law

Insolvency law

What are the consequences of a bankruptcy - absent any fraud or mismanagement - of a private company for its shareholders and their shares

their shares have lost their value; no further consequences; the shareholder are under no obligation to deplete any deficit

Insolvency law

What are the consequences of a bankruptcy - absent any fraud or mismanagement - of a private company for its employees

liquidator will terminate the contract, unless and in so far employees are necessary for the business to be continued

Insolvency law

What are the consequences of a bankruptcy - absent any fraud or mismanagement - of a private company for its intellectual property rights owned by the company

the rights will be sold by the liquidator for the benefit of the creditors

Insolvency law

What are the consequences of a bankruptcy - absent any fraud or mismanagement - of a private company for the director of the company

he shall cooperate with the liquidator, provide information etc.

What is soft law?

Rules or guidelines that are not legally binding, but influence behaviour and policy.

They cannot normally be enforced in court.

hard law

Legally binding rules that must be followed and can be enforced by courts or authorities.

Examples:

statutes (laws)

regulations

legally binding treaties

public law

• area of law that regulates the organization and functioning of the state and the relationship between the state and individuals

• includes constitutional law, administrative law, and criminal law, and focuses on the exercise of public authority and the protection of citizens against misuse of state power

the principle of supremacy in EU law

means that EU law takes precedence over conflicting national law of member states, when a national rule conflicts with EU law, national authorities and courts must apply EU law instead

direct effect in EU law

means that certain provisions of EU law create rights and obligations that individuals can rely on directly before national courts, without the need for additional national legislation implementing those provisions

enactment process of legislation

refers to the procedure through which laws are formally created, typically involves proposal, discussion, approval by the legislative body, and formal adoption, after which the law becomes binding within the legal system

principle of trias politica

• the separation of powers, the constitutional principle that governmental authority is divided among three branches: the legislative, executive, and judicial branches

• this division is intended to prevent the concentration of power and ensure checks and balances

civil procedural law

• the set of legal rules governing how civil disputes between private parties are handled in court

• regulates matters such as filing a claim, presenting evidence, conducting hearings, and issuing judgments

purpose of civil procedure

• to provide a structured and fair process through which private legal disputes can be resolved by courts

• ensures that both parties have the opportunity to present their arguments and that decisions are made according to established legal rules

role that a judge plays in civil proceedings

oversees the process, ensures that procedural rules are followed, evaluates the evidence and legal arguments presented by the parties, and ultimately issues a binding decision resolving the dispute

contract law

• area of private law that governs agreements between parties that create legally binding obligations

• regulates how contracts are formed, interpreted, performed, and enforced, and it determines the legal consequences when a party fails to fulfill its contractual obligations

principle of freedom of contract

• the principle that individuals and organizations are generally free to decide whether to enter into a contract, with whom they contract, and what the terms of the contract will be

• however, this freedom may be limited by mandatory legal rules designed to protect weaker parties or public interests

property law

• regulates legal relationships between persons with respect to things, especially physical objects and certain intangible assets

• determines who has rights over property, how those rights are acquired or transferred, and how conflicts between different property rights are resolved

ownership in property law

• the most comprehensive property right a person can have over a thing

• typically includes the right to use the property, exclude others from it, and dispose of it, subject to legal restrictions imposed by law

difference between property rights and contractual rights

• Property rights are rights that apply against everyone (absolute rights), meaning the holder can enforce them against any person

• Contractual rights are relative rights that only exist between the parties involved in a contract

liability law

• often referred to as tort law

• concerns the legal responsibility of a person to compensate another for damage or loss caused by unlawful conduct

• determines under what circumstances a person must repair harm suffered by another

unlawful act in liability law

• behavior that violates a legal duty or infringes upon the rights of another person

• If such conduct causes damage and certain conditions are met, the person responsible may be required to compensate the injured party

main elements required for liability

requires several elements: an unlawful act, damage suffered by another party, a causal connection between the act and the damage, and the attribution of responsibility to the person who committed the act

company law

• governs the creation, organization, and operation of companies and other business entities

• regulates matters such as the formation of companies, the rights and duties of shareholders and directors, and the internal structure and management of corporate organisations

legal person in company law

• an entity that is recognized by law as having rights and obligations separate from the individuals who compose it

• Companies are legal persons, meaning they can enter contracts, own property, and be held liable independently of their shareholders

limited liability

• a principle according to which the financial liability of shareholders for the debts of a company is limited to the amount they have invested in the company

• their personal assets are generally protected from claims against the company

private international law

• also known as conflict of laws, deals with legal disputes that involve more than one national legal system

• determines which country’s law applies to a dispute and which courts have jurisdiction to hear the case

main functions of private international law

• performs three key functions:

• determining jurisdiction (which court can hear the case)

• determining applicable law (which country’s law should be applied)

• regulating the recognition and enforcement of foreign judgments

What is insolvency law?

• governs situations in which a debtor is unable to meet financial obligations toward creditors

• provides legal procedures for dealing with financial distress, including liquidation of assets or restructuring of debts

bankruptcy

a legal procedure in which the assets of an insolvent debtor are collected and distributed among creditors under the supervision of a court or appointed administrator, according to legally established priorities

data protection law

• regulates the collection, processing, storage, and use of personal data

• its main aim is to protect the privacy and personal information of individuals while allowing organizations to process data under certain legal conditions

intellectual property law

protects creations of the mind, such as inventions, literary and artistic works, designs, and trademarks, grants creators exclusive rights to use and exploit their creations for a certain period of time

employment law

regulates the legal relationship between employers and employees, establishes rules concerning employment contracts, working conditions, wages, dismissal, and the protection of workers in the workplace

company law: incorporated legal forms

• they can act independently and have the power to contract in their own name and have property and debts

• when a company is incorporated (formed), it becomes a separate legal person — distinct from its owners (shareholders)

Under Dutch Company Law, which legal steps need to be taken to dismiss someone as a director of a BV

1. A shareholders meeting must be held

2. Such meeting must be duly convened

3. The meeting shall decide on the dismissal

4. The majority of the shareholders votes will suffice

How are creditors ranked in insolvency

Estate creditors (costs of the bankruptcy)

Secured creditors (with pledge or mortgage)

Preferential creditors (e.g. tax authorities, employees)

Unsecured creditors

Supplie BV is an unsecured creditor, meaning it is paid last and therefore has a low chance of receiving payment.

Compaan B.V. builds motor homes (camper vans). On December 1, 10 (ten) engines for

the motor homes were delivered by seller Supplie BV, but not yet paid for. In the following

week, the engines were installed in the van frames by Compaan BV.

Before Supplie's - unsecured - bill was paid, Compaan BV is declared bankrupt by the

court and a liquidator was appointed.

a. Does Supplie BV have a good chance of getting paid?

b. Can Supplie BV claim payment from the director in private?

The liquidator will deal with the liquidation. All debts will be ranked during the insolvency. The bill of the unsecured business creditor is low in ranking. The estate claims and secured creditors will first be served.

b. The director is not bankrupt. The contract was with the BV, not with the director.

Decisions of the Court of Justice of the European Union

• are binding on all EU Member States.

• ensure uniform interpretation and application of EU law across the EU.

• National courts must follow CJEU rulings

starting at how many employees is a work council required according to the dutch civil code?

50

New EU rules on determining employment status (employee or self employed) (presumption of an employment agreement if 2 or more out 5 criteria apply)

5 indicators:

1. The platform in effect determines the upper limits for remuneration

2. If the platform requires the person performing the platform work to respect certain binding rules with regard to appearance, conduct towards the recipient of the service or to performance of the work

3. The platform supervises the work, including verifying the quality of the work, including by electronic means

4. The platform effectively restricts freedom to organize one’s work, in particular to choose working hours to accept or refuse tasks or to use subcontractors

5. The platform restricts the possibility for the worker to build a client base or to work for any third party

LEGITIMATE ALTERNATIVES TO EMPLOYMENT CONTRACTS

1. The interim worker is employed by the temp agency for the duration of the hiring (art. 7:690 DCC)/ temporary work

2. construction work (until smt is constructed)

3. Freelancer (journalists) ; lawyers; contract for services

Dismissal law the Netherlands

• Prior approval if economic reasons ( Social Benefit Bureau)

• Prior leave by cantonal court (= subdistrict court), restricted grounds

• Summary dismissal only for urgent reason

• Transition payment

SAFETY/LABOUR CONDITIONS/SELF REGULATION

• Special laws on working conditions

• Company’s right/obligation to issue safety instructions; compliance

• Codes of conduct; self regulation; enforceable under contract law

• #Metoo cases: ‘reporting lines’; ‘confidantes’

• For suspected ‘wrong doings’: EU directive Whistle Blowing Directive

EU Whistleblowing Directive – key purpose & rules

Directive (EU) 2019/1937 protects individuals who report breaches of EU law. It requires companies (≥50 employees) to provide internal reporting channels and protects whistleblowers against retaliation (e.g. dismissal or intimidation).

Positive discrimination

the practice of favoring individuals from underrepresented or disadvantaged groups in hiring, promotion, or education, often through quotas or preferential treatment

intellectual property rights

• Trade mark – protects symbols, logos, names that distinguish products/services from others. Used to prevent confusion.

• Trade name – protects the name of a business itself (company name).

• Patent – protects inventions or technical innovations. Grants exclusive rights to produce/sell the invention.

• Copyright – protects creative works (literature, music, software). Grants exclusive rights to reproduce/distribute.

Counterfeits (a fake or unauthorized replica of a genuine product)

• infringe trade mark rights because they copy brand identifiers (logo, name) that distinguish genuine products.

• i.e. Amazon fights against them to protect brand reputation and avoid loss of exclusive rights

Party A claims that its counterparty may not abort negotiations for a long term sales contract abruptly; especially not without offering to compensate for the costs and efforts made by Party A during the negotiations.

is an example of precontractual liability

defective will

a legally flawed testamentary document that fails to meet mandatory legal requirements, rendering it void or partially invalid. Common defects include improper execution (unsigned, no witnesses), lack of testamentary capacity, fraud, coercion, or unclear provisions, causing it to fail in its purpose

Glen no longer wants to sell this motor cycle. Therefore, Glen deletes the following

advertisement that he had placed on eBay: “for sale, motor cycle 1975, Zundap, $10,000”.

This relates to which key concept?

is an example of offer and acceptance

For property questions:

👉 “Is it attached?” → accession (Art. 5:3)

(if its not permanently attached it can be separated & then it can be the sons etc. belonging)

Rome I Regulation – Can parties choose any law for a contract?

Yes. Under Rome I Regulation Article 3, parties are free to choose the law applicable to their contract. This choice can be any legal system, even if it has no connection to the parties or the contract.

⚠ Limit: choice is restricted by mandatory rules and public policy (e.g. fundamental rights cannot be violated).

The court decision was the first court to rule in this dispute. Which options does the losing party have now?

The losing party may try going into appeal with a higher court or accept the defeat

Factors indicating employee-like status (pro-employee / control):

• Clients report complaints to the platform

• Worker cannot substitute customer requests to another platform worker

• Customer price is algorithmically determined by the platform

• Profit depends solely on accepting more customers

• Platform can refuse workers temporarily for refusing assignments

• Platform prescribes how work is done (route, uniform, etc.)

Principle: High platform control + limited worker autonomy

Factors indicating entrepreneurial/self-employed status (pro-platform worker):

• Worker is called ‘service provider’ to customer

• Worker can choose its display name to customers

• Worker has Chamber of Commerce / tax registration

• Work is characteristic of the platform (doesn’t affect status)

• Worker can choose whether to log in / work

• Worker arranges own insurance

• Worker identifies on socials as Platform entrepreneur

Non solicitation clause:

• means that an employee may not during the contract or 12 months thereafter actively steal away clients, relations, prospects or personnel of the company they have been employed by ‘protected business’

• Employee may not actively poach clients, prospects, or personnel from former employer for 12 months, passive acceptance of clients who approach you is allowed

• more narrowly targeted than non-compete → less restrictive for employees

Non-competition clause:

• Employee may not perform work for a competitor during employment + 12 months after.

• Applies in any capacity (full-time, part-time, consulting).

Key nuances:

Definition of “direct competitor” matters.

Investing in competitor may or may not be restricted (check wording).

Scrutinized in EU/US → companies favor non-solicitation clauses instead. (limit a person’s right to work)

Works Council / Employee Rights

Works council can:

Temporarily halt execution of employer plans if advice under Art. 25 is negative.

Stop a plan if court agrees.

Employer must pay costs/expenses for Works Council activities.

Applies to all employees, including juniors, depending on by-laws.

gig economy

• labor market characterized by short-term, flexible, and freelance work, often facilitated by digital platforms and apps that connect workers directly with consumers

• operates on an on-demand basis, allowing individuals to work as independent contractors rather than full-time employees, offering benefits like flexibility while often lacking traditional employment protections

Key Aspects:

• Common Platforms: Examples include ride-hailing (Uber/Lyft), food delivery (DoorDash), freelancer services (Upwork/Fiverr), and home services (TaskRabbit).

• Worker Classification: Workers are typically classified as independent contractors or self-employed, not as employees.

• HOWEVER whether these jobs are regarded as employment agreements under current dutch law depends on whether the worker in fact has a boss as in a proper employment agreement

one of the differences between dutch and US employment law

• under US law, a worker may be dismissed without prior interference of a court, in the Netherlands it is nearly impossible to dismiss a person without prior interference of the court, unless employee & employer agree on an exit

• US: flexible dismissal, low protection

• NL: protective dismissal, court involvement almost always required

rule under Dutch law (from June 19, 2015) regarding notifying an employer before starting a strike?

• No prior notification required before striking required

• Failing to notify does not automatically make a strike illegal

• Strike can only be prohibited for other legal reasons, not just lack of notification

A company that needs to hire employees for a limited period of time only can choose between the following options (choose the optimal):

A temp from a temp agency and a self employed worker (ZZP), or an employee with a definite term contract

What triggers product liability under Dutch law (Art. 6:185 ff DCC)?

• A defective product that causes damage

• Liability attaches to producer/seller

• Safety defects → producer must compensate for harm caused

What are the general legal implications of contracts signed by a company director:

Can a contractor or service provider claim payment from the company?

Can the contractor or supplier claim payment personally from the director who signed the contract?

• Director acts as the company’s representative: contracts are binding on the company, not the director personally

• Company is liable for payments or obligations under contracts signed by its director.

• Director is generally not personally liable unless they acted outside their authority or gave personal guarantees.

Under GDPR, what is the difference between a controller and a processor?

Controller: determines the purposes and means of processing personal data.

Processor: processes personal data on behalf of the controller.

Example: Atlanta AG = controller, (also employer who wanted the survey in the first place & hired Happy) decides why and how employee data is collected; Happy GmbH = processor, collects and stores data on behalf of Atlanta

GDPR reference for processor: Art. 28 GDPR

Is a directive directly applicable in EU Member States? Which Treaty provision applies?

No, a directive is not directly applicable.

It must be implemented into national law first.

Treaty provision: Art. 288 TFEU

the most characterizing difference between common law and civil law?

• Common law: courts are bound by precedent (case law)

• Civil law: courts rely on codified law, less bound by precedent

Which legal system do businesses generally prefer and why?

Common law preferred

Reason: greater predictability and legal certainty due to binding precedents

Why does a bank require a mortgage when granting a loan?

• Mortgage = strong security right (collateral)

• Bank can sell the property if debtor defaults

• Works even in bankruptcy (priority over other creditors)

How is a mortgage established under Dutch law?

Requires a notarial deed

Must be registered in the Kadaster (public register)

Only then is the mortgage legally valid

What type of goods can be subject to a mortgage?

Immovable property (real estate)

e.g. land, buildings

Why is it problematic if a minister comments on how courts should sentence?

Violates trias politica (separation of powers)

Executive (minister) interferes with judiciary (courts)

Courts must remain independent in decision-making

How does a minister’s statement about sentencing conflict with the rule of law?

Rule of law requires independent judiciary

Political influence on courts is not allowed

Minister’s statement undermines judicial neutrality and fairness

What is the proper role of a minister regarding criminal law and sentencing?

Can propose laws / policy changes (legislative influence)

Cannot interfere in individual court decisions

Must respect separation of powers

What is the legislative power and which parties belong to it?

Function: Makes laws

Parties: Parliament (e.g. House of Representatives, Senate)

Role: Debate, amend, and adopt legislation

What is the executive power and which parties belong to it?

Function: Executes and enforces laws

Parties: Government (ministers), police, administrative authorities

Role: Policy-making, governing, law enforcement

What is the judicial power and which parties belong to it?

Function: Applies and interprets laws

Parties: Courts and judges

Role: Resolve disputes, ensure justice, independent decision-making

End of March, a court decision was finally made in the legal conflict between Deliveroo and the [trade union]. Deliveroo regarded its deliverers as _

freelancers

The trade union argued that the deliverers were__

entrepreneurs and employees

The supreme court ruled that ___

the workers did not have characteristics of an entrepreneur; did not have their own clients , so they were regarded employees

An audit firm sends a draft of an engagement letter to a company called: "Unit 5 BV". In it, the services would cost EURO 20,000. Unit 5 returns it, after signing and without changing anything in the text. Which legal acts do you recognize?

offer and acceptance

Unit 5 returns the engagement letter, undersigned, without changing anything in the text. Upon receipt of the signed engagement letter, the audit firm calls up Unit 5 director to say this was a mistake and that the amount in the engagement letter should have been EURO 200,000.

What would you advise Unit 5 to respond?

invoke 3:35, Unit 5 could reasonably have assumed that 20,000 was the price that the audit firm had wanted to do the work for.

Article 3:35 Reasonable assumption of the intention to perform a legal act Towards him who has interpreted another person’s statement or behaviour, in accordance with the meaning that he reasonably could give to it in the circumstances, as a statement with a certain content of this other person addressed to him, cannot be appealed to the absence of a with that statement corresponding will (intention).