

A foundation (stichting) in the Netherlands is defined by law as “a legal person created by a legal act which has no members and whose purpose is to realize an objective stated in its statutes using capital allocated to such purpose”. The foundation is used  a lot for non profit organizations like school or hospitals, charities, sports organization and promotion purposes, relief organizations, as well a family foundation, as holding vehicle for shares or certificates of shares. The Dutch foundation is also uses as a vehicle for protection purposes against hostile take-over of public companies at the Dutch Stock Exchange. A Dutch business lawyer can explain the relevant aspects of the Dutch foundation.
Foundation Netherlands

Dutch Foundation

It is possible to pursue a purpose of private benefit. However, the purpose of the Dutch foundation cannot be to distribute the foundation’s profits to the founder or to members of its organs. The founders can be members of the board. Commercial activities are allowed if these are within the objectives of the foundation and are in general taxed. The regular company tax in the Netherlands will then be applicable.

Incorporation Dutch Foundation

Foundations are established by a Dutch Notary through a notarial deed by the containing the bylaws. The foundation will then be a legal entity and has  full legal capacity. The initial board of the foundation has to be specified in the deed. No governmental body is involved in establishing a foundation. Minimum capital is not required for the establishment or operation of a foundation. Regarding the purpose, there are no restrictions. The Dutch foundations can be established for public and private purposes. The only restriction is that the purpose cannot be to distribute the foundation’s profits to the founder or to members of its organs.

Company register in the Netherlands

Foundations are registered with the local Chamber of Commerce in the Netherlands. The deed of establishing of the foundation and the bylaws are kept at the register as well as the names and the addresses of the foundation itself, members of the board with powers of representation, representatives of the foundation and its founders. A Dutch attorney can investigate the foundation’s registration, the registered board members and it’s annual accounts.

Board of Dutch Trust

The board members represent the foundation towards third parties. The statutory provisions of the foundation could assign the right of representation to one or several board members and also to other persons who are not  board members. The board has the duty to maintain financial records and keep an administration. Within 6 months from the end of each financial year, the board must prepare a balance sheet and a statement of revenues and expenditures of the foundation. An external audit is only necessary for medium or large entities. That is the case is two of these items apply:; net sales exceeding € 8.8 million; average number of employees is above 50 and/or the assets exceed an amount of € 4.4 million. Each member of the board has an obligation towards the foundation to perform the duties assigned to him properly. For matters within the competence of one or more board members, each board member  is jointly and severally liable with respect to any shortcoming. Only if  the shortcoming is not attributable to a board member and he is able to proof that, then he may not be liable.

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Patent application and claims in the Netherlands

Requirements and procedure to protect patents in the Netherlands

In order to be eligible for a patent in the Netherlands, you must have devised a technical invention that complies with three material conditions.  Requirements for patent registration in the Netherlands are:

  • Novelty
    The product or process may not have been made public anywhere in the world before the date of submitting the patent application, not even through the activities of the inventor himself (e.g. by means of a company brochure or a presentation at a trade fair).
  • Inventive step
    The invention may not be obvious to a professional.
  • Industrial application
    The invention must relate to a technically demonstrable functioning product or production process

Patent protected?

Patent infringement and advise on Dutch law

A Dutch lawyer can advise on the aspects of the Dutch patent law system. The Dutch court is competent to hear cases of patent infringement taking place in the Netherlands. The infringing party in the Netherlands can summoned to Court by a Dutch attorney. Profits  earned with infringements and damages can be fully collected from the tort feaser.

Dutch agency provides support on Dutch patents and innovation

NL Patent Office is a service agency which is closely associated with many (inter)national organisations in the field of intellectual property rights. NL Agency supports international cooperation and development efforts, both private and public, and encourages knowledge institutes in knowledge valorization. Do you have an international project in a developing country or an emerging market? You can check out what NL Agency can do for you.

 The agency provides support and supervision to entrepreneurs, service organisations, scientists, researchers, students and other interested parties in the Netherlands, NL Patent Office provides training programmes, gives advice and publishes various brochures and other publications (in Dutch only).

If you are not from the Netherlands you also contact The European Patent Office or the National office of your own country.

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Dutch Supreme Court rules is favour of Samsung

Samsung has not infringed the patent op Apple with its table computers according tot the Supreme Court in the Netherlands is a decision of May, 31, 2013. Apple submitted that the Galaxy Tab 10.1v infringed its European patent on the Ipad tablet. The lawyers of Samsung were successfull in fighting the claim op Apple. In the earlier judgment of the District Court and the Court of Appeal the claim of Apple was also ruled out. In several other European countries Apple has also started infringement proceedings.
Samsung Galaxy Tab
According the Courts in the Netherlands the Apple design only has a character of its own to a limited extent. The elements of the design already exist in products that were marketed previously by others. Therefor the scope of legal protection of the design is limited. Various parts of the Samsung tablets are distinct and noticable for users. The Supreme Court confirmed the judgement of the appeal Judge.

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Multinational Holdings in the Netherlands

The Netherlands are the ideal domicile for companies that operate globally. The good fiscal climate in Holland exists especially because of the large amount of tax treaties entered into with other countries. Therefor Holland has an advantage over other countries offering competitive tax schemes. Companies like Cisco, HP, Tesla, Dtek, Abbott, as well as international artists like The Rolling Stones and U2 have found a safe haven for their holdings in the Netherlands, very often in Amsterdam. Several  law firms and tax advisers that can facilitate the holding companies.
Holding Companies in the Netherlands

The organistation promoting the Dutch fiscal climate is the Netherlands Foreign Investment Agency (NFIA). The agency also promotes the advantage for international companies to obtain tax rulings with the Dutch tax Authority. Tax lawyers can negotiate a tax  ruling to establish which part of the profits of a company is subject to tax in the Netherlands.

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Preliminary Relief Proceedings: Quick Judgment of Dutch Judge

Preliminary Judgment Dutch Court

In urgent matters the president of the competent district court (voorzieningenrechter) can file for preliminary relief. The proceedings are called “kort geding “. A writ of summons can be issued at short notice. One court hearing will take place and usually the judge will decide within one or two weeks.

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Injunction in urgent matter in the Netherlands

It is a prerequisite that the matter requires an immediate provisional remedy. Only provisional measures can be granted by the judge. The facts of the matter should not be too complicated for such proceedings. If the case is too complicated, the judge will deny the relieve requested and parties will be referred to main proceedings. The judgment allowing preliminary relief does not prejudice the main proceedings. Therefore judgment in the main proceedings may be quite different than provisional judgment.

Remedies in Dutch Court

The available remedies are usually a prohibitory injunction (verbod in kort geding) or a mandatory injunction (gebod in kort geding). Usually the claimant will also request the judge to include a penalty in the judgment for each day the defendant fails to comply with the judgment.
Provisional remedies can also be requested for monetary claims and debt collection. The judge will investigate whether the claim is strong and if the facts and circumstances required an immediate provisional judgment. The risk of repayment will also be assessed.

Summary judgment by Netherlands Court

The Dutch attorney for the claimant will request a date for the court hearing. As soon as the date is fixed, the writ of summons will be issued and the defendant is not obliged to file a defense before the date of the court hearing. The defendant may defend itself orally at the court hearing. Documents should be filed by the defense 24 hours before the court hearing.

The normal rules of evidence do not apply in preliminary relief proceedings. The summary proceedings are not intended for examination of witnesses. The judge may, however, ask questions to people present at the hearing.

Appeal from Dutch Judgment

Within four weeks from the date of the judgment parties can appeal with the court of appeal. In the appeal both parties have to submit written statements. Only if requested by one of the parties an oral hearing takes place.

The judgment can be enforced immediately in appeal by the defendant and does not suspend the judgment.

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International jurisdiction Dutch Court over civil and commercial claims

International jurisdiction Netherlands Court over civil and commercial matters (principal rule)

A Dutch attorney can file claims with the Dutch Courts based on property law, the law of obligations, the law of contracts, the law of tort or on intellectual property rights. The claim has to be brought before a Dutch court by filing a Writ of Summons at the Registry of the court.  In the  Writ of Summons the defendant is invited to appear in the Dutch Court on a specific day.

Dutch Legal Advice Netherlands Lawyer

The Dutch court has jurisdiction if the defendant has his domicile or habitual residence in the Netherlands (the ‘forum rei’ rule). The domicile and habitual residence of commercial partnerships and legal persons are the Municipality that is appointed as seat of the commercial partnership or legal person and the place where its head office is actually located, respectively.

International jurisdiction Dutch Court over civil and commercial matters (alternative rules)

The Duch Code of Civil Procedure offers alternative criteria for jurisdiction with regard to legal proceedings initiated by a Writ of Summons, regardless of the domicile or habitual residence of the defendant. These criteria independently create  jurisdiction with the Dutch court has jurisdiction. These rules determine legal claim is linked in such a way to the territory of the Netherlands that jurisdiction of the Dutch court is justified.

Filing a Claim with Dutch Court

The Dutch attorney can also file a claim with the Court in the Netherlands in matters concerning:

  • contractual obligations, that have been performed or must be performed in the Netherlands;
  • an individual employment agreement or an agency agreement if the work is or used to be performed in The Netherlands;
  • an individual employment contract, if the work is performed temporarily in The Netherlands, concerning rights of action with regard to conditions of employment and labour conditions referred to in Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services.
  • consumer contracs involving a consumer who has his domicile or habitual residence in the Netherlands and an opposite party who pursues commercial activities or his trade of profession (also) in the Netherlands;
  • obligations arisen from a tortious act, if the event that has caused the damage has taken place or may take place in the Netherlands;
  • real property rights in, as well as lease and farm lease agreements to immovable things located in the Netherlands (however, not over claims derived from a sale agreement with regard to immovable property in the Netherlands);
  • estates of a deceased natural person, if the last domicile or last habitual residence of the deceased was located in the Netherlands;
  • the validity, nullity or dissolution of commercial partnerships and legal persons established in the Netherlands;
  • legal claims and issues related to a bankruptcy, suspension of payment under a moratorium or the Debt Repayment Scheme for Natural Persons that has been proclaimed or granted in the Netherlands.

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A word on general conditions under Dutch law

A Dutch lawyer can inform you on  specific rules for general terms and conditions used by companies. Some rules are inspired by European regulations.The Dutch Civil Code contains explicit mandatory provisions governing the use of standardized terms.

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Standard Clauses in Dutch Contracts

Whether or not clauses contained in standardized terms are enforceable under Dutch law, depends on the nature of the party against whom the terms may be enforced, more specifically whether that party is a large entrepreneur, a small entrepreneur or a consumer.

Protection against unfair contract terms

If at the time of the conclusion of the contract, the other party is a legal entity that has published its annual accounts or has fifty or more employees, it qualifies as a “large entrepreneur.” The provisions relating to standardized terms do not protect such “large entrepreneur.” In case of a large entrepreneur as a contractual counterpart, the answer to the question whether contract clauses (either individually made or contained in standardized terms) are enforceable, depends on the test of reasonableness and fairness.

Void conditions in Dutch agreements

That’s a vague criterion, but it has overriding effect in Dutch law. With respect to other entrepreneurs, a standardized term may be voidable in view of the nature of the remaining contents of the contract, the way in which the standardized terms came into existence, the mutually known interests of the parties and the other circumstances of the case, it is unreasonably onerous for the other party, or if the enforcing party did not offer to the other party a reasonable possibility to be informed of the standardized terms.These two criteria resemble the foreign (i.e. non-Dutch) concept of unconscionability.

Black-listed clauses in Dutch Civil Code

For consumers, the Dutch Civil Code contains a so-called “grey list ” and a “black list” of provisions that are deemed unreasonably onerous when contained in contracts. The statutory provisions containing the black list and grey list can also effect non-consumer contracts, which is why I decided to briefly mention this in this e-mail.

A party who supplies good or services to a consumer may “get stuck” between the consumer and a preceding party, with whom he contracted in respect of the same goods or services, in that a clause in the consumer contract is subject to avoidance based on the black list or the grey list, whereas a similar clause in the contract with the preceding party is not.

In such a case the clause in the contract with the preceding party can also be avoided, if relying on that clause would be unreasonable because of the close connection with a clause contained in standardized terms that has been avoided.

Of relevance may also be article 6:247.2 of the Dutch Civil Code, which regulates that if both parties are entrepreneurs, but not both established in The Netherlands, then the provisions concerning standardized terms (say: the grey and black lists) are not applicable. This is basic knowlegde for a Dutch solicitor so don’t hesitate to mail me any questions you may have.

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