The Legal 500

Olivier Vrins (ALTIUS) and Marius Schneider

Oxford University Press, the well-known UK publisher of reference books, has just published Enforcement of Intellectual Property Rights through Border Measures (second edition), a 1248-page practical guide to using border measures against the importation of goods infringing intellectual property rights into the European Union, edited by Olivier Vrins (Partner at ALTIUS) and Marius Schneider. 

Commercial Court of Brussels orders JUPILER BLUE beer to be withdrawn from the Belgian Market

During summer holidays, a lot of students decide to work in order to gain work experience and to earn some money. As from 1 January 2012, new rules regarding student work came into force.

The Belgian Real Estate Market in 2012: as convoluted as a bow-tie

When, on 5 December 2011, the new Belgian federal government was finally sworn in, the worldwide financial markets reacted positively. Belgium had just set a new world-record for the longest period without a (federal) government. Shortly afterwards, the new government passed a budget, and the rating agencies shifted their attention elsewhere. At first sight, all seemed well. The joy did however not last for long… 

SOCIAL ELECTIONS ARE COMING CLOSER

While the social elections are coming closer and most procedural steps preceding the social elections have already been taken, we draw your attention to some issues which have to be taken in mind during the further course of the social elections procedure:

Judgment on copyright protection of football league fixture lists (C-604/10) On 1 March 2012, the Court of Justice of the EU (“CJEU”) delivered its judgment in the Football Data Co case (C-604/10).

Companies often use colours to promote their products, applying them to goods and packaging and using them in advertisements and point of sale displays. Colours may become a powerful corporate tool, especially when they are registered as trademarks in relation to the company's goods.

Judgment in the Rank Group plc cases (C-259/10 and C-260/10): interpretation of the principle of fiscal neutrality applied to gambling

In its judgment of November 10, the Court of Justice of the EU elaborated on the principle of fiscal neutrality and the difference in treatment for VAT purposes of mechanized cash bingo (‘MCB’) and slot machines.

On October 3 2011 the Brussels Commercial Court invalidated Lundbeck's supplementary protection certificate (SPC) for escitalopram, the 'S' enantiomer of its racemate citalopram. The court held that escitalopram is the same product as citalopram, and that the former's SPC did not comply with Articles 3(c) and (d) of EU Regulation 469/2009. The court held that it was in the interests of patients to declare the decision provisionally enforceable.

Another year draws to its close. At the eleventh hour, a government was formed, a budget was agreed and political pledges were made to tackle the current adverse economic and financial climate. The year-end - traditionally a busy period with the issuing of hefty Programme Statutes - marks the beginning of intensified law-making under the reign of Di Rupo I.

edited by altius and tiberghien - belgium

Improved judicial protection in procurement matters

The Belgian Act of 23 December 2009 has considerably improved judicial protection in procurement matters. It is interesting to follow the case law resulting from this Act. However, several procedural issues remain.

June 1 2010 saw the official introduction in Belgium of the starter public limited liability company (S-PLLC). This new form of corporate entity was part of the legislature's response to the economic crisis and was intended to encourage new entrepreneurs with limited financial resources, offering them a home-grown alternative to the so-called 'light vehicles' available abroad, such as the UK limited company and Germany's 'mini- Gmbh'.

Judgment in Dickinger and Ömer case (C-347/09): reaffirmation of the validity of an (online) gambling monopoly

On July 28 2011 a law was passed whereby at least one-third of members of boards of directors of listed companies (and certain autonomous state undertakings) must be "of the minority gender" - in the case of most companies, this means women. The law was published in the Official Gazette on September 14 2011.

The '.xxx' domain name extension will soon be open for registration - whether brand owners like it or not. The new top-level domain is intended for companies in the adult entertainment industry.

On June 3 2011 the Supreme Court issued a succinct judgment on the scope of the Court of Appeal's powers to overturn Competition Council decisions and the nature of proceedings before the council. This is the latest decision in a case that began in 1995 with complaints filed by 12 independent motorcycle distributors in Belgium against five official importers of motorcycles, including Honda Belgium.

On April 21 2011 the Competition Council annulled a decision of the competition prosecutor in which a complaint was dismissed on the grounds that the statute of limitations had expired.

More than a year has passed since the official publication of the Corporate Governance Act, which aims to strengthen the corporate governance of listed companies and autonomous state enterprises, particularly in relation to remuneration.

On September 28 2010 the College of Competition Law Prosecutors dismissed a complaint against brewer InBev Belgium NV which had been brought in March 2008 by Freedom CVBA, a purchasing association made up of several beverage wholesalers.

A plant variety right (PVR) is an IP right which rewards breeders of new plant varieties for their efforts in creating those varieties. The current PVR law dates back to 1975 and is based on the 1961 International Convention for the Protection of New Varieties of Plants. The convention has since been amended several times, most recently and radically in 1991.

Colours are used on packaging and in advertising to present products attractively and decoratively. However, they also send a powerful, attention-grabbing signal and are often processed more rapidly by the human brain than verbal of figurative signs, especially when perceived at a distance. A single colour or colour combination can thus fulfil the function of a trademark: to guarantee the origin of goods or services to consumers or end users by enabling them unambiguously to distinguish particular goods or services from others.

A few months ago the Brussels Commercial Court annulled two DUFF BEER Community trademarks owned by Twentieth Century Fox.

In a recently published decision the president of the Competition Council approved a request for preliminary measures from Belgian diamond merchant Diamanthandel A Spira against De Beers, the world's leading diamond mining and trading company.

Despite calls for seized counterfeit goods to be donated to charity, set conditions should be met in order to protect rights holders and those receiving the goods

In the context of the European Observatory on Counterfeiting and Piracy, the private sector members called for the establishment of a professional and technical group of legal practitioners, to horizontally assess intellectual property rights legal framework.

In 2010 the Brussels Court of Appeal referred a question to the European Court of Justice (ECJ) on the subject of illegal downloading.

On December 20 2010 a new act was ratified on the exercise of certain rights of shareholders in listed companies, transposing the EU Shareholders' Rights Directive (2007/36/EC) into Belgian law. The Listed Companies' Shareholders' Rights Act was published in the Official Gazette on Apil 18 2011.

The Unilateral Termination of Exclusive Distribution Agreements of Indefinite Duration Act(1) will celebrate its 50th anniversary in a few months. The protection of distributors under the act has changed during this half century.

Written by Adriaan Dauwe, Kurt Grillet and Laurent Cloquet

As of 1 January 2012, shareholders of listed companies will obtain more rights as a consequence of the transposition of the EU Shareholders’ Rights Directive into Belgian federal law.

Article 633 of the Companies Code lays down a procedure that must be followed when a company's net assets fall below one-half or one-quarter of its share capital due to losses sustained. This is known as the 'alarm bell procedure' and is particularly relevant in times of economic downturn.

The college of Competition Law Prosecutors has reported to the Competition Council on alleged anti-competitive practices in the market for the supply and sale of flour in Belgium. Following the Dutch regulator's decision to impose fines of over €81 million for anti-competitive agreements in the same industry, will leading Belgian producers also be put through the mill?

The growing success of cookery books in Belgium has revived the issue of how to protect the intellectual property in recipes. Recent cases involving two of Belgium's finest culinary specialties have raised a number of questions for IP experts, not least how to protect both highly innovative recipes - for example, in the field of molecular gastronomy - and the free exchange of culinary ideas.

On September 28 2010 the College of Competition Law Prosecutors dismissed a complaint filed against brewer InBev NV on March 10 2008 by Freedom CVBA, a purchasing association made up of several beverage wholesalers.

Freedom claimed that InBev was abusing its dominant position in the Belgian brewing and beer sales market by applying different commercial conditions, including different prices and discounts, to its on-trade customers.

The UNIDROIT Convention on International Factoring entered into force in Belgium on October 1 2010. The Act of February 21 2010 ratified it and was published in the Official Gazette on September 21 2010. Belgium joins France, Germany, Hungary, Italy, Latvia, Nigeria and Ukraine in having ratified the convention.

Interim dividends can be distributed by the board of directors or the general shareholders' meeting of a Belgian company limited by shares, depending on the year (current financial year or not) to which the interim dividend relates. On January 14 2009 the Commission for Accounting Standards advised against the distribution of any interim dividend by the general meeting between the end date of the last financial year and the approval of the annual accounts for that financial year by the general meeting. This advice remains the subject of some controversy.

The Companies Code contains relatively stringent requirements for the board of directors of an unlisted Belgian company limited by shares if one of the directors has a conflicting pecuniary interest.

Lieven Peeters, William Timmermans, Suzy Miller and Charlotte Boumal, lawyers in ALTIUS' Real Estate & Regulatory practice, wrote the Belgian Chapter of the "Getting the deal through - Construction" book published by Law Business Research. This publication provides international analysis in key areas of law and policy for corporate counsel, cross-border legal practitioners and business people.

ALTIUS and Tiberghien have published the third edition of the Real Estate Gazette. Under the direction of Lieven Peeters, William Timmermans and Danny Stas, lawyers from both law firms have contributed to this joint initiative. Among the ALTIUS authors: Lieven Peeters, William Timmermans, Suzy Miller, Tim Bruyninckx, Charlotte Boumal and Jolijn Weytjens.

The International Dimension of the Attachment of Debts

Private use by employees of their company mobile phones: moving towards the application of a lump-sum taxable benefit based on €12.50 per month?

What types of collateral are available? Collateral used in secured financings can also be used in project financings. A full security package includes guarantees, mortgages over real estate, buildings and machinery and pledges over receivables, bank accounts, securities, proceeds, equipment, inventory, intellectual property rights and the entire business (similar to a floating charge under English law, covering all business assets except for immoveable property and 50 per cent of the value of the stock). The fiduciary transfer of title of financial instruments and cash on bank accounts is valid and enforceable in accordance with the Financial Collateral Act of 15 December 2004

Lieven Peeters, William Timmermans, Suzy Miller and Charlotte Boumal, lawyers in ALTIUS' Real Estate & Regulatory practice, wrote the Belgian Chapter of the "Getting the deal through - Construction" book published by Law Business Research. This publication provides international analysis in key areas of law and policy for corporate counsel, cross-border legal practitioners and business people.

The implementation of European Directive 2004/39/EC of 21 April 2004 on markets in financial instruments (the “MIFID”) into Belgian Law has significantly changed our financial regulations. In this article we will analyse the consequence of the amendment by the MIFID of the definition of the term “financial instruments” within the scope of the Belgian Collateral Act of 15 December 2004 which implemented the European Collateral Directive 2002/47/EC (the “Collateral Act”). 

In the slipstream of the general Belgian, European and global economies, 2010 will be qualified as a year of slow and prudent transition for Belgium’s real estate market. After a correction process in 2008-2009, the Belgian real estate market is showing signs of recovery, and the appetite for investments appears to be increasing. However, the decrease in prices for Belgian real estate and the weakened office rent market do slow down the activity on the real estate financing market.   

Joint ventures: Must foreign designers or contractors enter into a joint venture with a local contractor to design, build and be paid for their work? Does the law require that the local contractor control the joint venture?

How can the government’s attitude and approach to internet issues best be described?

In the context of the European Observatory on Counterfeiting and Piracy, the private sector members called for the establishment of a professional and technical group of legal practitioners, to horizontally assess intellectual property rights legal framework. The Commission welcomed this and on 22 October 2009 an inaugural meeting of the Observatory's sub-group on the legal framework took place. The group is mainly composed of legal practitioners from different Member States, suggested by the industries represented in the Observatory.

In the context of the European Observatory on Counterfeiting and Piracy, the private sector members called for the establishment of a professional and technical group of legal practitioners, to horizontally assess intellectual property rights legal framework. The Commission welcomed this and on 22 October 2009 an inaugural meeting of the Observatory's sub-group on the legal framework took place. The group is mainly composed of legal practitioners from different Member States, suggested by the industries represented in the Observatory.

On February 25 2010 the Supreme Court made the first-ever reference for a preliminary ruling to the Court of Justice of the European Union on the exhaustion of Community plant variety rights under EU Regulation 2100/94.(1)

On April 6 2010 the legislature approved the replacement for the Trade Practices Act, now named the Act on Market Practices and Consumer Protection. It has two main objectives.

What are the legal sources that set out the antitrust law applicable to vertical restraints? The main sources of law applicable to vertical restraints in Belgium are two Acts of 10 June 2006 on the protection of economic competition and on the establishment of a Competition Council, as coordinated by the Royal Decree of 15 September 2006 (‘the Competition Act’).

On 18 March 2010, the Senate approved the new Corporate Governance Act, which had already been approved by the Chamber of Deputies. The new Act will be published in the Belgian State Gazette soon.

The Belgian Supreme Court has ruled that circumstances which were not reasonably foreseeable at the time of the conclusion of an agreement and which increase the burden of the agreement disproportionately, can, in certain circumstances, be considered as “an impediment” in the sense of Article 79 of the United Nations Convention on Contracs for the International Sale of Goods, signed in Vienna on 11 April 1980 (the “CISG”).

Under the system of plant breeders rights, also known as plant variety rights, the breeder of a new variety can obtain an exclusive right to perform certain acts with respect to material [1] of his protected variety. This exclusive right comes in the form of a certificate which is granted by a body mandated to do so,[2] provided that the variety meets the grant criteria laid down in the law. Upon grant of the certificate, and sometimes ever even before, only the breeder of the protected variety[3] is entitled to (re)produce material from the variety, condition it for the purpose of propagation, offer it for sale, sell it or otherwise put it to market, export it, import it, or stock it for any of these purposes. Subject to a number of exceptions and unless authorization from the breeder is obtained, these acts are thus reserved for the breeder of the protected variety. They are referred to as the ‘reserved acts’.

La transposition en droit belge, courant 2007, de la Directive européenne 2004/48 sur la mise en œuvre des droits de propriété intellectuelle offrit l'occasion au législateur de revoir et d'harmoniser les procédures relatives au contentieux de la propriété intellectuelle. Deux ans après son entée en vigueur, il est possible de dresser un premier bilan de la réforme. Assurément positif.

On 1 September 2009, the long-anticipated Social Security Agreement between the Kingdom of Belgium and the Republic of India (the “SSA”) entered into force. The SSA was signed in New Delhi on 3 November 2006 and is considered as a landmark agreement as it was the first treaty of its kind to be signed by the Indian authorities. Therefore it is likely to serve as a benchmark for similar agreements between India and other countries.

In Belgium, contracting agreements are subject to the Belgian Civil Code (‘BCC’) plus several other regulations. In this article, we briefly discuss five rules which foreign investors or principals may be surprised apply to Belgian contracting agreements. Make sure you avoid these pitfalls!

The Acoset judgment of the ECJ dated 15 October 2009 (C-196/08) was related to a dispute about an institutionalised public-private partnership (IPPP). A local authority wanted to grant a concession to a newly-created semi-public company, whose minority shareholder would be a private company selected by an open tender procedure. The minority shareholder would be responsible for the operations of the semi-public company.

On 23 April 2009, the ECJ held that Belgium did not properly transpose Procurement Directive 2004/18 into national law (case C-292/07). In fact, Belgium already has new procurement Acts (dating from 15 and 16 June 2006) but they have not entered into force, because the new Royal Decrees implementing these Acts have not been adopted. Therefore, Belgium decided to modify the old Royal Decrees (from 1996). This article will analyse two topics: the negotiated procedure and the procedure for handling abnormally low offers.

In its Sea Judgement of 10 September 2009 (C-573/07), the European Court of Justice (ECJ) further clarifies its “in-house” jurisprudence. More specifically, it goes more deeply into the notion of control. Indeed, following the landmark judgement in the Teckal case, contracting authorities granting a public contract do not have to apply the public procurement rules if the contractor, which is a distinct legal entity, is subject to the same control by the contracting authority as the departments of the contracting authority and if the contractor carries out the essential part of its activities with the controlling local authority or authorities.

ALTIUS' BANKING & FINANCE TEAM CONTRIBUTED TO A JURISDICTIONAL COMPARISON OF INTERNATIONAL ACQUISITION FINANCE. THE VOLUME PROVIDES COUNSEL WITH A FULL INSIGHT INTO THE LAW AND REGULATION ACROSS NUMEROUS JURISDICTIONS. IN THIS ARTICLE JOHAN DE BRUYCKER, HEAD OF ALTIUS’ BANKING & FINANCE DEPARTMENT UNTANGLES THE COMPLICATIONS OF DEBT FUNDING REGIMES FOR THE BELGIAN JURISDICTION.

TO HANDLE REQUESTS FOR THE ANNULMENT OF RULINGS BY ARBITRATION PANELS ON COMPETITION LAW ISSUES.

ON MAY 15 2009 THE SUPREME COURT RULED THAT THE BELGIAN COURTS CAN FIND - ON THE BASIS OF ARTICLE 81(2) OF THE EC TREATY - THAT CLAUSES IMPOSING AN EXCLUSIVE PURCHASE OBLIGATION OF MORE THAN FIVE YEARS ARE VOID WITHOUT HAVING TO INVOKE AN INDIVIDUAL EXEMPTION UNDER ARTICLE 81(3) ON THEIR OWN INITIATIVE. THE DECISION CALLS INTO QUESTION THE PUBLIC POLICY NATURE OF ARTICLE 81(3).

On March 12, 2009, the second edition of the Belgian Code on Corporate Governance was published (the “2009 Code”), superseding and replacing the first edition, that was issued in 2004. The 2009 Code applies to companies incorporated in Belgium whose shares are admitted to trading on a regulated market. Generally, the 2009 Code applies to the financial years beginning on or after January 1 2009; the provisions regarding executive remuneration apply to contractual arrangements entered into after July 1 2009.

The attitude of the Belgian government can be described as positive and their approach is proactive. In 2003, the Belgian authorities announced the introduction of ʻe-governmentʼ. The most important initiatives were the introduction of electronic identity cards (e-ID) for all Belgian citizens over 12, and the federal governmentʼs information web-portal. The e-ID cards are smart cards that can be used by Belgian citizens to electronically identify themselves and authenticate their identities. The e-ID cards are also equipped with electronic-signature software, an attempt by the government to encourage e-commerce. Recently the Belgian government launched the site sign.belgium.be where Belgian citizens can sign documents electronically using their e-ID and check the validity of electronic signatures on documents they receive. By the end of 2009 every Belgian citizen living in Belgium should have an e-ID. Therefore the Belgian government will shortly launch a site containing all e-ID applications on government level. In 2009, the Belgian government also started issuing kids-e-IDs for children younger then 12, that, among others uses, can be used for chatting safely on the internet.

In accordance with Article 97 of the Companies Code, most companies in which the liability of the shareholders or members is limited to their contribution to the company must file annual accounts and, as the case may be, consolidated accounts with the National Bank of Belgium. This obligation applies to, among others:

As of 8 January 2009, Belgian listed companies and financial undertakings are required to have an audit committee. The Law of 17 December 2008 on the establishment of an audit committee in listed companies and financial undertakings (the “Law”) then enters into force. The Law implements the provisions of the European Statutory Audit Directive relating to the audit committee into Belgian law . Before 8 January 2009, the creation of an audit committee was only a recommendation under the Belgian Corporate Governance Code for Belgian listed companies.

The Royal Decree of 8 October 2008 amending the Belgian Companies Code (“BCC”) has amended the rules on financial assistance. The new rules entered into force on 1 January 2009. The Royal Decree implements European Directive 2006/68/EC amending the Second Company Law Directive. The Belgian rules on financial assistance apply to public limited-liability companies (NV/SA), private limited-liability companies (BVBA/SPRL), partnerships limited by shares (Comm.VA/SCA) and co-operative limited-liability companies (CVBA/SCRL). This contribution only addresses the modifications which affect public limited-liability companies.

In two recent cases (Coditel and Stadtreinigung Hamburg), the ECJ dealt with the so-called “in-house exemption” in procurement matters. This is an exemption to the public procurement rules applicable to a public authority if it awards a contract to another entity (i) if the control exercised by the contracting authority over this entity is similar to that which the authority exercises over its own departments and (ii) if that entity carries out the essential part of its activities with the controlling authority or authorities.

What are the limits on national public procurement law to prevent collusion between tenderers in award procedures? This was the question the ECJ dealt with in its recent Assitur judgment (C-538/07).

In the Oymanns judgment (case C-300/07, 11 June 2009), the ECJ confirmed that German statutory sickness insurance funds are contracting authorities under the procurement Directive 2004/18.

Trademark owners often try to stop grey-market and counterfeit goods while in external transit through an EU member state. However, ECJ rulings are unclear as to the extent to which this is possible.

Directive 2006/68/EC of the European Parliament and the Council of 6 September 2006 has amended the Second Company Law Directive in relation to maintenance of capital.

On 8 October 2008, the Royal Decree (hereafter the "Royal Decree 10/2008") implementing the Directive was adopted and substantially modified the Belgian Companies Code (hereafter "BCC") in respect of contributions in kind, purchase of own shares and financial assistance.

The Royal Decree 10/2008 was published in the Annexes to the Belgian State Gazette on 30 October 2008 and entered into force on 1 January 2009.

The Court of First Instance of the European Communities (CFI) dismisses Lego’s appeal to the OHIM Grand Board of Appeal’s cancellation of its trade mark registration of a three-dimensional sign consisting of Lego’s basic toy brick. The CFI maintains that the trade mark should be cancelled because the shape for which protection was sought is necessary to obtain a technical result. Furthermore, the court does not accept that acquired distinctiveness can overcome this ground for refusal.

The Court of Justice of the European Communities (ECJ) ruled that Article 82 EC does not preclude copyright management societies from imposing royalty rates calculated partly on the basis of television broadcast companies’ revenues, provided that the royalty calculation takes into account the actual or estimated use of the licensed repertoire and except where another calculation method would permit a more accurate identification of the use of that repertoire and the audience reached, without a disproportionate decrease in the efficiency of copyright management. The Court also held that applying different royalty rates to commercial and public channels probably amounts to an abuse of a dominant position unless there are objective justifications for such differential treatment.

Companies (listed and unlisted) spinning off real estate at Belgian or at both Belgian and European level is common practice. In comparison to the U.S. market, the trend is only just in its early stages here.

Things change over time. This is also the case in the timesharing business. The European legislator, who is well aware of this and already dealt with this type of business by adopting a directive on 26 October 1994, has recently adopted a new legislative act dealing with timesharing, thus bringing European legislation up-to-date. It was deemed necessary to modify the former European legislation to the evolutions in the business. The outcome is a new timesharing directive that can be considered to be broader in scope than its predecessor whilst based on the same ideas of harmonisation and consumer protection.

In recent years parallel trade in the pharmaceutical sector has been a hot topic. On September 16 2008 the European Court of Justice published its eagerly anticipated judgment on the refusal to supply by dominant pharmaceutical companies in the Syfait II Case. Recently, the Belgian competition authorities have also addressed this subject when dismissing an appeal by Bofar, an exporter of pharmaceutical products.

how a lingerie coupon led to a fundamental change of the Belgian Commercial Practices rules.

April 8 2009 - The Act of 31 January 2009 on the Continuity of Enterprises entered into force on 1 April 2009 (the “Act”). The disappointing results of the Act of 17 July 1997 on Judicial Composition Proceedings (‘gerechtelijk akkoord’ / ‘concordat judiciaire’) led the Belgian legislature to reform the framework of measures available to undertakings encountering (financial) difficulties (of the type where Chapter 11 is used in the USA).

April 16 2009 - In two recently published decisions, the College of Prosecutors (‘Auditorat’) ruled on requests for interim measures from Belgian Posters and Clear Channel against the granting by the Brussels-Capital Region of a public tender contract to JC Decaux (‘JCD’).

Carmen Verdonck and Stefanie Vyncke wrote the chapter on Belgian Law in the 2009 edition of 'Getting The Deal Through: Vertical Agreements'. This updated edition examines the regulation of distribution practices in jurisdictions worldwide.

The Internet contains a lot of information. In 2002, the total number of web pages was estimated at 2.024 million; by 2005 this estimate had risen to 11.5 billion2. The ever- increasing amount of information found on the Internet also has disadvantages. In this  jungle of information, it is getting harder and harder to see the wood for the trees.

FAQ ON THE BELGIAN LAW OF 27 JULY 1961 ON THE UNILATERAL TERMINATION OF EXCLUSIVE DISTRIBUTION AGREEMENTS OF INDEFINITE DURATION.

Belgium is one of the very few countries in the world with a specific legal regime for the termination of certain distribution agreements, in addition to a law on agency contracts. In other countries, the Belgian Law of 27 July 1961 on the unilateral termination of exclusive distribution agreements of indefinite duration (“the Law”), which is – in contrast to legislation on agency contracts – not harmonised at a European level, often gives rise to surprise, disbelief and specific questions. Below I have listed the most frequently-asked questions with my general, summarised answers.