Brussels To The Point - June 2013 - Climate Change

Edited by Elke Janssens and Maxime Colle

EDITORIAL

by Elke Janssens & Maxime Colle

After a long, gloomy winter, spring has finally arrived in Brussels, along with the latest issue of Brussels to the Point. In this issue, we cover a number of interesting topics, which we hope you enjoy reading about, either at work or, even better, outside in the sunshine!

Climate change is a hot topic. The new Brussels Air, Climate and Energy Code (COBRACE) reflects increasing awareness of the importance of and need for environmental protection. Environmental challenges are by definition both economic and social in scope and therefore require an integrated, consistent regulatory approach. Such an approach is adopted by COBRACE, which contains measures targeting a wide variety of sectors, from energy to real estate. Some of the most controversial provisions pertain to off-street parking restrictions and low-emission areas.

In March 2013, both the Brussels Court of Appeal and the Dutch Supreme Court rendered interesting decisions acknowledging that legal advice prepared by in-house counsel should benefit from the attorney-client privilege. These decisions derogate from the prevailing opinion in Europe (based for the most part on the Court of Justice's case law) that only practicing members of the bar - thus not in-house counsel - are sufficiently independent and can consequently rely on the attorney-client privilege.

Limited liability is not always limited. One of the main reasons to opt for a limited-liability company is that - in principle - business partners, competitors, the authorities and third parties can make claims against only the company's assets. However, the on-going economic crisis has prompted an intensified search for persons who can be held liable for corporate debts. In this context, shareholder liability is a cause for particular concern.

This past April, the European Court of Justice held that the Flemish language decree, which requires employers based in Flanders to enter into cross-border employment contracts in Dutch (rather than English, for example), violates the free movement of workers. While important, it should be noted that this decision by the Court of Justice has not put an end to Belgium's strict language requirements in employment relationships.

Tax regularisation,which appeared to be a never-ending story, is finally coming to an end. The current tax regularisation system has been extended until 14 July 2013. A new (transitional) system will apply until 31 December 2013. Although no official texts are available yet, this transitional system will be more expensive but will be extended to serious and organised tax fraud. Afterwards, tax regularisation will no longer be possible.

The European Commission recently issued proposals to amend the Trade Marks Directive and the Community Trade Mark Regulation. These proposals are expected to be adopted in the first half of next year; while the new regulation will have direct effect, the Member States will have two years to transpose the amended directive into national law. This issue contains a brief overview of the most relevant expected changes.

Finally, we are proud to announce that our 2013 report onthe Belgian Private Equity and Venture Capital Market willbe issued in the coming days. We wish you pleasant reading.

THE BRUSSELS CODE ON AIR, CLIMATE AND ENERGY MANAGEMENT: A CROSS-CUTTING APPROACH TO ENVIRONMENTAL CHALLENGES

by François Tulkens & Maxime Vanderstraeten

On 31 May 2013, COBRACE (Code of Brussels for Air, the Climate and Energy Control) entered into force, to a large extent.¹ COBRACE consolidates and updates a number of environmental and energy-related regulations. It represents a small legislative revolution which aims to tackle the environmental challenges faced not only by the Brussels-Capital Region but by the world in general.

1. International challenges and objectives

The Brussels-Capital Region cannot escape the current energy crisis. Hence the need to reduce energy consumption while favouring renewable energy sources.

Moreover, in light of global warming, the Region has committed to meeting both global (the Kyoto Protocol and subsequent commitments) and European (the "3x20" Climate and Energy Package) targets in terms of the reduction of CO2 emissions.

Finally, the Region faces a public health issue due to poor air quality. In this regard, it should be noted that Brussels is unfortunately an area where fine particle emissions exceed EU thresholds.

2. A single regulatory framework - an integrated approach

COBRACE sets out to address these challenges by consolidating and amending a number of Brussels regulations on, for example, the energy performance of buildings (EPB), travel, air quality and the emissions trading system (ETS). At the same time, the Brussels legislature intends to implement a number of recently passed EU directives (including the recast EPB Directive, a new Energy Efficiency Directive, etc.).

The approach adopted by COBRACE is resolutely cross-cutting: air, climate and energy policies relate to the same sectors and involve the same players (buildings, transportation networks, the government, businesses and individuals) and should therefore be governed by a single regulatory framework.

This approach is also reflected in the new regional Air-Climate-Energy Plan. Belgium is already required to provide the European Commission with a series of plans on air quality, energy efficiency, etc. COBRACE now provides for a single five-year plan, incorporating various issues subject to the same strategic vision. The plan sets guidelines and measures to be taken to achieve at least the COBRACE objectives.

3. Environmental impact of the building sector

COBRACE includes measures specifically targeting buildings, which account for 59% of the final energy consumption in Brussels. In addition to the requirements of the current EPB ordinance, COBRACE establishes a system to evaluate the energy and environmental performance of buildings and sets out performance-based certification and labelling rules. It also creates an obligation for the owners and/or occupants of a building or group of buildings with more than 100,000 m² to prepare a local plan of action for energy management (PLAGE).

4. A controversial measure: off-street parking restrictions

With respect to transport, COBRACE includes new measures to improve the environmental performance of certain types of vehicles (taxis, shared vehicles, regional tour buses, rental cars, etc.).

However, another cornerstone provision of COBRACE, namely the restriction on off-street parking, has generated far more opposition. As Brussels regularly appears on lists of Europe's most congested cities, COBRACE aims to reduce the number of off-street parking spaces at office buildings, in order to encourage alternative means of transport to work. The system will be extended progressively to existing facilities through a system of environmental permits. Except in specific circumstances, a quota on parking spaces will be determined based on the availability and proximity of public transport. The environmental permit holder can make excess parking spaces available to the general public, reassign them to new activities, or pay an environmental tax.

5. Exemplary role of the public sector

As the public authorities are expected to play an exemplary role, COBRACE imposes various measures on them with regard to real estate investments. It should be noted that Brussels government may set more stringent energy efficiency requirements for new public buildings and public buildings subject to major renovation works. Further, public authorities (including the STIB/MIVB) must comply with minimum energy performance criteria when purchasing new vehicles. Finally, regional and local authorities are also expected to adhere to exemplary standards when making certain purchases.

6. Low emissions areas

With regard to air quality, the most important change introduced by COBRACE is the possibility for the regional government, along with local municipalities, to define areas where certain mobility-related activities are encouraged, restricted or prohibited - permanently, temporarily or on a recurring basis. Access to such areas can, for instance, be limited to vehicles that meet given standards in terms of environmental performance and energy efficiency.

COBRACE is a product of increasing awareness: indeed, environmental protection is not merely a policy choice. Environmental challenges are both economic and social and require a consistent, global regulatory approach. While the relevance of the new measures will only become apparent in the long term, it is already possible to appreciate the objectives of COBRACE and their integrated implementation.

LEGAL ADVICE OF IN-HOUSE COUNSEL PROTECTED BY DUTY OF CONFIDENTIALITY

by Dirk Van Gerven (Belgium) & Freerk Vermeulen (the Netherlands)

The Belgian Act of 1 March 2000 provides that legal advice rendered by in-house counsel is considered confidential when the company lawyer is acting as a legal advisor, intellectually independent of his or her employer (Art. 5). It should be noted that only in-house counsel who are members of the Institute of Company Lawyers (Intituut voor bedrijfsjuristen/Institut des juristes d'entreprise) are protected by this rule.

The issue of whether the advice of in-house counsel can be protected before a court of law has been the subject of much debate. In Europe, the prevailing opinion is that in-house counsel cannot rely on the attorney-client privilege. The Court of Justice has confirmed this position in two decisions (AM&S, 18 May 1982, and Akzo, 14 Sept. 2010). The latter case involved a Dutch attorney who was employed by Akzo. The Court noted that in order to benefit from the attorney-client privilege, the lawyer must be independent and that only practicing members of the bar (i.e. non-in-house lawyers), who by definition are self-employed, are deemed to possess the requisite independence. In the US, on the other hand, it is generally accepted that advice rendered by in-house counsel, for the primary purpose of legal assistance, is protected by the attorney-client privilege.

In a decision of 5 March 2013, however, the Brussels Court of Appeal ruled that the Belgian antitrust authorities cannot seize legal advice prepared by in-house counsel for the company, in view of the duty of confidentiality provided for by Article 5 of the Act of 1 March 2000. According to the court, this duty of confidentiality extends only to legal advice and does not cover all activity of in-house counsel. Indeed, the purpose of this provision is to ensure that companies, in particular, and employers, in general, have access to independent and exhaustive legal advice, thereby ensuring that they are able to correctly apply the law. This duty of confidentiality also extends to correspondence and documents exchanged in preparation for the provision of legal advice as well as draft advice. The appellate court further held that Akzo applies only to European antitrust proceedings, whereas national antitrust proceedings are governed by national rules.

This decision of the Belgian appellate court constitutes a major step towards acknowledging that legal advice rendered by in-house counsel should be afforded the same level of protection as under the attorney-client privilege.

Likewise, on 15 March 2013, the Dutch Supreme Court rendered a decision in a case involving a lawyer and member of the bar who worked in-house for a Dutch company. The Hoge Raad held that the lawyer, although not self-employed, was entitled to rely on the attorney-client privilege with respect to information exchanged during meetings which he attended in his capacity as a legal advisor.

These decisions derogate from the prevailing opinion that the legal advice of in-house counsel does not benefit from the same level of protection as that afforded by the attorney-client privilege. In both cases, however, the client (the employer) should be able to freely communicate all necessary information to ensure the best legal advice, which may not subsequently be used against it.

SHAREHOLDER LIABILITY

by Elke Janssens & Olga Matiychuk

The ongoing economic crisis has prompted an intensified search for persons who can be held liable for companies' debts. In this context, shareholder liability is a cause for particular concern. This article provides a brief overview of the various grounds for shareholder liability under Belgian corporate law.

General rule

As a rule, shareholders cannot be held liable for the debts of limited-liability companies, such as an SA/NV or an SPRL/BVBA. Indeed, each company is a separate legal entity, and the shareholders' liability is in principle limited to their contribution to the company's share capital.

Founders' liability

Pursuant to the Company Code, founders are jointly liable for ensuring that the minimum statutorily required share capital is met and paid upon incorporation of the company. Moreover, for an SPRL/BVBA, if the sole founder is a legal entity, it shall be held jointly liable for the company's debts until a second shareholder enters the company.

The founders may also be held jointly liable for all or some of the company's debts if (i) the company is declared bankrupt within three years following the date of its incorporation and, (ii) upon incorporation, the subscribed capital was manifestly insufficient to exercise the company's activities for a period of two years.

Sole shareholder's liability

The Company Code treats with suspicion limited liability companies having only one shareholder, and provides specific grounds for liability. In an SA/NV, the sole shareholder is jointly liable for all debts of the company if, within one year after all shares were consolidated in the hands of this shareholder, (i) no new shareholder has joined the company or (ii) the company has not been converted into an SPRL/BVBA or (iii) the company has not been wound up. A similar provision exists for the SPRL/BVBA.

Liability in tort

It is generally accepted that shareholders, like other persons, can be held liable for damage under general rules of tort law (Article 1382 of the Civil Code). For example, in theory, shareholders can be held individually liable for manifest abuse of their voting rights or an unlawful distribution of the company's funds or assets.

However, in practice, there are very few examples in the case law of shareholders being held liable in tort. Indeed, it is very difficult to prove a causal link between the actions of a specific shareholder and the damage suffered by a creditor of the company. Moreover, the court has only marginal discretion to assess such liability.

Shareholders acting as directors

It is quite common for shareholders to serve as directors of a company. In this way, they are able to play an active role in the management of the company, but can also be held liable pursuant to the rules on director's liability.

Shareholders acting as de facto directors

Some shareholders are actively involved in the management and decision-making process of a company, even if they are not officially directors and therefore are not subject to the rules on director's liability. The case law provides for a number of factors indicating a de facto directorship: (i) the shareholder is involved in the company's management without any statutory or contractual basis for such involvement; (ii) the shareholder regularly performs positive acts of governance; and (iii) the shareholder does not follow particular instructions.

Certain provisions of the Company Code expressly provide that a de facto director can be held liable in the same way as an actual director (e.g. personal liability for manifest gross negligence which contributed to the bankruptcy of the company). Moreover, it is generally accepted that de facto directors can be held liable to third parties pursuant to general rules of tort law.

Piercing the corporate veil

In extreme cases, a company is nothing but a mere veil or sham for its shareholders, who fail to respect the company's legal personality and use it for their personal interests.

In the '70s, the Belgian courts developed the doctrine of piercing the corporate veil, which allows the separate legal personality of the company to be ignored so that its shareholders can be held personally liable for the company's debts. In practice, however, this doctrine has not been applied since a decision of the Belgian Supreme Court in the late'70s. Certain scholars are nevertheless of the opinion that, under certain circumstances, a shareholder that abuses the company's separate legal personality may be held liable for its debts.

Conclusion

This brief overview shows that a company's limited liability does not constitute absolute protection for the personal assets of its shareholders.

However, the case law on shareholder liability is still very limited. Although there are many examples of shareholder liability based on statutory provisions, there is almost no case law on shareholder liability in tort or "piercing the corporate veil". Nevertheless, in times of economic crisis, the abovementioned grounds are sometimes used to put pressure on (majority) shareholders and companies. As such discussions are almost always settled out of court, little public information is available. However, it is still important to keep these issues in mind at all times.

HAS THE COURT OF JUSTICE DISALLOWED LANGUAGE REQUIREMENTS IN CROSS-BORDER EMPLOYMENT RELATIONSHIPS?

by Philippe François & Tamar Van Colenberghe

On 16 April 2013, the Court of Justice of the European Union held (C-202/11) that the rule that an employment contract between a company established in Flanders and a Dutch employee working in Flanders must be drafted in Dutch rather than English in order to be valid violates the free movement of workers.

Does this decision put an end to Belgium's strict language requirements in employment relationships? The answer is no.

Belgian statutory language requirements for HR documents

In Belgium, the language used in relations between the employer and its employees must be Dutch, French or German, depending on the employer's place of business. If the employer's place of business is in the Flemish Region, the language used is Dutch. If the place of business is in the Walloon Region, the applicable language is French. Likewise, if the employer's place of business is in the German-speaking Region, German is used. Employers based in the Brussels-Capital Region can draft all employment-related documents in either Dutch or French, depending on whether the employee is Dutch- or French-speaking.

In the Flemish and Walloon Regions, HR documents that do not satisfy the legislation in effect on the use of languages will be deemed null and void, as will any legal acts arising therefrom.

In the Brussels-Capital Region, HR documents drafted in a language other than French or Dutch are not void, but must be replaced by a document drafted in one of these two languages.

The Court of Justice's decision

Facts

A Dutch employee was employed by a Belgian company, based in Flanders and part of a Singaporean multinational. The parties signed an employment contract, drawn up in English.

Upon dismissal, the Dutch employee argued that his employment contract was null and void, as it was not drafted in Dutch. He therefore claimed more severance than provided for by the employment contract.

Decision

In answer to the Belgian court's request for a preliminary ruling on the question of whether the Flemish language decree is in line with the free movement of workers in a cross-border employment relationship, the Court of Justice ruled as follows:

The Flemish language decree goes beyond what is strictly necessary to respect the objectives of the protection of workers, the effectiveness of administrative and legal controls, and the defence and promotion of the Dutch language.
Parties entering into an employment contract with cross-border aspects have not necessarily mastered the official language of the country concerned. In this context, the free and informed consent of the parties is only possible if they can draft their agreement in a language other than the official language of the country in question.
The Flemish decree, which requires employers based in Flanders to enter into cross-border employment contracts in Dutch, violates the free movement of workers.

Consequences of the Court of Justice's decision

It goes without saying that the existing Belgian statutory language requirements for HR documents are very strict and usually generate high translation costs.

Based on the Court of Justice's decision, the Flemish and Walloon linguistic decrees will have to be modified in the future. However, it should be noted that the Court of Justice's decision applies only to language requirements in cross-border employment relationships.

At present, since the Belgian legislation has not yet been changed, it is still highly recommended to draft HR documents in Dutch (Flemish Region) or French (Walloon Region), even for cross-border employment relationships. Of course, an unofficial English translation can always be provided.

Finally, for the sake of clarity, please note that companies in the Brussels-Capital Region are not affected, as HR documents, drawn up in English rather than Dutch or French, can always be replaced, without being considered null and void.

REGULARISATION: SIGNIFICANT CHANGES ON THE HORIZON - CURRENT SYSTEM EXTENDED UNTIL 14 JULY 2013

by Pascal Faes & Kurt Demeyere

The Act of 27 December 2005 introduced a system of permanent tax regularisation, allowing taxpayers to regularise previously undeclared amounts. The system applies to income, registration and inheritance taxes as well as VAT.

By filing a special regularisation return with a specific department of the Ruling Commission and paying the taxes due plus (in certain cases) a penalty, the taxpayer will in most cases not incur criminal liability and cannot be prosecuted. These rules will most likely continue in effect until 14 July 2013. Thereafter, a transitional system will be introduced (until 31 December 2013). While the transitional system is likely to enter into force on 15 July 2013, the exact date remains to be confirmed in the final legislation. The new, more stringent rules will enter into effect on 1 January 2014.

	Until 14 July 2013	From 15 July until 31 December 2013	As from 1 January 2014
Where to file request	Tax Regularisation Contact Point (of the Ruling Commission)	Tax Regularisation Contact Point (of the Ruling Commission)	Public Prosecutor's office
Penalty in addition to taxes (for professional income)	N/A	15% or 20% (for serious and organised tax fraud)	Tax or criminal penalties
Penalty in addition to taxes (for other income, eg interest or dividends)	10%	15% or 20% (for serious and organised tax fraud)	Tax or criminal penalties
Penalty after expiry of the statute of limitations	N/A or 10%	35% of embezzled amount	Tax or criminal penalties
Applicable to 'normal' fraud?	N/A	Only qualifying cases	N/A
Immunity from further prosecution	Yes	Yes	No, except with the public prosecutor's agreement

The current system extended until 14 July 2013

For undeclared professional income, no penalties apply. However, other types of income (such as dividends or interest income) are subject to an additional 10% penalty. The current system does not distinguish between income for which the statute of limitations has already expired and that for which it is still running. However, it does distinguish between "normal" and "serious and organised" tax fraud. Tax regularisation is only possible in the former case.

The tax regularisation campaign has been a huge success. However, the on-going economic crisis has depleted public coffers and the Belgian government is actively seeking additional revenue, including through new regularisation rules. On 6 June, the federal government announced plans to extend the current system until 14 July 2013, even though it was supposed to be abolished on 30 June 2013. The reason for the extension is that foreign banks where undeclared funds are held must issue a certificate in order for taxpayers to be able to complete the regularisation procedure, and they are unable to comply with this formality by 30 June 2013.

New (transitional) system until 31 December 2013: more expensive but extended to serious and organised tax fraud

As this is a highly sensitive, politicised matter, no official text is available yet. In addition, the Council of State, Belgium's highest administrative court which advises on draft legislation, has heavily criticised the reformed system as violating several constitutional principles. However, the government recently announced that it will not take into account the Council of State's remarks.

Under the transitional rules, undeclared income and/or capital can most likely be regularised by paying the normal tax due and one of the two following penalties (i or ii) or a percentage of the underlying capital (iii): (i) a 15% penalty for normal tax fraud; (ii) a 20% penalty for serious and organised tax fraud; or (iii) if the statute of limitations for declaring the income has already expired, a penalty equivalent to 35% of the embezzled amount.

As a result, unlike under previous tax amnesty measures, it will be possible to regularise capital originating from certain money laundering offenses. The regularisation requirements will depend on whether the statute of limitations has already expired. However, it should be noted that it will not be possible to regularise amounts resulting from certain illegal activities, such as human and arms trafficking and the like.

An important feature of the transitional system is immunity from criminal prosecution for most cases of tax fraud. This intermediate regime is expected to raise over EUR 500 million.

As from 1 January 2014: tax regularisation no longer possible

Under the final system, the Ruling Commission will no longer be authorised to engage in tax regularisation. The only possibility available to taxpayers will be to enter into an agreement with the tax collector and the public prosecutor's office.

Tax increases and penalties or criminal fines will be computed on top of the tax due. Moreover, no agreement will be possible in the case of both normal and organised and serious tax fraud. Further, by definition, taxpayers will not be immune from criminal prosecution, unless the public prosecutor's office agrees to grant immunity.

REFORM OF EUROPEAN TRADE MARK LAW

by Philippe Péters & Florence Verhoestraete

Almost 25 years after the adoption of the Trade Marks Directive, harmonizing national trade mark law throughout the EU (now codified as Directive 2008/95/EC, hereinafter the "Directive"), and almost 20 years since the adoption of the Community Trade Mark Regulation (now codified as Regulation 207/2009/EC, hereinafter the "CTMR"), the European Commission has issued proposals to improve both instruments.

The proposals are based on a thorough study of the European trade mark system carried out by the Max Planck Institute for Intellectual Property and Competition Law between November 2009 and February 2011, at the Commission's request. Many of the proposed changes are likely to be adopted, in view of the thoroughness of the study and the fact that it was conducted by a reputable independent party. As some of these changes could have significant effects in practice, a short overview of the most relevant suggested amendments is provided below.

1. General remarks

Max Planck Institute concluded that the European trade mark system, which is characterised by the coexistence of national and Community trade marks, is generally sound and meets business needs but could be improved.

Accordingly, the Commission's proposals are not intended to completely overhaul the system but rather to upgrade, streamline and modernise the current legislation so as to improve trade mark registration throughout the EU. The goals are to enhance accessibility, efficiency and legal certainty, reduce complexity, and lower costs.

2. Proposed changes to the Community trade marks system and OHIM

2.1. Updated terminology

In light of the Lisbon Treaty, it is suggested that the Community trade mark be renamed the European trade mark and OHIM the European Union Trade Marks and Designs Agency.

2.2. Changes to substantive law

2.2.1. Definition of a trade mark

The definition of a trade mark will no longer require that the sign be "capable of being represented graphically". Rather, the new definition states that a sign must merely be capable of "being represented in a manner which enables the competent authorities and the public to determine the precise subject of the protection afforded to its proprietor". This will facilitate the registration of non-traditional marks. Furthermore, the definition specifically covers "colours as such" and "sounds".

2.2.2. Absolute grounds for refusal

It is suggested to add the following absolute grounds for refusal to the existing list:

prior designations of origin, geographical indications, protected traditional terms for wine and traditional specialities and protected plant varieties; and
terms which, if translated or transcribed into any script or official language of a Member State, would be descriptive.

2.2.3. Scope of protection

The provision on trade marks enjoying a reputation will be extended to cover situations in which the goods or services concerned are identical or similar, so as to take into account the Court of Justice's interpretation of this provision.
The following are added to the list of acts which a trade mark holder may prohibit:
- making use of a sign as a trade or company name, when such use is made for the purpose of distinguishing goods or services as to their commercial origin;
- making use of a sign in comparative advertising that does not meet the requirements set forth in Directive 2006/114/EC.
In order to combat counterfeiting, Community trade mark holders will be able to take action against the distribution and sale of labels, packaging and similar items which may subsequently be combined with infringing goods.
In the context of suspensive customs procedures, the proposal suggests shifting the onerous burden of proof imposed by the CJEU on right holders. Rather than having to establish that goods in transit will eventually enter the EU, a trade mark holder will be entitled to prevent third parties from bringing goods into the EU customs territory in the context of a commercial activity, even if the goods remain in transit. Further, a trade mark holder will be able to object to the introduction into the EU of small consignments of infringing goods, even if only the sender is acting in the course of trade.
The limitations on trade mark rights are set out more clearly, e.g. the right to use one's name is restricted to personal names. The proposed regulation clarifies when third-party use should not be deemed in line with fair trade practices.

2.2.4. Description of goods and services and class headings

In the wake of the CJEU's ruling in IP Translator (C-307/10) the proposal provides that the description of goods and services must be sufficiently clear and precise; general terms will be deemed to include goods and services clearly covered by their literal meaning. For Community trade marks applied for before 22 June 2012, there will be an option to amend the description.

2.3. Filing practice

All Community trade mark applications should be filed with OHIM. Filing before national offices, such as the Benelux Office for Intellectual Property, will no longer be possible.
Searches by OHIM and optional searches at national level will be abolished.
Community trade mark fees will be due immediately upon filing, per class, in order to discourage overly broad filings that clutter up the registry.

3. Proposed changes at national level

The abovementioned suggested changes to substantive law in the Community trade mark system are also applicable to national trade marks. In addition, a series of amendments is proposed in order to achieve greater harmonisation and facilitate cooperation between national offices and OHIM.

The proposed directive makes the protection of prior designations of origin, geographical indications, protected traditional terms for wine and traditional specialities, and protected plant varieties compulsory.
The optional protection currently afforded trade marks with a reputation will become mandatory. Trade marks with a reputation already benefit from heightened protection in the Benelux.
The relative grounds for refusal (as opposed to absolute grounds for refusal) taken into account by 12 Member States to refuse registration will be abolished. This issue does not affect the Benelux, as the Benelux Office for Intellectual Property does not take into consideration relative grounds for refusal.
It will become mandatory to provide for opposition and cancellation proceedings before the national trade mark office. In the Benelux, opposition proceedings are conducted before the Benelux Office for Intellectual Property while cancellation proceedings must be brought before the national courts.
The classification rules will be the same as for Community trade marks, and the fees will also be per class. In the Benelux, the base fees currently cover three classes.

4. Next steps

The proposals will be submitted to the European Parliament and the Council for adoption pursuant to the co-decision procedure. The timetable is uncertain, but they are expected to be adopted in the first half of next year. The new regulation will take effect once it enters into force. The Member States will have two years to transpose the new directive into national law.

2013 REPORT: THE BELGIAN PRIVATE EQUITY AND VENTURE CAPITAL MARKET - AN OUTLOOK

NautaDutilh has conducted a survey of the Belgian private equity and venture capital sector in order to chart expectations. We were able to gather input from influential market players, including private equity and venture capital professionals, bankers, corporate finance advisors, and university professors.

The complete results have been incorporated into a report, which highlights a number of specificities of the Belgian market, including the life sciences and energy sectors, distressed M&A, and family-owned businesses.

The report will be presented on 20 June. If you would like to attend, please send an e-mail to seminars@nautadutilh.com.

If you would like to receive an electronic copy of the report, please send an e-mail to evy.vandenblock@nautadutilh.com

Footnotes

1. Belgian State Gazette, 21 May 2013, 28357.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

European Union: Brussels To The Point - June 2013