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EALG BRIEFING SEPTEMBER 2005 VOL. 2
NO. 3 A SUMMARY OF RECENT LEGAL DEVELOPMENTS
IN EUROPE AND THE UNITED STATES
ABOUT THE
EURO-AMERICAN LAWYERS GROUP (EALG) BELGIUM The Belgian Parliament
has enacted a new law concerning the pre-contractual information
that is required to be disclosed on potential franchising agreements.
The new law stipulates documents that must be provided to a
potential franchisee prior to entering into such agreements.
The new law also allows franchisees to nullify their contracts
if the new disclosure requirements have been violated. For further details, please see the
detailed
article on the EALG
News/Information web page, or contact Robbie Tas, Partner,
robbie.tas@maxius.be, or Sarah Van Haute,
sarah.vanhaute@maxius.be,
Maxius, Louvain, Belgium; http://www.maxius.be THE NETHERLANDS
Information
about companies, including bankruptcy orders and suspension
of payment ordered, is now more readily available pursuant to
a new law which has taken effect this year. In the past,
bankruptcy and similar orders were merely recorded in the public
registers of the separate courts. This information is
now also being stored in a central automated system. The
new law sets forth specific purposes for which recorded information
on a company may be gathered and disclosed. It is intended,
in part, to be used for the prevention and repression of the
misuse of companies, including those committing crimes and offenses
of a financial or economic character. For further details, please read the
full
article at the EALG
News/Information web page, or contact Jurgen van Berkel,
De Boort Hermes De Bont, Tilburg, Holland,
j.vanberkel@devoort.nl; http://www.devoort.nl. THE NETHERLANDS The Netherlands
has implemented EU Directive Number 2002/14/EG, the purpose
of which is to close the gaps and remedy the shortcomings that
had existed on a national and community level concerning worker
participation in enterprises. The new Directive lays down
a general framework of minimum requirements concerning the right
of information and consultation of employees of enterprises
or subsidiaries. Because the Dutch Works Council Law grants
the Works Council many more rights and powers than those mentioned
in the Directive, only a limited number of modifications of
the Works Council law were needed for the implementation of
the EU Directive. For further details, please read the
full
article at the EALG
News/Information web page, or contact Steven Jellinghaus,
De Boort Hermes De Bont, Tilburg, Holland,
s.jellinghaus@devoort.nl; http://www.devoort.nl THE NETHERLANDS The Dutch Parliament
is considering a proposal to allow the use of electronic means
of communications in the decision making process in general
shareholders' meetings of limited liability companies and limited
liability companies, as well as in general meetings of associations,
corporations, and mutual insurance companies. Under current
law the ability to use such communications faces obstacles or
legal uncertainty. Other countries in the European Union,
for example, France and the United Kingdom, already have regulations
allowing the use of electronic communications in corporate governance.
It remains to be seen whether the Dutch company law will be
amended to permit the use of such communications in Holland.
For further details, please read the
full
article at the EALG
News/Information web page, or contact Jurgen van Berkel,
De Boort Hermes De Bont, Tilburg, Holland,
j.vanberkel@devoort.nl; http://www.devoort.nl. THE NETHERLANDS The Minister of
Social Affairs and Employment has submitted a bill to the Dutch
Parliament on the extension of the scope of the Terms of Employment
(Cross-border Work) Act. Under terms of the bill, foreign
employers will have to pay employees whom they wish to employ
in The Netherlands in accordance with the Collective Labour
Agreement. The proposed law would also extend other benefits
of the Agreement to foreign employees. Currently, foreign
employers who are seconding employees in The Netherlands only
have to comply with the current minimum terms, such as the legal
minimum wage or minimum rest hours. The main provisions
of the Collective Labour Agreement only apply to foreign employees
who are seconded in the building industry. For further details, please read the
full
article at the EALG
News/Information web page, or contact Steven Jellinghaus,
De Boort Hermes De Bont, Tilburg, Holland,
s.jellinghaus@devoort.nl; http://www.devoort.nl THE NETHERLANDS The Extension
of Effects VAR is now effective. As of this year, a declaration
of independent contractor status (VAR) by the Tax authorities
protects principals against payment of employee's contributions
and wage tax. The new law is expected to increase the
attractiveness of independent entrepreneurship in The Netherlands.
It gives the principal of the independent contractor the certainty
that he will not have to pay tax and employee contributions.
For further details, please read the
full
article at the EALG
News/Information web page, or contact Jurgen van Berkel,
De Boort Hermes De Bont, Tilburg, Holland,
j.vanberkel@devoort.nl; http://www.devoort.nl. THE NETHERLANDS Prior to 2005,
only the courts in The Netherlands had an Attachment Syllabus
at their disposal. This syllabus was used as a manual
for the verification of requests to effect attachments.
As of the start of this year, the Attachment Syllabus can now
also be consulted by solicitors, so that one can see in advance
which requirements are made by the separate courts for the requests
to effect an attachment. Notwithstanding availability
of the Attachment Syllabus, courts remain free to use their
discretion in evaluating requests for attachment. In other
words, no rights can be derived from the contents of the Attachment
Syllabus. For further details, please read the
full
article at the EALG
News/Information web page, or contact Jurgen van Berkel,
De Boort Hermes De Bont, Tilburg, Holland,
j.vanberkel@devoort.nl; http://www.devoort.nl. NORWAY
Late in its 2005
spring session, the Norwegian Parliament passed a new Working
Environment and Worker Protection Act. The Act, which
mainly maintains the basic principles of the 1977 Act, is intended
to meet the need for flexibility in employment contracts and
working hour periods. The changes have met opposition
from trade unions and the labour and socialist parties.
The amended legislation directly affects such areas as the right
of temporary employment; pension rights when ownership of a
business is transferred; the right of employees to stay in a
position pending resolution of disputes over employment termination;
working hours for managers and employees in independent positions;
and the rights of whistle blowers. The new law continues
the basic principles for health, environment, and security set
forth in the prior law, but with a stronger emphasis on the
psycho-social working environment. There is also a requirement
that the employer or the employer's representatives are educated
within the field of heath, environment, and security.
Parts of the new law became effective July 1, 2005, with the
remainder coming into force on January 1, 2006. For additional details, please read
the full
article at the EALG
News/Information web page, or contact UNITED STATES
The United States
Federal Maritime Commission has issued a broad exemption to
ocean transportation intermediaries giving them the right to
enter into written contracts with their customers when providing
international transportation services to and from the United
States. Under the existing statute, only ocean common
carriers, i.e., vessel operators, can enter into written contracts
with their customers. Ocean transportation intermediaries,
called non-vessel-operating common carriers (nvoccs) under U.S.
law and freight forwarders in other countries, are required
to provide their services pursuant to rates published in their
tariffs. However, exercising its authority to exempt such
services from regulation, the Federal Maritime Commission has
issued an exemption from tariff publishing for all nvoccs that
enter into written contracts with their customers. These
contracts must meet certain regulatory requirements and be filed
with the Federal Maritime Commission. The right to enter
into Nvocc Service Arrangements, or NSAs, has primarily been
sought by large multimodal transportation companies, such as
United Parcel Service and Federal Express. These companies have
complained that current statutory requirements restrict their
ability to negotiate and enter into flexible pricing and contractual
arrangements in structuring supply chain systems for international
manufacturers and distributors. They claim that this places
them at a competitive disadvantage with vessel operators. While the new
regulations have been in effect since early this year, to date
use of these new contracts has been limited. This is largely
due to a pending legal challenge in a federal appellate court.
Opponents of the regulations claim that Congress explicitly
refused to authorize the use of such contracts by nvoccs when
it amended the relevant law in 1998. The Federal Maritime
Commission is currently considering proposals that may eliminate
the legal objections to the new regulations, and thus remove
some of the uncertainties about their use. It has also
opened a new proceeding to determine whether unaffiliated nvoccs/forwarders
should be allowed to jointly offer NSAs. Such contracts
may become more widely used if the uncertainties surrounding
their legality are removed. For additional details, contact Ronald
N. Cobert, Partner, or UNITED STATES Two federal appellate
courts have issued conflicting decisions over whether ocean
transportation intermediaries known as non-vessel-operating
common carriers (nvoccs) or forwarders are entitled to an exemption
under the antitrust laws if they engage in exempt activities
under the United States Shipping Act. The decisions involve
the activities of companies providing transportation services
for the United States Government in the Philippines and Europe.
In one decision,
the United States Court of Appeals for the Ninth Circuit, based
in California, held that forwarders providing motor carrier
services in the Philippines on U.S. military shipments are exempt
from prosecution for price fixing under the United States antitrust
laws because they operated pursuant to an exemption from the
Shipping Act. Under certain circumstances, that law confers
an exemption from the antitrust laws on carriers providing ocean
transportation services even if they engage in otherwise criminal
offenses such as price fixing and market and customer allocations.
In a second decision,
the United States Court of Appeals for the Fourth Circuit, based
in Richmond, Virginia, recently held that carriers providing
similar services in transporting goods between the United States
and Germany are not immune from the antitrust laws, even if
their activities are exempt from regulation under the Shipping
Act. The Fourth Circuit held, in part, that the statutory
exemption from the antitrust laws applies only if the forwarders
have a "reasonable" basis to conclude that their activity is
exempt from the antitrust laws. The OECD recently
recommended that its member countries repeal or modify the antitrust
exemption for ocean shipping. The European Union Competition
Commission is currently engaged in a review of proposals to
eliminate the antitrust block exemption for ocean shipping in
EU countries. The conflict between the two U.S. court
decisions thus comes at a time where there is a heightened scrutiny
of the need for an antitrust exemption in ocean shipping.
The conflict between the two U.S. court decisions is ultimately
expected to be resolved by either the United States Supreme
Court or through Congressional legislation. For additional details, contact Ronald
N. Cobert, Partner, or The Euro-American
Lawyers Group (EALG) is an association of Law Firms founded
in 1985. The members of the EALG believe that they can
best serve their clients' interests overseas by co-operating
with like-minded firms who have local knowledge of, and immediate
access to, the legal system operating in their own jurisdiction.
Eagle's philosophy
is that local representation is vital in today's dynamic market
where both legislation and commercial practice is changing regularly
at both the national and international levels. The EALG has steadily
developed since its inception in 1985. It now comprises
twenty seven (27) law firms working in 20 different jurisdictions.
Each member has their own network of local contacts. With member firms
throughout Europe, the United States, and Asia, the EALG provides
excellent communications to many of the important commercial
centres of the world and access to hundreds of lawyers.
For further information about the EALG and its member law firms,
please visit our web site at http://www.ealg.com.
Copyright
2005. Euro-American Lawyers Group. All Rights Reserved.
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