Lydian s Legal Update Webinar. 19 April Brussels

Transcription

1 Lydian s Legal Update Webinar 19 April Brussels

2 Introduction Welcome to Lydian s Legal Update Webinar. This webinar is a first in a series of four this year. Save the next dates: 21 st June 18 th October 21 st December In order to guarantee the audio quality of this webinar, you are all put on listen only-mode. Should you have questions during the webinar, please do not hesitate to use the Questions tool Menu Go To Webinar. At the end of the presentation we will deal with your most common questions. 2

3 Agenda Di Rupo measures impacting your HR: Programme Law and the Act on diverse previsions 29 March 2012 Intellectual Property Hot Topics Third Energy Package: supply licences no longer needed by some foreign suppliers in the Flemish Region Update Corporate Law 3

4 Di Rupo measures impacting your HR: Programme Law and the Act on diverse previsions 29 March 2012 Isabel Plets Of Counsel Employment, Pensions & Benefits team E isabel.plets@lydian.be

5 Battle against social fraud is on track Social security and tax debts More risk sectors under system of several liability and withholding obligations Alternative liability Wage related debts Certain risk sectors Liability risk Serious shortcomings in payment of wages Good to know: contractual exclusion of liability is possible To do: review contracts with (sub)contractors 5

6 Battle against social fraud is on track (contd.) Fake self-employment Government s intention: presumption of employment contract based on economic criteria Consequences: Shift in the burden of proof More discussions Contracts in all sectors or just specific risk sectors? To do: Closely monitor developments Review contracts for and modalities of self-employed collaboration 6

7 BP and pseudo-bp: expensive! Employer contributions to (pseudo-)bp are sharply rising Not only for new, but also for old (pseudo-)bp schemes Old: 10% increase New: sharp rise for all ages => less use (pseudo-)bp Percentages as from 1 April 2012 But: alternative proposal by the NLC Old: 6 % increase New: for certain ages, lower increase (55-57 and 58-59) To do: re-calculation old (pseudo-)bp Additional payment in case of past capitalised payments? 7

8 Older employees working longer: government s project taking shape Work opportunity plan Age pyramid in case of collective dismissal NLC can suggest alternative system (by 1 July 2012) To do: closely monitor developments 8

9 Intellectual Property Hot Topics Annick Mottet Haugaard Partner Intellectual Property team E annick.mottet@lydian.be Olivia Santantonio Associate Intellectual Property team E olivia.santantonio@lydian.be

10 Domain name: your own brand as a TLD Domain names are organized in subordinate levels 1st level: top-level domain (TLD) 2nd level domain (SLD) wikipedia.org Country code top level domains (cctld):.be ;.fr Generic top level domains (gtld):.com;.org ;.biz;.travel Since January 2012: generic or brand:.radio.pepsi Reveal date: 30 April 2012 possible opposition 10

11 Anti-Counterfeiting Trade Agreement (ACTA) New international tool to enforce IP rights Limited to commercial scale infringements Respect of all fundamental rights Vote of the European Parliament in June 2012 EU acquis: Enforcement Directive (2004/48) IPR Customs Regulation (1383/2003) Did you register your trademark? Did you apply for EU customs surveillance? 11

12 Broadcasting for free? Directive 2006/115/EC (rental / lending and certain rights related to copyright in the field of intellectual property) Obligation for the Member States to provide for a single equitable remuneration for producers of phonograms produced for commercial purposes to be paid by the user > < private use Court of Justice of the European Union 15 March 2012 = two important decisions: Italy (private dental practice) Ireland (exception made for hotel rooms) 12

13 Broadcasting for free? (contd.) Italy (private dental practice) Concept of communication to the public Assessment of the situation of: Each user, and All the persons to whom he communicates the protected phonograms Several complementary criteria Role of the user Concept of public : indeterminate / fairly large number of persons Broadcast is not of a profit-making nature Usual customers of a dentist receptive free of charge 13

14 Broadcasting for free? (contd.) Ireland (exception made for hotel rooms) Communication to the public as all the criteria are met: Role of the hotel operator is indispensable Indeterminate number of potential listeners Fairly large audience Broadcast is of a profit-making nature New criteria: in practice use of the work by the hotel operator and not by the client Not free of charge What about broadcasting in the workplace in Belgium? 14

15 Third Energy Package: supply licences no longer needed by some foreign suppliers in the Flemish Region Wouter Vandorpe Associate Energy Team E wouter.vandorpe@lydian.be

16 Context Implementation of the Third Energy Package Article of the Flemish Energy Decree VREG s supply licences no longer mandatory for already licensed suppliers For activities of supply in the Flemish Region + access agreements 16

17 Principles Who? Suppliers who have already been granted supply licences by: The competent authorities of the Member States of the European Economic Area (EEA) The Federal Government The relevant regional authorities in Belgium (Brussels Capital Region or Walloon Region) No need to obtain in advance a supply licence from the VREG 17

18 Principles (contd.) In case of new access agreement with foreign suppliers Grid operators must inform the VREG The VREG may make preliminary contact with foreign suppliers but they have no formal obligation to respond If doubts exist about the eligibility of the potential foreign supplier to gain access to the local energy supply network foreign regulators can be contacted by the VREG Only applicable in Flemish Region 18

19 Similar case: water sector Article of the VLAREMA Carriers of waste included in the relevant registries of the Brussels Capital Region / the Walloon Region or licensed for that activity in any of the EEA Member States considered as registered carriers in the Flemish Region. 19

20 Conclusion These provisions: merely express the pre-existing right of EU freedom of circulation for services and foods can also be seen as evidence of policiy makers wish to see an increasing presence of such market players on the Belgian markets contribute to greater legal certainty for non-domestic market players 20

21 Update Corporate Law Virginie Bazelmans Associate Corporate team E virginie.bazelmans@lydian.be

22 Act of 20 December 2010 concerning the exercise of certain shareholders rights in listed companies (the Act ) Scope of the Act: Listed companies but also some rules applicable to non-listed companies Applicable to the following legal forms: public limited liability companies (SA/NV), cooperative companies (SC/CV), private limited liability companies (SPRL/BVBA) and European companies (SE) Amendments to the Company Code Time frame to issue the convocation (art. 533, ) Convocation methods (art. 533, 2) Legal references in the convocation (art. 533bis, 1er) Information and documents to be made available (art. 533bis, 2, 535 and 553) Right of the shareholders to include items on the agenda and to submit proposals for decisions (art. 533ter) Admission to the GM - Registration (art. 536) 22

23 Act of 20 December 2010 concerning the exercise of certain shareholders rights in listed companies (the Act ) (contd.) Remote participation and voting at the GM (art. 538bis also applies to nonlisted companies) Remote voting prior to the GM (art. 550 also applies to non listed companies) Voting by proxy (art. 547 also applies to non listed companies art. 547bis) Principle of equal treatment of shareholders (art. 551bis also applies to non listed companies) Right to put questions to directors and auditors (art. 540 also applies to non listed companies) Minutes of the GM (art. 546) Postponement and adjournment of the GM (art. 534 and 555) Entry into force of the Act: 1 January 2012 (except for Articles 34 and 35 which entered into force on 28 April 2011) The statutory provisions contrary to the Act are deemed to be unwritten and, since 1 January 2012, the imperative provisions of the Act apply to the company. 23

24 Act of 8 January 2012 concerning the documentary requirements in case of mergers and demergers (the Act ) Objective: The Act lightens certain information and reporting requirements, and cancels others (inter alia in case of contributions in kind) Main amendments Publication requirement with respect to the merger or demerger proposal Board report on the merger or demerger proposal required Control report on the merger or demerger proposal necessary Information on any significant changes in the assets and liabilities must be provided Intermediary state of assets and liabilities must be noted Information must be put at the disposal of the shareholders prior to general meetings Merger or demerger must be approved by the general meeting Forced sale of shares (squeeze out) Entry into force: The new rules apply to mergers or demergers of which the proposal is filed with the clerk s office after 28 January

25 Act of 28 July 2011 concerning female participation in the Boards of Directors of listed companies New art. 518bis Company Code In listed companies, at least one third of the members of the Board of Directors must be of a different sex than the other members (the minimum required number is rounded to the nearest whole number) Sanctions: Any financial or other advantage of all directors, relating to the execution performance of their mandate, is suspended until this obligation is met. If the minimum required number of directors of a different sex than the other directors is not reached, the next appointed director must be of that sex, otherwise his or her appointment will be void. The same applies if an appointment has as a consequence that the number of directors of a different sex falls under this required minimum number Entry into force: This Act comes into force (subject to certain specificities) as from the first day of the sixth accounting year beginning after September

26 Act of 7 November 2011 concerning the remuneration related to non-executive directors shares in listed companies Amendment to art. 554 Company Code As from now on, any contract providing for the allocation of a variable remuneration to a non-executive director of a listed company must obtain the prior approval of the next ordinary general meeting of shareholders. Any agreement to the contrary is void In the past this obligation applied only to variable remuneration granted to independent directors Entry into force: This Act applies to agreements that entered into force or extended after 3 December

27 Thank you for your attention Q&A 27