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Starter-PLLC Act now in force
The Act of 12 January 2010 amending the Companies Code and establishing the arrangements for the Starter private limited liability company was published in the Belgian Official Gazette on 26 January 2010. The Act introduced a new variant of the PLLC, the Starter-PLLC (or S-PLLC), intended to facilitate company formation for starting entrepreneurs, principally by setting the minimum capital at EUR 1. As of 1 June 2010, the S-PLLC can now actually be incorporated.
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Competition law: new block exemption regulation for the insurance sector
The European Commission has adopted a new regulation extending the block exemption granted to certain categories of agreements in the insurance sector from the prohibition in Article 101(1) TFEU. This affects agreements for the joint realisation of compilations, tables and studies and co-(re)insurance pools.
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A distributor's activity does not have to be a risky business
The distinguishing characteristic of a distribution agreement is that the distributor sells the supplier's products "in his own name and for his own account". This means that he purchases the supplier's products with a view to reselling them. Given the fact that he purchases the products, the distributor bears the economic risk of the distribution of the supplier's products and he is remunerated with the proceeds from the resale of those products. In a judgment dated 30 April 2010, the Court of Cassation ruled that the mere fact that a supplier bears part of the distributor's economic risk by paying him a fixed commission is insufficient as grounds for concluding that the distributor no longer qualifies as a distributor.
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The competent court for European commercial agency contracts
In a judgment dated 11 March 2010, the Court of Justice has clarified how to determine which court has jurisdiction when a commercial agency contract is performed in several Member States of the European Union and the parties did not include a (valid) jurisdiction clause in the contract.
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Court of Justice limits scope of anti-abuse provision regarding reorganisations
Since the beginning of 2009, corporate reorganisations (mergers, demergers, contributions) in Belgium can only benefit from an exemption from corporate tax if tax evasion or tax avoidance is not their principal objective or one of their principal objectives. This new anti-abuse provision is derived from the fiscal Merger Directive.
In a judgment dated 20 May 2010 concerning the Zwijnenburg case, the European Court of Justice ruled that such "tax avoidance" must relate to the taxes covered by the directive, i.e. income taxes. The application of the tax exemption will not be hampered if the restructuring has as its principal objective the avoidance of another tax (in this case, Dutch real property transfer tax). This scope limitation of the anti-abuse provision is also relevant for purely Belgian reorganisations and is consequently binding for the Belgian tax authorities and the "ruling commission".
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Google does not infringe trade mark rights with AdWords; advertisers sometimes do
The Court of Justice ruled in its judgment dated 23 March 2010 that Internet referencing service providers (such as Google with its AdWords service) do not infringe trade mark rights merely because they permit advertisers to purchase keywords that are identical to registered trade marks. This judgment of the Court follows the conclusion of its Advocate General (see Spotlights, December 2009). According to the Court, a referencing service provider can be liable as a host if, by storing the advertiser's information, it plays an active role that would give it knowledge of, or control over, the data stored. However, the Court is more severe on the advertisers who select the keywords: under certain circumstances, they are committing trade mark infringements.
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Modifications regarding crisis premium for blue-collar workers
The March 2010 edition of Spotlights discussed the introduction of the crisis premium for blue-collar workers by the Act of 30 December 2009 containing various provisions. The Act of 28 April 2010 (Belgian Official Gazette of 10 May 2010) introduced important amendments to this premium system at the request of the social partners. These modifications entered into force with retroactive effect as of 1 January 2010. The allocation of a crisis premium is also extended until 30 September 2010 by the Act of 19 May 2010 (Belgian Official Gazette of 28 May 2010).
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New Employment and Social Security Criminal Code almost a reality
At the beginning of May 2010, the new Employment and Social Security Criminal Code was passed by both the Senate and the Chamber of Deputies. This new code should play a key role in the efficient enforcement of modern employment and social security law. It will have consequences for all employers, employees and other socially insured persons.
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New rules for mergers and demergers of not-for-profit entities
At the end of December 2009, a remarkable innovation was introduced into the rules governing the legal consequences of mergers and demergers of not-for-profit organisations ("VZW"/"ASBL") and foundations (in the "Act containing various provisions concerning justice" – "Wet houdende Diverse Bepalingen betreffende Justitie"/"Loi portant des dispositions diverses en matière de Justice" – of 30 December 2009). This legislative intervention does not put an end to the burdensome "old style" mergers or demergers of not-for-profit organisations, but it does increase legal certainty regarding the transfer of assets and liabilities in the context of a merger or demerger between such entities.
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Court penalties for violation of an injunction that was modified on appeal
Replying to a preliminary question submitted by the Court of Cassation, the Benelux Court of Justice ("Benelux-Gerechtshof"/"Cour de Justice Benelux") ruled in its judgment of 20 April 2010 that, when an appellate judge only partially upholds an injunction pronounced at first instance and reduces the court penalty ("dwangsom"/"astreinte") imposed in connection with the injunction, a court penalty can nevertheless be due in respect of acts occurring after the service of the judgment at first instance but before the service of the appeal judgment.
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