Team of Kocks & Partners at the farewell reception of Mr. Peter Fuchs (AdvantageAustria)

Kocks & Partners have been for many years the preferred lawyer of AdvantageAustria in Brussels, Belgium.  We were happy to be invited at the yearly Christmas reception which was this year also the farewell reception of Mr Peter Fuchs.  Pictures are here.  We are looking forward to continue our cooperation with Mrs Martina Madeo.

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Kocks & Partners – Wirtschaftsrecht kompakt Oktober 2014

Here you can find the newsletter (in German) of Kocks & Partners about business law in Belgium from Oktober 2014, dealing with topics: steuerrecht, channeling, mehrwertsteuer, gesellschaftsrecht, eigentumsvorbehalt, insolvenz

Unfair Commercial Practices: UNIZO living on the edge

UNIZO is a well-known and well-established national defender of the rights of entrepreneurs and SME‘s.

As a white knight, UNIZO fights against commercial injustice and everything that can cause harm to the Belgian business scene.

One of the examples is the battle against companies as XL MEDIA, which send UNIZO’s members commercial offers disguised as transaction forms.  Of course, there are always less attentive members who pay the transaction form not knowing it was only a commercial offer.  Luckily, UNIZO warns its members for such unfair commercial practices.

Otherwise, I would have probably paid myself the transaction form I received from UNIZO which is only a commercial offer to become member…

Builders be careful what you shout on the streets of Belgium… the new Belgian anti-sexism Act

sexism anti-discrimination

Since August 3, 2014, builders and other street workers are warned in Belgium: a new anti-sexism Act came into force.

As it has become the habit of the powers-to-be to write the rule of law in such way only (expensive) lawyers understand what is meant (and even then…), the Belgian Institute for Equality of Women and Men published a manual for the new Act.

From now on and according to this manual, shouting following sentences could make you end up in prison or fined:

– ‘a directors meeting is not a tupperware-evening’

– ‘a woman has nothing to do on a construction site’

– ‘what a sissy’

– ‘again somebody who is spending the money of her husband on shoes’

– ‘how much?’

Or as the Dean of the University of Leuven said: ‘shouldn’t we accept as society that some people can’t help it to be plain blunt?’

Corman-Collins vs. La Maison du Whisky – where is the winner?

Title:
Judgement of the European Court of Justice – Case: C-9/12 (Corman-Collins SA v. La Maison du Whisky SA)

Scope:
Interpretation of Article 2 und Article 5 (1) (a) and (b) of Council Regulation (EC) No 44/2001 (‘Regulation No 44/2001‘)

Summary of facts:
The Belgium based Corman-Collins SA (‘Corman-Collins‘) had a commercial relationship with La Maison du Whisky SA (‘La Maison du Whisky‘), established in France. The contract consisted of Corman-Collins‘ purchase of whisky from La Maison du Whisky and the resale of the beverages in Belgium. After La Maison du Whisky unilaterally ended the commercial relationship, Corman-Collins sued for payment of compensation in lieu of notice and additional compensation under the Law of 27 July 1961 on Unilateral Termination of Exclusive Distribution Agreements of Indefinite Duration (‘Belgian Law of 27 July 1961‘).

Legal issues:
1. Jurisdiction: Is Article 2 of Regulation No 44/2001 a precluding rule of jurisdiction in regard to Article 4 of the Belgian Law of 27 July 1961?
2. Interpretation: Does either Article 5 (1)(a) or (b) of Regulation No 44/2001 cover a distribution agreement?

Ruling of the Court:
1. Article 2 of Regulation No 44/2001 must be interpreted as follows: Is the defendant domiciled in a different Member State than the court, it precludes the application of national rules of jurisdiction such as Article 4 of the Belgian Law of 27 July 1961.
2. Article 5 (1) (b) of Regulation No 44/2001 relating to the supply of services is applicable to the situation in which a plaintiff established in one Member State has an exclusive distribution agreement with the defendant established in another Member State. A further criterion for the applicability is that the distribution agreement contains specific terms, binding the parties in matter of the distribution by the distributor of goods sold by the grantor.

Comments:
Although at first hand, it looks nothing has changed (the competent Court will still be the Belgian Court, albeit through another reasoning), the interesting question lies deeper. The case-law of the highest Court in Belgium states that a Court does not have to examine the facts to solve the question of its jurisdiction, but can base its ruling on the words of the writ. In fact, one only had to write in the writ that there is/was an exclusive distribution agreement, and the Belgian Court would accept its jurisdiction on basis of art. 4 of the Belgian Law of 27 July 1961. The European Court now forces the Belgian Court to investigate whether art. 5 (1) (b) Regulation No 44/2001 apply by looking into the stipulations of the agreement… which is part of the facts. Does this mean that the Belgian Courts will be forced to investigate the facts to solve the question of their jurisdiction?

Uber going under (2)

Some time ago, I wrote about the seizure of some UberPop vehicles in Brussels.

In the meantime, the battle has become more serious: a few of the official Brussels taxi companies took Uber to Court and the latter ruled 2 days ago that Uber will have to pay an indemnity of € 10.000,- per breach of Brussels’ taxi regulation. Or to put it simple: € 10.000,- per executed trip.

I will not start analysing the (in)famous Brussels taxi regulation at this point (maybe later), but let’s have look at 2 basic principles often ignored by Belgian Courts: jurisdiction and admissibility of the claim.

Jurisdiction: first of all, one can question on which grounds the Belgian Courts would have jurisdiction in this case.  Even when we would consider Uber’s activities as delivery from services, one has to take a close look at the exact contents of these services.  In my opinion, it would be too easy to state that because the UberPop cars drive around in Brussels, Uber itself delivers services directly on Belgian territory.  All drivers are independent drivers who only use Uber as a sort of virtual dispatcher.  One can question whether these dispatching services can simply be localised where drivers are using them or should be localised where Uber performs/organizes them (probably California, USA).  In the latter case, one could argue against the jurisdiction of Belgian Courts.

Admissibility: to bring a claim before Court under Belgian law, the claimant is not the only one who needs to have a certain quality, but also the plaintiff.  Just as one who has no interest at all cannot file a writ, one also can’t file a writ against somebody with no connection to the issue.  Given the nature of the business model of Uber (independent drivers), one can question whether or not the Court ruled the penalty against the right party.  Firstly, one could argue – similar to the pleas of the people behind the Peer2Peer programs – that Uber itself does nothing illegal by just offering dispatching services.  It are actually the drivers themselves who break the law (even if…).  Moreover, as those drivers are all independent, one could question whether the Court can hold Uber responsible and that it’s even impossible for Uber to stop any possible breach (which would be a ground to overrule the accorded penalties).  You could say that Uber can stop it all by just shutting everything off in Belgium, but then again nobody forced the internet providers to shut the internet down because of illegal downloading from (independent) users.

To be continued…

The lawyer and the media

nulens saltalamacchia hertenweg murderMr. Kris Luyckx is one of the most famous criminal defense lawyers of Belgium.  Here you see him defending one of the accused in the Nulens and Saltalamacchia vs. Hertenweg murder trail.

Some say criminal lawyers are only looking for media attention and trials covered extensively in the media.

Some even say that they only have eye for the camera…

Picture ©HBVL