The lawyers of the Family Law & Divorce practice group have years of experience acting in all facets of Wills and Estates, including:

• Wills;
• Executors Responsibilities and Commissions;
• Challenging a Will and Estate Litigation;
• Family Provision;
• Guardianship and Administration;

If you have questions with regard to Wills and estates in the Dutch jurisdiction, it is crucial to obtain expert legal advice. Our lawyers can provide you with advice at a crucial time and liaise with the executing notary.

Further information

For additional information please feel free to contact our Wills and estates contact person. Your comments and questions are always welcome.

When a personal matter such as divorce, questions about custody, or any other matter surrounding marriage dissolution is in question, and proceedings are likely to take place in the Dutch jurisdiction, it is vital that you have experienced legal representation by a Dutch divorce lawyer who deals with International Divorce Cases on a daily basis and who is familiar with the challenges the expatriate faces under such conditions.

Netherlands Divorce Attorneys

The divorce laywers of the Kernkamp Advocaten Family Law Practice Group are there to protect the interests of our clients and pursue the outcome they want. As every individual is unique, so is every family law matter. On top of that every international divorce case has its own challenges, with issues like jurisdiction, service of process, conflict of laws, international conventions and foreign law, foreign pre-nuptial contracts. Our divorce laywers use their experience in the Courtroom and understanding of the system to deal with those aspects.

It is a fact that divorces with international components do present divorce lawyers with uniqe challenges and opportunities. But apart from these challenges, the assistance of our divorce lawyers is not all that different from the assistance you would expect in your own jurisdiction.

Some divorces are amicable, and the two parties are able to determine how they want to divide assets, support matters and how custody will be managed. Others involve matters that are contentious and no resolution is possible through negotiations and the court must decide. Our team of Dutch divorce lawyers is prepared to evaluate your personal situation and provide the skilled legal support that is required to bring the matter to a resolution.

For additional information you can click on one of the articles on the right of your screen. Your comments and questions are always welcome.

Talk to a Netherlands Divorce Lawyer Today

Please feel free to contact our Family Law Practice Group contact person.

The Kingdom of The Netherlands has implemented the (revised) European Transfer of Undertaking Directive (2001/23/EC). On the basis of Articles 7:662-666 of the Dutch Civil Code, the rights and obligations arising from the contracts of employment of the enterprise's employees are transferred to the new owner, but for one year after the date of transfer the old employer remains severally liable for obligations already existing at the time. The above rule applies both to enterprises in the market sector and to non-profit-making organizations. It does not apply to the distribution of an enterprise's assets as a result of the owner's bankruptcy .

The take-over of private and public limited companies through the buying and selling or exchange of shares, which occurs very frequently in the Netherlands, does not fall within the scope of these Civil Code provisions, since in that case there is no change of employer.

What is a transfer of undertaking?

The defenition of a transfer of undertaking is set out in the EU Directive. Article 1(b) states that a transfer has taken place when "there is a transfer of an economic entity which retains its identity, meaning an organised grouping of resources which has the objective of pursuing an economic activity, whether or not that activity is central or ancillary".

Transfer of undertaking is not defined by Dutch labour law. Based on European and national Case Law it can be derived that a transfer of undertaking exists where an economic entity is transferred and retains its identity.

The European Court of Justice has ruled that to determine whether an economic entity retains its identity after a change in ownership, it is necessarily to consider all the facts characterizing the transaction in question, including:

• the type of undertaking or business;
• whether or not the tangible assets of the business, such as buildings and movable property, were transferred;
• the value of its tangible assets at the time of the transfer;
• whether or not the majority of the employees was taken over by the new employer;
• whether or not the customers were transferred;
• the degree of similarity between the activities carried on before or after the transfer period; and
• the period, if any, for which those activities were suspended.

According to the European Court of Justice these factors cannot be considered in isolation – they are simply part of the overall assessment that must be made and cannot therefore be considered in isolation. It is for the national court to make the necessary factual appraisal, in the light of the cirteria for interpretation set out by the European Court of Justice.

Dutch law

Under the Dutch implementation of the directive the transferee, by virtue of law, becomes party to the existing employment relationships with employees of the undertaking subject to the transfer. This means that this transferee will have to respect all conditions of employment existing with the transferor at the time of the transfer.

At the time of a transfer of undertaking, it is not possible to agree upon deviations in employment terms.
The transferee is under an obligation to offer the employees a benefits package identical to the package that the employee had with the transferor. It is not advisable to renegotiate employment terms at the time of the transfer of undertaking, as these alternative terms will be held to be invalid. Hence, alternative terms should be offered at a later occasion, when the transferor has all the possibilities the transferee previously had.

Protection against Dismissal

The transfer of an undertaking, business or part of an undertaking or business does not in itself constitute grounds for dismissal by the transferor or the transferee. However, dismissals may take place for economic, technical or organisational reasons entailing changes in the workforce.

Further information

The consequences of a transfer of undertaking can be complex. Our firm has ample experience in advising and supporting our clients during the process. For further information regarding our services, please contact our contact person of the Labour and Employment Law Practice Group.

The Rotterdam Guarantee Form is traditionally used by Dutch maritime lawyers to put up security in shipping in the Netherlands. The form was created by the Commission Rotterdam Guarantee Form to prevent unnecessary delay due to discussions on wording, each time a vessel is arrested. The Rotterdam Guarantee Form is usually considered to be an acceptable form of security and thus generally contributes to a quick release form arrest. A copy of the form is embedded in this page.

For further information, please feel free to contact our Transport and International Trade contact person.

European Antitrust and Competition Law

The European antitrust area covers two prohibition rules set out in the European Treaty on the Functioning of the European Union.

• First, agreements between two or more firms which restrict competition are prohibited by Article 101 of the Treaty, subject to some limited exceptions. This provision covers a wide variety of behaviours. The most obvious example of illegal conduct infringing Article 81 is a cartel between competitors (which may involve price-fixing or market sharing).
• Second, firms in a dominant position may not abuse that position (Article 102 of the Treaty). This is for example the case for predatory pricing aiming at eliminating competitors from the market.

The European Commission is empowered by the EU Treaty to apply these prohibition rules and enjoys a number of investigative powers to that end (e.g. inspection in business and non business premises, written requests for information, etc). It may also impose fines on undertakings who violate EU antitrust rules. Since 1 May 2004, all national competition authorities are also empowered to apply fully the provisions of the Treaty in order to ensure that competition is not distorted or restricted. National courts may also apply these prohibitions so as to protect the individual rights conferred to citizens by the EU Treaty.

Dutch Antitrust and Competition Law

The Netherlands Competition Authority (NMa) enforces the Dutch Competition Act, which came into effect on 1 January 1998. The Dutch Competition Act is based on and closely linked to European law. The Act is based on a prohibition system very similar to that of Articles 81 and 82 of the EU Treaty.

The services of our antitrust and competition lawyers include:

• civil antitrust litigation;
• merger filings, investigations and litigation;
• other civil government investigations;
• antitrust counseling and compliance.

For further information regarding our services, please contact our contact person.

For more than 30 years, the lawyers of Kernkamp Advocaten have focused on serving public and private sector clients operating in the many facets of the transportation industry.

The lawyers of our Transport and International Trade Practice Group assist multimodal carriers, trucking companies, logistics providers and insurers, with a full range of legal services, with regard to issues like:

• transportation agreements
• equipment leasing, pooling, repair and maintenance and management agreements
• freight forwarder agreements
• warehousing agreements
• cargo loss and damage
• Liability under the CMR-convention
• Issues of Dutch national road transport law (book 8 DCC)

If the case at hand is transportation related, your legal needs require assistance of our specialized team of Dutch lawyers who understand the industry and are able to advise on a wide range of legal issues.

Further information

For additional information please feel free to contact our Transport and International Trade Practice Group contact person.

There is no such thing as a Dutch Franchise Act. The laws of The Netherlands do not contain a specific act with repect to franchise and distribution agreements. Hence, a franchise agreement under Dutch law is governed by the rules of general civil law, together with specific rules that are applicable to specific parts of the contract.

A franchise agreement is a Contract by which the franchisor licenses its trade name and/or business system and practices for a fee to an independent company (the franchisee). The licensed rights can include the licensed right to use trademark names, secret commercial know-how and other distinguishing features, in the sale of products or services. The use of franchise agreements is widely spread in The Netherlands, but beware that specific arrangements can be prohibited by EU and national competition law.

The lawyers of our firm represent clients who are interested in entering or exiting their franchise relationship on their own terms. For individuals seeking to invest in a particular franchise opportunity, we will review the terms and conditions set forth in your franchise documents and provide advice and counsel regarding material provisions, including:

• financial obligations;
• the length/term of the agreement;
• choice of venue and choice of law with respect to disputes;
• renewal rights;
• territorial exclusivity;
• requirements for remodelling or refurbishing the location;
• the goodwill associated with the franchisor's trademarks;
• restrictions on transfer;
• default/termination provisions.

For franchisees looking to exit their franchise relationships, our attorneys are skilled and experienced in drafting and negotiating all of the legal documents required to effectuate the sale of your franchise investment.

Further information

For additional information please contact us. Your comments and questions are always welcome. Please feel free to contact our contact person.

An introduction

Bankruptcy in The Netherlands is governed by the Dutch Bankruptcy Act. Intra-EU cross-border insolvency proceedings are governed by Council regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings. Cross-border insolvency proceedings that do not fall within the scope of the EU Insolvency Regulation will be governed by the general rules of Dutch Private International Law.

The Dutch Bankruptcy Act entered into force on 1 September 1986 and has been amended several times. Three species of insolvency procedures are to be distincted in the present Netherlands Bankruptcy Act:

• bankruptcy;
• suspension of payments;
• debt restructuring for private individuals.

Bankruptcy

Any debtor (being a natural person or a private legal entity) can be declared bankrupt by the District Court. Applications for bankruptcy can be filed by:

• the natural person or private legal entity itself;
• a creditor, or
• the public prosecutor.

Bankruptcy proceedings

If the petition is granted, the district court will declare the debtor bankrupt and appoint one or more trustees (in Dutch: curator). The trustee is charged with the administration and liquidation of the bankruptcy estate.

As a general rule, the District Court will only declare a debtor in state of bankruptcy if the debtor has ceased to pay. This is generally considered to be the case if various creditors have difficulty in collecting outstandings.

If the debtor is properly summoned, bankruptcy may be declared in a default judgment. In that case the debtor has a right to ask for a review within 14 days after the judgment of bankruptcy. Appeals must be lodged ultimately within eight days. Both review and subsequent appeals have no suspensory effect.

Suspension of payments

With the suspension of payments procedure the Dutch Bankruptcy Act intends to provide for a legal instruments in order to restructure and continue an enterprise in financial distress, which in whole or in part is viable. The suspension of payments procedure, however, rarely ever fulfilled its goal and companies that do ask for suspension of payment generally are declared bankrupt within a few weeks after the initial decision on the suspension of payments request.

Debt restructuring for private individuals

This relatively new arrangement under the Dutch Bankruptcy Act provides a possibility for private individuals in a debt position without any prospects to make a fresh start without being chased for life by his creditors.

further information

We are frequently consulted by clients from abroad with regard to issues related to Dutch Bankruptcy Law. Our firm's lawyers represent both applicants and defendants in bankruptcy proceedings before all Dutch Courts.

Obviously, this is a very brief introduction that will not answer your specific questions. For additional information please feel free to contact our contact person. Your comments and questions are always welcome.

Lease of retail business premises in the Netherlands is governed by mandatory rules of law, that serve to protect the interests of the tenant and used to serve the stable development of the Dutch economy after the second world war. Although the justification for the strict rules and regulations no longer plays any role whatsoever, the rules still are in force today. This is a particularity of Dutch law landlords and tenants are confronted with on a day-to-day basis.

Under these mandatory rules a lease term should either be a maximum of two years, or a minimum total of ten years. If the parties fail to observe mandatory law, this can result in surprises. Where the lessor and the lesse agree to a fixed seven year term, the lessee can successfully force an extension of the lease term with three years (so in this example the total lease term will be ten years). After ten years, the contract will continue for an indefinite period of time; either party may then give notice of termination with a notice period of one year.

What is retail lease?

The court will have to establish whether a lease falls within the scope of the mandatory law on retail lease. From case law, it is known that retail lease includes the lease of shops, restaurants (including take-outs / take-aways), bars / cafés, and hotels, insofar as these businesses are established inside immovable property (real estate) and insofar as (part of) the premises of these businesses are accessible to the public. As this description is rather vague, there is a lot of case law about whether or not a certain agreement is a retail lease agreement. It has been decided, for instance, that the lease of petrol stations is retail lease in the sense of the law. The lease of cinema’s on the other hand, was not regarded as retail lease.

Lease term

The law provides for it, that the term for retail lease is either a maximum of two years, or a total of ten years (normally divided into two five year periods, but other combinations such as seven plus three years are also possible). With permission of the Cantonal Court, it is possible to deviate from these standard terms. If permission of the Cantonal Court is not obtained and the contract contains a non-standard term (for instance a total term of six years without prolongation), either party may invoke prolongation of the lease term up to a total of ten years.

Termination of a lease contract

In general, lease of business premises may only be terminated before the agreed end date in specific circumstances. This is considerably easier for the tenant than for the landlord. If the lessee does not agree with a termination initiated by the lessor, the lessor will always have to bring proceedings before the Cantonal Court in order to have the agreement terminated.

The lessee may terminate the agreement at the end of the first five year term or at the end of the ten year term by giving notice of termination at least one year before the end of the term.

The possibilities for the lessor are more restricted. First of all, a notice of termination without mentioning a specific ground for termination is to be held null and void. According to the law, possible grounds for termination by the lessor during the first five years of the agreed term are:

• business operations of the lessee are not "as benefits a good lessee"
• the lessor urgently needs the premises for his own use.

Most important example of the first ground for termination is non-payment of rent due; however, other examples do of course exist. From case law comes the example of a petrol station operator who frequently worked while under the influence of alcohol; this proved to be sufficient grounds for termination.

After the second five year term, the lessor may also ask for termination of the agreement on the grounds that his interest to end the agreement is more compelling than the interest of the lessee to continue the agreement. The interests of both parties will be weighed by the Cantonal Court.

Flexibility

The demands of the market are often more flexible than this relatively rigid system. For example, parties might want to agree to lease for no longer than seven years, without an automatic extension to ten years in total. And, especially in case of so-called "shop-in-shop" lease, the location of the premises might have to be (relatively) flexible as well.

Especially for these matters, the dutch legislature has introduced the facility of the so-called "derogational clauses" ("afwijkende bedingen"). When parties wish to agree to enter into a non-standard lease contract, they will have to ask the Cantonal Court for prior permission to enter into this agreement.

Certain clauses will never be allowed by the Cantonal Court. To give an example. Clauses that extend the possibilities of the lessor to terminate the agreement are not permitted under Dutch law.

The legal system in Holland seems rigid at first sight. However, if one makes good use of the legal possibilities, it is no problem to get the desired result. Modern concepts, like the "shop-in-shop"-concept flourish in The Netherlands.

Further information

For additional information please feel free to contact our Real Estate contact person. Your comments and questions are always welcome.

This article outlines the personal liability of directors of limited companies (B.V.’s) and public limited companies (N.V.’s) in the Netherlands.

Civil liability

If a director acts in a manner that may later turn out to be detrimental to the company, this does not automatically lead to personal liability. Taking calculated risks is, after all, part of running a business and being an entrepreneur, so the law allows directors a certain amount of discretion in fulfilling their responsibilities as a director.

Article 2:9 of the Dutch Civil Code requires directors to fulfil their duties towards the legal entity with due care and attention. Should they fail this duty of care, then the directors are personally liable for any damage caused to the company as a result thereof. The Dutch supreme court has ruled that such is the case if the directors have acted in a manner that constitutes serious misconduct. The Supreme Court holds that if the actions of the directors held liable would not have been taken by any other reasonably acting and experienced director in their stead, then this constitutes serious misconduct.

Examples of circumstances wherein directors have been held liable by their company are:

• Diverting the company’s funds for personal use;
• Fraudulent or illegal practices;
• Taking large and unsecured financial risks.

Article 2:9 only covers the directors’ personal liability towards the company itself. In certain circumstances, however, creditors of the company can also hold the directors separately liable for damage resulting form actions taken during their directorship, such as providing incorrect information or making promises on behalf of the company that they knew the company could not fulfil.

Liability during bankruptcy

Should a company be declared bankrupt, then the Ditch Civil Code provides the trustee in bankruptcy with the means to hold the company directors personally liable on the following grounds.

The law states that on the bankruptcy of a company limited by shares, each director shall be jointly and severally liable to the bankruptcy estate for the amount of the company’s debts that cannot be satisfied out of the liquidation of its assets if the management has manifestly performed its duties improperly and it may be assumed that these actions constituted an important cause of the bankruptcy.

The law automatically holds that the directors have performed their duties improperly in the following circumstances:

• The management has not filed the company’s accounts within 13 months of the end of the financial year;
• The books and accounts of the company have not been kept in accordance with good accounting practices and do not provide a true insight into the financial position of the company.

In such cases the burden of proof is shifted to the directors, who must then prove that their failure to file the accounts or administrate properly did not constitute an important cause of the bankruptcy. In such cases it is extremely difficult for the directors to avoid liability.

If the trustee is of the opinion that there are other grounds for personal liability the trustee can also hold the directors liable, though it is then up to the trustee to prove that there has been serious misconduct leading to bankruptcy. Should the trustee believe that persons who are not officially directors, but can be deemed to have run the company, are largely responsible for the bankruptcy, Dutch law provides that the trustee may hold these persons liable in the same manner as the actual company directors.

Fiscal liability

Directors of a Dutch company, such as a B.V. or an N.V., can also be held personally liable for unpaid tax debts of the company, in such cases where the directors have not reported the inability of the company to pay to the tax authorities. This form of liability regards taxes such as wage withholding tax and VAT ("BTW"), owed by the company to the Dutch Treasury. Once the tax authorities have made a director liable for overdue taxes imposed on company, it is up to the director to prove that the tax debt was left unpaid for reasons not attributable to him. Fiscal liability often occurs after bankruptcy, as the company is then no longer able to pay its own tax debts.

Further information

In most cases liability of legal entities appointed as directors also leads to liability of the persons behind that legal entity, even if both are foreign companies or persons living outside of The Netherlands. Should you be confronted with claims by third parties or a trustee in bankruptcy relating to the directorship of a company, it is important to seek legal advise at an early stage. Should you be considering liquidating a company in the Netherlands, it is of the utmost importance to identify any possible grounds for liability and to act accordingly before actual liquidation

Our firm has many years of experience in advising on matters regarding bankruptcies and civil liability of directors. We have also have inside expertise as court appointed liquidators at the court of Rotterdam, and can give you an immediate insight into the possible actions of your creditors or a trustee in case of bankruptcy.

Please feel free to contact Maria Bowmer, our Company and Corporate Law contact person, with any questions you may have.