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Lydian’s Legal Update Webinar
12 December 2013 - Brussels
Introduction
Welcome to Lydian’s Legal Update Webinar. This webinar is the last
in a series of four this year.
In order to guarantee the audio quality, you are all 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.
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Agenda
Sales representatives: some recent case law
Employment team
The Constitutional Court of 7 November 2013 annuls important parts
of the Decree on Land and Building Policy: the end of the social
contribution for developers in housing construction projects?
Real Estate team
Anti-money laundering for lawyers
Corporate team
New Belgian Arbitration Act
Dispute Resolution team
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Sales representatives – some recent case law
An Van Doorselaer
Associate
Employment team
Sales representatives – some recent case law
A sales representative is an employee who: as his/her main obligation
searches for and visits clientele outside of the company premises
to negotiate and/or close contracts in the name of and for the employer (art. 88 ECA)
Therefore, the following are NOT sales representatives: A seller of phone subscriptions at a supermarket stand, who only
visits potential clients’ houses occasionally (Labour Court of Appeal Brussels, 16 November 2012)
Director Strategic Partnership who mainly operates through email and visits fairs, but not clients’ offices (Labour Court of Appeal Brussels, 7 December 2012)
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Sales representatives – some recent case law
A qualification as a sales representative relevant for
amongst other things the:
Non-compete clause
Clientele indemnity
Non-compete clause: different rules (art. 104 ECA)
Example: Employer is not required to pay a non-competition
indemnity
BUT if present, employee is assumed to have brought in
clientele
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Sales representatives – some recent case law
Clientele indemnity is due if:
Sales representative brought in new clients
Employment contract is terminated by employer without serious
cause or by employee for serious cause
Minimum seniority of one year exists
The indemnity is not due if employer proves termination does not
cause prejudice to the employee
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Sales representatives – some recent case law
Clientele indemnity: Labour Court of Appeal Brussels, 2
November 2010
Employee sells glasses, has non-compete clause
Can employer prove employee did not bring in new clientele or
did not suffer prejudice due to dismissal?
Employer cannot prove employee did not bring in new clientele
(i.e. new clients or former clients); a decrease in business
numbers not sufficient
Employer cannot prove employee suffered no prejudice:
employee working for competitor and being able to visit the
same clients is not sufficient
Clientele indemnity due
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Sales representatives – some recent case law
Clientele indemnity: Labour Court of Appeal Mons, 11
April 2013
Sales representative in real estate sector with no non-compete
clause
Can sales representative prove he brought in clientele?
Did not bring in clientele, as this must imply significant possibility
of future orders -> people who sell their houses are not loyal
clients who renew contract real estate agency
No clientele indemnity due
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The Constitutional Court of 7 November 2013 annuls important
parts of the Decree on Land and Building Policy: the end of the
social contribution for developers in housing construction
projects?
Daphné Verbauwhede Associate
Real Estate team
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On 7 November 2013, the Constitutional Court nullified
important parts of the Decree on Land and Building Policy
Two judgments by the Constitutional Court regarding the decree
by the Flemish Region dated 27 March 2009 concerning the Land and Building Policy (“decreet Grond- en Pandenbeleid”):
1) Judgment dated 7 November 2013 no. 144/2013 concerning the regulations with regards to “living in your own region” (“wonen in eigen streek”)
2) Judgment dated 7 November 2013 no. 145/2013 concerning the regulations with regards to the social contributions for the implementation of a social housing policy
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On 7 November 2013, the Constitutional Court nullified
important parts of the Decree on Land and Building Policy
§ 1) Judgment dated 7 November 2013 no. 144/2013 concerning
the regulations with regards to “living in your own region” (“wonen in eigen streek”)
What do these regulations imply?
Objective: the regulation imply that houses in certain municipalities, which have
experienced a strong and substantial immigration, are to be reserved for
municipalities’ own inhabitants.
Consequence: specific conditions to be complied with in case of a transfer of title of
certain lots and buildings constructed on them.
Condition: the existence of an adequate bond between the person acquiring the
property and the municipality in which the property is situated.
European Court of Justice dated 8 May 2013
The regulations violate several fundamental rights, such as freedom of movement
and establishment, the free rendering of services and the free movement of capital.
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On 7 November 2013, the Constitutional Court nullified
important parts of the Decree on Land and Building Policy
Constitutional Court decision of 7 November 2013
The regulations conflict with several fundamental rights
Conditions of the Decree are increasingly less compatible with the
original objective of protecting the less-wealthy people when entering the
real estate market.
There exist less limiting and less discretionary measures to reach the
objectives set out in the Decree (e.g. subsidies).
Consequence: the regulations with regards to “living in your own
region” are to be nullified in its entirety.
This nullification has a retroactive effect, despite the request of the
Flemish Government to mitigate the nullification
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On 7 November 2013, the Constitutional Court nullified
important parts of the Decree on Land and Building Policy
§ 2) Judgment dated 7 November 2013 nr. 145/2013 concerning the regulations with regards to the social contributions for the implementation of a social housing policy
In case of construction or subdivision projects of a certain dimension,
the principal or developer is obliged to reserve a certain percentage
of the houses or lots for social ends (this is the so-called “social
contribution”).
To compensate the principal or developer, the decree sets out a
number of tax incentives and subsidy mechanisms.
Constitutional court
These compensation measures can be considered as state aid, meaning that these
measures require prior notification to the European Commission
These measures are thus to be nullified
Because of that, private actors are subject to this social contribution without any
form of compensation
Such social contributions is not consistent with the objective to implement a social
housing policy
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On 7 November 2013, the Constitutional Court nullified
important parts of the Decree on Land and Building Policy
This nullification has a retroactive effect as well, despite the request of
the Flemish Government to mitigate the nullification.
All projects developed in accordance with the Decree on Land and
Building Policy are hereby affected.
A tricky situation: the Constitutional Court nullifies the compensation
measures, but it does not explicitly nullify the social contribution.
Consequence: it is unclear how this social contribution is to be
implemented and realized.
An initiative by the Flemish Government or Flemish Parliament is
required!
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Concept of Money Laundering
The conversion or transfer of money or assets in order to hide or disguise
their illegal origin or to help those involved in the realisation of a criminal act
— from where the money or assets come — to avoid the legal
consequences of their acts.
Hiding or disguising the nature, the origin, the place, the arrangement, the
movement, or the ownership of the money or the assets of which the illegal
origin is known.
Acquisition, detention, use of money or assets of which the illegal origin is
known.
Involvement in one of the acts described above (in the first three items),
(tentative) collaboration in committing such act, to help or incite or advise
someone to commit one of these acts or to ease its execution.
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Legislative framework and scope of application
for lawyers
Repressive article 505 Criminal Code
unlimited application and criminal sanctions
Preventive limited application ( e.g. terrorism; illegal drug/weapon traffic; serious tax fraud)
and only administrative fines
specific restrictions for lawyers due to professional secrecy (e.g. defending or representing client in litigation)
Scope of application for lawyers participating in the act for and on behalf of his client in any financial or real estate
transaction
buying and selling of real property or business entities
managing of client money, securities or other assets
opening or managing bank, savings or securities accounts
organising monetary contributions that are necessary for the creation, operation or management of companies
creating, operating or managing of companies, trusts or similare entities
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Legal requirements
Identification of clients
Ongoing monitoring
Retention of documents (five years)
Training of personnel
Reporting to the President of the Bar
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Prohibition on disclosure and immunity
It is prohibited to inform the client or any third party that a
report was made to the Financial Intelligence Unit or that
a criminal investigation relating to money laundering is
taking place.
When a suspicious transaction is being reported, the
lawyer must stop working for the client.
Reporting in good faith of a suspicious transaction will
provide immunity for all civil, criminal or disciplinary
claims, and no professional sanctions can be imposed
on the lawyer.
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Supervision and sanctions
Supervision
External supervision by:
Commission de contrôle or President of the Bar (OBFG)
The local Bars of the OVB
Investigations are conducted upon the request of the President of
the Bar or the CTIF/CFI, or by random selection
Sanctions
Disciplinary sanctions
Administrative fines of between EUR 250 and EUR 1.250.000
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New Belgian Arbitration Act
Marijn De Ruysscher Associate
Dispute Resolution team
What is arbitration?
Alternative Dispute Resolution
Solving disputes through a private dispute resolution
mechanism court proceedings
Ad Hoc or institutional arbitration (ICC, CEPANI, …)
Arbitral awards can be enforced like court decisions
Arbitration proceedings are always linked to a certain
country (= place of arbitration) and governed by that
country’s arbitration law
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New, modern Belgian Arbitration Act
No modification, but completely new Act (Part VI of the
Judicial Code)
Based on the UNCITRAL Model Law (= modernization
and harmonization) with some Belgian accents
Goal = strengthening Belgium’s position as centre for
national and international arbitration
Entry into force: 1 September 2013 for all new arbitration
proceedings as from that date; pending arbitration
proceedings remain governed by former Arbitration Act
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Highlights
New criterion for arbitrability: (i) any pecuniary claim, or
(ii) any non-pecuniary claim with regard to which a
settlement may be made
Electronic communication: confirmation of existing
practice
Contractual challenge procedure: expressly allowed to
avoid courts judging otherwise
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Highlights
Modified setting aside proceedings
No longer possibility for appeal (avoid judicial backlog)
Only five courts of first instance have jurisdiction (specialization)
Certain grounds for setting aside have been removed (such as
those relating to certain formalities and “conflicting reasoning”)
One standardized delay: three months after receiving the award
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Highlights
Remittance of the arbitral award to the arbitral tribunal
Possibility for the court deciding on the setting aside of an
arbitral award
Objective = to save an arbitral award when such possibility exists
by sending the arbitral award back to the arbitral tribunal
allowing it to remove grounds for setting aside
In line with new CEPANI Arbitration Rules
Experience from other Model Law countries: courts are reluctant
to use this option
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Thank you for your attention.
Q&A
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