Category: Publications

On 9 November 2023, the European Court of Justice ruled in case no. C-319/22 on the interpretation of article 61 of Regulation 2018/858. This article imposes an obligation on vehicle manufacturers to provide information from the on-board diagnostic system as well as vehicle repair and maintenance information to independent operators.

One of the preliminary questions referred to the Court is whether article 61(1) of Regulation 2018/858 should be interpreted as imposing a “legal obligation” on vehicle manufacturers as “controllers” to make available to independent operators the VINs of the vehicles they manufacture.

The VIN is the alphanumeric code assigned to a vehicle by the manufacturer to enable the adequate identification of each vehicle.

To answer this question, the Court notes that it must first determine whether a VIN is personal data within the meaning of the GDPR. The GDPR defines personal data as any information relating to an identified or identifiable natural person.

In this regard, the Court refers to previous case-law and states that in order to determine whether a natural person is directly or indirectly identifiable, consideration must be given to all the means likely reasonably to be used either by the controller or by any other person, to identify that person, without, however, requiring that all the information enabling that person to be identified should be in the hands of a single entity.

In line with the foregoing and following the Advocate General, the Court holds that where independent operators may reasonably have at their disposal the means by which a VIN can be linked to an identified or identifiable natural person, the VIN constitutes, for those operators, personal data within the meaning of the GDPR. Consequently, the VIN cannot constitute personal data when there are no such means to link the VIN to a natural person or where the vehicle to which that VIN is assigned does not belong to a natural person. This is to be assessed case-by-case. The Court further states that the VIN is also indirectly personal data for vehicle manufacturers who make it available, even though the VIN is not in itself personal data for them. It is not entirely clear what the Court means by this statement which seems a bit contradictory, but we assume that the Court wishes to stress the relative nature of the notion “personal data”: whether something is personal data or not, depends on who you ask and whether or not that person can link a VIN to a natural person.

The Court ultimately answers the preliminary question in the affirmative way by stating that article 61(1) of Regulation 2018/858 effectively imposes a “legal obligation” on vehicle manufacturers as “controllers” to make the VINs of the vehicles they manufacture available to independent operators.

Based on this judgment, we can conclude that the VIN as such cannot be considered personal data. The VIN will only be considered as personal data to the extent that it can be linked to an identified or identifiable natural person, taking into account all means reasonably available to the controller/recipient to make this link.

On June 2, 2023, the Belgian Supreme Court has ruled in a matter concerning the breach of “pre-contractual information obligations” in a franchise agreement.

Pursuant to Article 3 of the Law of December 19, 2005 concerning “pre-contractual information in commercial cooperation agreements”, (as revised by article 4, 2° of the law of April 2, 2014), a pre-contractual information document has to be provided by the “stronger party” to the “weaker party”, before entering into a (new or amended) commercial cooperation agreement. Additionally, during a one-month reflection period, no commitment can be made. In case of non-compliance, the “weaker party” can invoke the nullity of the agreement, until two years of the conclusion thereof.

In the concerned matter, a “Carrefour” franchisee (whose operations ceased in 2009 due to the unprofitable operation of the store not meeting the promised turnover), was taken to court by the franchisor for outstanding debts and lease payments. The franchisee claimed the nullity of the franchise agreement based on the fact that the reflection period was not met.

On May 12, 2016, the court of first instance ruled that the reflection period started from the day after the provision of the pre-contractual information document and ended one month later. The court clarified that ‘one month’ should be understood in its everyday sense, leading to the conclusion that the pre-contractual information obligation had not been fulfilled (one day short).

The Antwerp Court of Appeal confirmed this judgement and stated that the franchisee had not waived its right to claim nullity and did not abuse its right by seeking nullification. The Court further ruled that all legal actions and/or agreements between the parties resulting from the franchise agreement, or closely related to it (such as the lease agreement), are null and void too. Additionally, the Court of Appeal decided that the franchisor was not only required to “reimburse” expenses paid to the franchisor, but also to “compensate” the franchisee for the damages suffered (including expenses paid to third parties). The franchisee had to be fully restored to his original position, as if the agreements were never closed.

The franchisor appealed to the Supreme Court, arguing that the Law only provided for the nullity of the agreement and that no additional “compensation” could be awarded. However, the Supreme Court confirmed the Court of Appeal’s decision.

The franchisor argued that “restitution” could not apply to already rendered services that could not be reversed. However, the Supreme Court rejected this argument. Where previously rendered services cannot be restituted “in kind” (because impossible or unreasonable), the value thereof is to be assessed on the day of restitution.

This case-law shows that failure to comply with the “pre-contractual information obligations” (even if the reflection period was only one day short) can have very serious consequences.

As of 17 December 2023, this legislation applies to Small and Medium-sized Enterprises (50 to 249 employees). It was already in effect on 15 February 2023 for large companies (more than 249 employees).

What is new for SMEs?

1. A company (=legal entity) is must provide an internal reporting channel for employees, self-employed service providers, shareholders, board members, etc., who wish to report violations in a work-related context. This involves various EU policy areas, including market competition, but also social and tax fraud.

2. “Whistleblowers” are protected from retaliation or unfavourable treatment when (i) they had reasonable grounds to believe that the information reported about violations (within certain domains) was correct at the time of reporting and (ii) they reported this information through a valid channel.

What are the risks if you fail to comply with this legislation?

Should the company fail to comply with the Whistleblowers Act, this may be punishable by severe sanctions:

– Failing to establish an internal reporting channel and a reporting register: prison sentence of 6 months to 3 years and/or criminal fine of 4.800 EUR to 48.000 EUR; or administrative fine of 2.400 EUR to 24.000 EUR;

– In the event of retaliation or unfavourable treatment by the company towards the whistleblower and no evidence is provided to the contrary by the employer (reversal of the burden of proof):

o protected employee: compensation of 18 to 26 weeks salary;

o others: the damage actually suffered (if proven);

– If the employer (or any person) obstructs or attempts to obstruct reporting, retaliates, initiates unnecessary or inconvenient proceedings, does not ensure the confidentiality of the identity of the whistleblower: a prison sentence of six months to three years and/or a criminal fine of 4.800 EUR to 48.000 EUR

What is Astrea’s added value when it comes to implementing this legislation?

Astrea offers a twofold one stop shop service:

– Legal advice and assistance with the implementation of a reporting platform (anonymous or not):

We have in-house legal knowledge to advise on this legislation as well as assist your company with its legal implementation (including drafting the necessary legal documents).

– Offering an anonymous reporting platform in cooperation with Trustan BV:

Astrea has entered into a cooperation with Trustan BV which provides an effective reporting platform where employees can report anonymously, thus meeting the obligation to provide an “internal reporting channel,” albeit anonymously.

Interested? Contact our employment law team.

The system of relance hours was introduced during the corona crisis to cope with the exceptional increase of work in the crucial sectors. It was later extended to all other sectors.

This system of “relance hours” was extended for the period from 1 July 2023 to 30 June 2025 (the Act of 20 July 2023 following the Interprofessional Agreement 2023-2024).

Relance hours have some similarities to voluntary overtime under the Labour Act:

• thus, employer and employee must enter into a written agreement of maximum six months;

• no compensatory rest should be granted for the overtime worked.

The relance hours can be granted on top of the voluntary overtime (in principle 100 per calendar year) with a maximum of:

• in the period from 1 July to 31 December 2023: 120 additional relance hours;

• in 2024: 120 additional relance hours;

• in the period from 1 January 2025 to 30 June 2025: 120 additional relance hours.

No priority mechanism for voluntary overtime has been stipulated. Thus, the employer can first agree on a system of relance hours, and subsequently also agree on voluntary overtime with the same employee, or vice versa.

There are also differences between the voluntary overtime system and relance hours:

• Relance hours do not require overtime pay (50%, or 100% on Sundays or public holidays);

• Unlike voluntary overtime, relance hours are free of social security contributions and withholding tax. Gross is net.

Relance hours may not exceed the limit of 11 hours/day and 50 hours/week.

If you would like more information on this, please do not hesitate to contact us.

It is clear that the rise of artificial intelligence “AI” poses different challenges in different areas. One of these areas is copyright, and in particular the requirement of authorship, which will be discussed in more detail in this contribution.

Works are protected by copyright when the work (i) is expressed in a concrete form and (iii) is original. The originality principle requires that the work is “the expression of the author’s own intellectual creation” and bears “the stamp of his personality”. The work is original when a work results from the free and creative choices made by the author.

Copyright protection for works is vested in the author’s intellectual creation. It follows from the jurisprudence of the European Court of Justice “CJEU” (see Infopaq International A/S v Danske Dagblades Forening, C-5/08 and Football Dataco Ltd and Others v Yahoo! UK Ltd and Others, C-604/10) that the work must bear the stamp of the author’s personal touch. Consequently, the work and related copyrights in it can only originate from a natural person.

Copyrights (subject to moral rights that are inalienable) can be transferred by the author, natural person, to a legal person but the legal person can never be the initial author of the work.

AI-generated works raise legal questions, namely whether they can generate originality as they do not comply to the requirement of originality being provided by a natural person.

Some decisions in the United States, which shed a light on the debate, will be briefly discussed here below.

In Thaler v. Perlmutter, it was decided by the United States District Court, District of Columbia that the work “A Recent Entrance to Paradise” generated by the computer system “Creativity Machine” was not eligible for copyright protection. The US Copyright Office refused Stephen Thaler’s request to register the work as a copyrighted work given “Creativity Machine” was designated as the author and the work therefore lacked human authorship. The court upheld this refusal, stating that “United States copyright law protects only works of human creation.” With the decision, the court on the one hand acknowledged that “[…], copyright law has proven malleable enough to cover works created with or involving technologies developed long after traditional media of writings memorialised on paper”, and on the other hand stated that “human creativity is the sine qua non at the core of copyrightability, even as that human creativity is channeled through new tools or into new media”. In this regard, the court makes the comparison with works made with a photo camera, which can only be eligible for copyright protection if there are “original intellectual conceptions of the author” (such as, for example, “posing the [subject] in front of the camera, selecting and arranging the costume, draperies, and other various accessories in said photograph, […]”).

It follows from the above that to the extent there is “human contribution” AI-generated works may be eligible for copyright protection. Exactly what is to be understood by this “human contribution” and to what extent it is required is not entirely clear.

In this regard, the “Copyright registration guide: works containing material generated by artificial intelligence” of the US Copyright Office offer some guidance stating that “If a work’s traditional elements of authorship were produced by a machine, the work lacks human authorship and the Office will not register it. For example, when an AI technology receives solely a prompt from a human and produces complex written, visual, or musical works in response, the “traditional elements of authorship” are determined and executed by the technology-not the human user.” In contrast, the Copyright Registration Guide states that copyright protection may exist in the following cases: “For example, a human may select or arrange AI-generated material in a sufficiently creative way that the resulting work as a whole constitutes an original work of authorship. Or an artist may modify material originally generated by AI technology to such a degree that the modifications meet the standard for copyright protection.” The Copyright Registration Guide was published by the US Copyright Office after its decision refusing copyright protection to photographs generated by Midjourney (AI Art Generator) included in Kashtanova’s book “Zayra of the Dawn” since the mere entering of text prompts in Midjourney was not considered sufficient to grant copyright protection to the photographs.

It remains to be seen what position on AI and copyright, and in particular authorship, will be taken by the various courts in Europe and ultimately the Court of Justice of the European Union. In any case, it is clear that the aspect of human contribution (and its degree) will be an important factor in whether or not copyright protection to a work is granted. A case-by-case assessment will therefore always be necessary.

The originality requirement and to what extent it can be fulfilled when it comes to AI-generated works will undoubtedly need to be settled and will definitely generate a debate that will go far beyond the legal issue only.

For more questions on AI and copyright, you can always contact our IP team.

The Belgian financial watchdog FSMA announced in its communication last Friday that the global crypto-platform Binance should cease all its operations in Belgium, as the platform has continued to operate illegally in the country since it started offering its services. The FSMA is certainly not the first authority to act with a ban, as several other European and US regulators have already taken the crypto-giant to task. The US stock market regulator SEC, for instance, sued the platform earlier this month for non-compliance with US legislation.

According to the relevant regulatory framework, providers of platforms that exchange crypto-currencies into classic currencies or wallets are required by law to establish themselves within the European Economic Area, where Binance offers its services mainly from its offices outside the European region. The FSMA states that it has offered the crypto-giant the option of adapting to the current rules on several occasions, but indicates in its communication last Friday that the Cayman Island-based company did not sufficiently comply. Accordingly, the regulator has imposed a complete ban on all its activities on the crypto-trader and is also demanding the full refund of all virtual currency and/or crypto keys to its users in Belgium.

In addition to the lack of branches within the EEA, the FSMA states that Binance could potentially be criminally prosecuted under the provisions of the Belgian anti-money laundering law, as non-compliance with these obligations also constitutes a crime. Accordingly, the FSMA subsequently transferred the file to the public prosecutor’s office.

Binance expressed its disappointment on Saturday and says it intends to cooperate with the relevant regulators in Belgium and worldwide to still be able to come into compliance with its obligations. In any case, the final blow in Belgium seems to have already been issued.

If you have any questions or want more information regarding the regulatory framework of crypto-assets, please do not hesitate to contact Dieter Veestraeten (dve@astrealaw.be).

The new EU Regulation 2023/988 on general product safety is entering into force on 12 June 2023 and shall apply from 13 December 2024.
Directives 2001/95/EG and 87/357/EEG will be repealed and replaced by this Regulation.

This Regulation brings the existing rules on “general product safety” in line with the recent developments in digitalization and the significant increase in online shopping and imposes stricter obligations for both online and offline sales of products. Among other things, the Regulation namely introduces clear obligations for providers of online marketplaces.

Economic operators will thus have to comply with stricter obligations. Furthermore, the competence of market surveillance authorities as well as the Commission will be extended.

More transparency and information will also have to be provided to consumers regarding the risks that exist or occur in relation to a product (e.g., in case of a “recall” or safety warnings) and this in accordance with the vulnerability of the consumers.

For questions about this new Regulation, Astrea is happy to assist you.

In a landmark decision of April 7th, 2023, the Belgian Supreme Court (C.21.0325) has ruled that such disputes can be submitted to arbitration, disregarding the fact whether the arbitrator will apply Belgian law or not. By this decision the Court distanced itself from established case law.

The Court came to that decision after applying the reasoning of the UNAMAR-decision of the CJEU (17 October 2013) to the concerned provisions of Belgian law (Art.X 35-40 Belgian Code of Economic Law), which are protecting the Belgian distributor. The Court ruled in a concise statement that the relevant provisions are mainly protecting “private” interests and are not essential for safeguarding Belgian fundamental public interests (that can be political, social or economic). The Court has concluded that the relevant provisions can therefore not be considered as “specific mandatory law” or “police law”, overriding the parties’ choice for foreign law (cfr. Art. 9.1 Rome I Regulation). Therefore, the question whether a dispute can be subject to arbitration, cannot depend on these provisions (nor from the condition that the foreign law gives the same level of protection). In a nutshell, disputes on the termination of an exclusive distributor agreement with a Belgian distributor can always be submitted to arbitration, without any further conditions.

This decision will be welcomed by foreign suppliers, who will find themselves in a better legal position, as they can avoid the concerned Belgian provisions (protecting the Belgian distributor) by providing for an arbitration clause and a choice of foreign law in their distribution contract.

Recently, the Belgian Data Protection Authority (the DPA) has ruled again on a communication that an employer had put on its intranet to inform its staff of the departure of an employee. The employer had communicated that the employment contract had been terminated by the employer with immediate effect.

The employee concerned took offence. She felt that this communication gave the appearance that she had been dismissed for gross misconduct.

The DPA agreed with this. The DPA confirmed that an employer has the right to communicate when an employee has left the company. The GDPR provides a legitimate basis for this.

However, according to the DPA, stating that the employer had dismissed her, as well as the immediate departure went beyond what was necessary to achieve the purpose. Indeed, personal data processing must be minimal.

The employer received a warning from the DPA and had to correct its communication.

In brief: if you want to inform your staff of the departure of an employee, it is best to limit your communication to the bare essentials: the name of the employee and the date of departure.

The same applies when the employer informs third parties of the departure of a former employee, for example in an out-of-office notice.

On April 20th 2023, the European Parliament took a plenary vote on the approval of the Markets in Crypto-Assets (MiCA) regulation, making it the first comprehensive legal framework for crypto-assets worldwide. As part of the Digital Finance package, the now approved regulation aims to “ensure that the Union’s financial services legislation is fit for the digital age, and contributes to a future-ready economy that works for the people, including by enabling the use of innovative technologies”.

MiCA translates its aim for a future-ready economy into four essential objectives, namely: (a) providing legal certainty by establishing a legal framework for crypto-assets that are not yet protected by existing financial services legislation; (b) instituting a safe and proportionate framework to support innovation and fair competition to promote the development of crypto-assets; (c) ensuring consumer protection, protection of investors and market integrity in consideration of the risks associated with crypto-assets; and (d) maintaining financial stability and sufficient safeguards to address potential risks.

Despite its very ambitious goals, not all crypto-assets are made subject to MiCA. In particular non-fungible tokens (NFTs) and security tokens that qualify as a financial instrument under MiFID are not covered by the regulation. E-money tokens, asset-referenced tokens and utility tokens on the other hand do fall under the scope of the MiCA-regulation.

Applying to natural and legal persons that take part in the issuance of, offering to and trading of crypto-assets, as well as to providers of services in those markets, MiCA lays down a new set of rules based on the type and classification of the crypto asset. The requirements imposed depend on this division and the significance of the crypto-asset.

An interesting and undoubtedly very important innovation for the international crypto practice is the introduction of a European passport for crypto service providers wishing to offer their services within the EU. This passport will allow a provider to extend its operations across the EU without having to acquire additional licenses.

The adoption of the MiCA Regulation is almost complete. As the last hurdle, a formal vote by the Council is scheduled on May 16th 2023, after which MiCA will be published in the Official Journal of the EU. The entry into force is envisioned in June 2024 for ARTs, EMTs and CAs issuers and in December 2024 for crypto-asset service providers.

If you have any questions or want more information regarding the regulatory framework of crypto-assets, please do not hesitate to contact Dieter Veestraeten (dve@astrealaw.be).

On 17 March 2023, the Royal Decree of 5 January 2023 was published in the Belgian Official Gazette, approving the regulation of the Financial Services and Markets Authority (FSMA) on the introduction of a set of restrictive conditions on the commercialisation of virtual currencies to consumers. Some key takeaways are (i) the requirement of accurate and non-misleading information in advertisements, (ii) the mandatory inclusion of risk warnings and (iii) the prior notification of mass media campaigns to the FSMA.

A ‘virtual currency’ is defined as a digital representation of a value that is neither issued or guaranteed by a central bank or public authority, nor necessarily linked to a legally issued currency and does not have the legal status of a currency or money, but which is accepted by natural or legal persons as a means of exchange and can be transferred, stored and traded electronically. Only those virtual assets that function as a means of exchange or payment are within scope. Assets with only an investment function (such as ‘security tokens’, which for instance, confer rights to a form of participation in an undertaking) or with only a utility function (such as ‘utility tokens’, which confer rights to future products or services) are excluded.

As the Royal Decree and the FSMA only target the commercialisation of virtual currencies in Belgium, the regulatory scope is limited to advertisements disseminated to consumers in return for a fee within the Belgian territory.

With respect to the objective to provide adequate information to consumers who wish to participate in the virtual currency market, the FSMA advocated for a strict regulation on the accuracy and non-misleading nature of virtual currency-advertising. In that regard, the Royal Decree introduces, inter alia, a prohibition on ‘advertisements which emphasize the possible advantages of the virtual currency without also giving a correct, clear and balanced indication of the risks, limitations or conditions associated with the virtual currency in question’. It also includes an obligation to present the information in non-technical terms so that it can be understood by the average consumer.

As a second ‘pillar’, the FSMA tries to tackle the unknown risks related to virtual currencies for consumers, by establishing a framework of mandatory warnings. For example, each advertisement must now contain the statement “Virtual currencies, real risks. The only guarantee in crypto is the risk” and a set of pre-described warnings, presented in a legible, visible and understandable manner at the beginning of each advertisement.

Finally, the Royal Decree pays special attention to mass media campaigns, to be understood as each communication with the specific purpose to promote the purchase or subscription of one or more virtual coins to at least 25.000 consumers. If the same advertisement is disseminated via multiple channels, the number of consumers reached via the various channels are to be added up. The FSMA preserves its right of supervision, prescribing a mandatory notification by an advertiser at least 10 days before the distribution in Belgium, clarifying how and on what date the advertisement will be disseminated.

It is clear that the FSMA and the Belgian legislator have taken an important step towards a more transparent and safe virtual currency market. The new FSMA regulation will enter into force as from 17 May 2023.

If you have any questions or want more information on the regulatory framework of virtual currencies, please do not hesitate to contact Dieter Veestraeten (dve@astrealaw.be).

The word ‘fine’, however, is not correct. It is indeed an additional ‘responsibilisation’ contribution on top of the regular social security contributions companies with a long-term illness record above a certain threshold will have to pay.

After one year of incapacity, the employee’s status changes from ‘incapacitated’ to ‘disabled’.

As employees on long-term incapacity receive benefits from the state after the initial 30 days of guaranteed pay, employers have little or no incentive to reactivate these employees. The direct financial burden is no longer theirs.

This measure aims at encouraging employers to reactivate these long-term incapacitated employees.

Employers with an average of 50 or more employees will have to pay an additional contribution to the National Social Security Office (NSSO) if they have an “above-average inflow” of employees into disability (i.e. more than one year of incapacity). This above-average inflow is determined on the basis of two ratios, assessed over four reference quarters. At least three employees must have entered into disability within these reference quarters.

The contribution is 0.625% of the total gross wages declared to the National Social Security Office in the quarter preceding (Q-1) the quarter in which the above-average disability inflow occurred (Q).

The NSSO will proactively notify employers when their disability rate evolves unfavourably. The first 474 warning letters have already been sent.

These provisions apply to periods of incapacity starting from 1 January 2022 (i.e. invalidity from 1 January 2023).The first responsibilisation contributions will be collected in the second quarter of 2023.

Have you incorporated a Belgian company before 1 May 2019? If so, your company’s articles of association may not have been adapted to the new Belgian Code of Companies and Associations (CCA) yet. You have time until 31 December 2023 at the latest to adapt your articles of association to the CCA.

Below we offer you a brief overview of the various procedures and formalities.

I. Adapting your articles of association to the CCA

The CCA came into force on 1 May 2019, so new companies incorporated since 1 May 2019 had to comply with the new company code immediately.

Companies incorporated before 1 May 2019 have time until 31 December 2023 to adapt their articles of association to the CCA, although the mandatory provisions of the CCA are already applicable to these companies since 1 January 2020.

If your company has the form of an NV/SA, BV (former BVBA)/SàRL (former SPRL), VOF/SNC, CommV/SCS or CV (former CVBA)/SC (former SCRL) and does not need to be converted to another form recognised by the CCA, a simple amendment of the articles of association will suffice.

Such amendment of the articles of association will in most cases need to be approved by an authentic deed before a notary. However, in case your company has the form of a Partnership, VOF/SNC or CommV/SCS incorporated by private agreement, the amendment of the articles of association by private agreement will suffice.

II. Conversion of your company into a company form recognised by the CCA

If your company takes the form of a joint-stock limited partnership (Comm. VA/SCA) or a cooperative society with limited or unlimited liability (which does not meet the conditions of the newly introduced cooperative company), it must be converted to a legal form prescribed by the CCA. More specifically, a:

– joint-stock limited partnership (Comm. VA/SCA) will be converted into a public limited company (NV/SA) with a sole director;

– cooperative society with unlimited liability (CVBA/SCRL) will be converted into a general partnership (VOF/SNC);

– cooperative society that does not meet the definition of a cooperative society in Article 6:1 of the CCA will be converted into a private limited company (BV/SàRL).

This conversion requires an amendment to the articles of association and, in the cases stipulated by law, also the completion of the procedure described in Book 14 CCA.

III. Sanctioning

If your company has not amended its articles of association or has not been converted to a company form prescribed by the CCA by 1 January 2024, it will be automatically converted to the most suitable legal form. Note that such automatic conversion is not the most opportune choice for your company. Moreover, you may not be able to benefit from certain opportunities offered by the new CCA because your articles of association are still drafted in accordance with the old company rules (including in terms of digitalisation and flexibility).

Moreover, in that case, the board of directors is legally obliged to convene the general assembly to amend the articles of association at the latest within a period of six months (no later than 30 June 2024). If the board of directors fails to do so, the directors will be personally, jointly and severally liable for damage suffered by the company or a third party.

If your articles of association have to be amended yet to comply with the new CCA, don’t wait too long to address this.

Astrea is happy to assist you in the process of modernising your articles of association and adapting them to the new company rules in a timely manner. Contact your regular contact person for a tailor-made quote.

One of the measures under the current government’s ‘labour deal’ is the introduction of the “transition trajectory”.

Such transition trajectory allows the employer to lend the employee to another employer (the “employer-user”) during the notice period, in the event of redundancy by the employer. The transition trajectory can be requested either by the (original) employer or the employee.

A transition trajectory thus constitutes an exception to the prohibition on lending of staff.

There is no enforceable right to a transition trajectory. A transition trajectory requires written contractual arrangements with four parties: (1) the employee, (2) the current employer, (3) the employer-user and (4) an employment intermediary (e.g. a temporary employment agency). This must include the conditions and duration of the lending of staff.

Still, the transition trajectory can be combined with the right to job seeking leave, but the employee is not allowed to abuse it.

A transition trajectory works as follows: The employer pays the wages applicable with the employer-user for the position the employee holds there or pays the current wages for the position with the employer itself if these exceed the remuneration with the employer-user. The employer-user must in turn compensate part of these wages by payment to the employer. The extent of this compensation by the employer-user is not determined by law. Both employers must agree on this: the employer-user pays only the difference between the current and the increased wages, pays a portion of the total remuneration, etc.

When the transition trajectory is completed, the employer-user must hire the employee with an employment contract of unlimited duration. If this obligation is not complied with, the employer-user must pay an indemnity equal to the current salary for half the term of the transition trajectory.

The employer-user may terminate the lending on the condition of respecting the normal legal notice periods based on the seniority as of the beginning of the transition trajectory. After the notice period, the employee will simply return to his job with the original employer for the performance of the remaining (original) notice period.

Finally, what is the added value of such a transition trajectory? The employers (original employer and employer-user) can agree to split the salary burden which they are both comfortable with. The employer-user can try out a new worker, without excessive notice periods if he wants to stop the lending. For the employee, it creates the perspective of a new employment contract.

The legislation still needs further implementation by means of a royal decree (e.g. regarding the minimum duration of a transition trajectory). This royal decree is currently not yet in place.

We will follow the matter closely and keep you informed!

For more detailed information about this new transition trajectory please contact our employment law team.

The reintegration trajectory was originally introduced by the legislator to enhance the reintegration of employees who have been incapacitated for a longer period (long-term illness). The main objective was to see if these employees could be phased back in gently, or if adjustments to their job or workstation were needed in this respect.

This reintegration trajectory has recently been updated, with effect as of 1 October 2022.

The major changes for employers are:

– The reintegration trajectory can be initiated by the employer after 3 months of uninterrupted work incapacity instead of 4 months;

– Certain deadlines within the reintegration trajectory were changed (such as the deadline for the employer to submit a reintegration plan).

– Regarding the reintegration plan, it is expressly stipulated that the employer must consider as much as possible the comments of the prevention advisor-occupational physician, the collective reintegration policy, and possibly also the right to reasonable accommodations for persons with disabilities.

– The employer must also clarify the reintegration plan to the employee if necessary.

Furthermore, the legislator has dissociated the termination of an employment contract due to medical force majeure (article 34 Employment Contracts Act) from the completion of the reintegration trajectory.

On 28 November 2022 a new procedure for terminating an employment contract due to medical force majeure entered into force. The conditions for invoking medical force majeure in order to terminate the employment contract were also modified.

This procedure is now totally separated from the reintegration trajectory.

It can be initiated after at least nine months of (uninterrupted) work incapacity and only if no reintegration trajectory for the employee concerned is ongoing. This nine-month period is only considered to be interrupted by an actual work resumption if this is not followed by a new work incapacity within fourteen days.

Both the employer and the employer can initiate this procedure, which is intended to verify whether it is definitively impossible for the employee to perform the agreed work.
In the framework of this procedure the employee is entitled to request that possibilities for adapted or other work be investigated, if it is determined that he can no longer perform the agreed work.

If medical force majeure is not established after this procedure, the reintegration trajectory remains possible to see if the employee can be phased back onto the work floor.

For more detailed information about this new procedure please contact our employment law team.

Astrea is very proud to have advised the November Five team in the 6M euro Series A investment round in Gorilla – Decisions, Based On Data with transatlantic VC Beringea & PMV – and the support from VLAIO – Flanders Innovation & Entrepreneurship!

Frédéric Verspreeuwen and Seppe Laenen assisted November Five during this transaction.

Big thank you to Tom Vroemans and Vincent Bruyneel for their continued trust in Astrea and to all parties involved (including our colleagues from Four&Five and Monard Law for the pleasant cooperation.

Congrats to all and good luck!

On 19 July 2022, Juventus Football Club s.p.a. (“Juventus”) was granted a preliminary injunction by the court of Rome against Blockeras s.r.l. (“Blockeras”) concerning the minting and marketing of NFTs.

Juventus had initiated preliminary injunction proceedings against Blockeras claiming Blockeras committed trademark infringement through the unauthorized production, marketing and online promotion of digital playing cards NFTs reproducing the image of former player Christian Vieri wearing the Juventus shirt and the name of the Juventus football team. In turn, Blockeras sought the dismissal of the motion for preliminary injunction on the grounds of lack of urgency, its right to use and/or market the cards in question, and, in the alternative, claiming that the protected trademarks were not registered in the category of downloadable virtual products.

Juventus is the owner of the wordmarks “JUVE” and “JUVENTUS” as well as the figurative mark consisting of the vertical black and white striped shirt with two stars on the chest (indicating the club’s victory in more than 20 championships). The court notes that the Juventus trademarks are well-known trademarks as it considers Juventus the most successful Italian football team with the largest number of fans in Italy and abroad. The court further notes that Juventus is engaged in widespread merchandising activities in various sectors (clothing, accessories and games) both online and through dedicated stores.

The court goes on to point out that there is a likelihood of confusion when the public might believe that the goods or services at issue, the NFT’s, come from the same undertaking, Juventus, or economically linked undertakings and considers that this likelihood of confusion should be assessed globally taking into account all relevant circumstances. The court found in the present case that although Blockeras used the image of Christian Vieri within the limits of the license agreement with the company that manages his image rights, it was still required to request authorization from Juventus for using its registered trademarks and thus the use of the registered trademarks by Blockeras was not justified.

Furthermore, the court notes that the trademark registration (in particular for class 9) also covers goods not included in the Nice Classification and that are inherent to downloadable electronic publications. In addition, the court refers to the fact that Juventus has become active in the field of crypto games, or blockchain games, i.e., online games that are based on blockchain technologies and on the use of cryptocurrencies and/or NFTs.

In view of the foregoing, the court considers the minting and marketing of the cards NFTs by Blockeras not only as a trademark infringement but also an act of unfair competition since Juventus also operates in the sector at issue and the trademarks are registered for classes including such type of activity.

The court upholds Juventus’ requests by ordering Blockeras:

• to cease within ten days as of communication of the order any further production, marketing, promotion and offering for sale, directly and/or indirectly, in any manner or form whatsoever, of the NFTs (non-fungible tokens) and digital content referred to in the motion for PI, as well as of any other NFTs (non-fungible tokens), digital content or product in general bearing the image referred to in the motion for PI, even if modified, and/or the Juventus trademarks in suit, as well as the use of such trademarks in any manner or form whatsoever;

• to withdraw from the market and remove from every website and/or from every page of a website directly and/or indirectly controlled by it on which such products are offered for sale and/or advertised, the NFTs (non-fungible tokens) and the digital content associated therewith or products in general covered by the injunction;

With this decision, the court of Rome is the first European court to rule that NFTs reproducing protected trademarks without authorization constitute trademark infringement and, on that basis, granting a related injunction.

In the last week of September, Europe was rocked by the leaks on the Nordstream 1 and 2 pipelines in the Baltic Sea (De Standaard 27/09/2022 1). These pipelines (until now particularly Nordstream 1) play a vital role in the gas supply of Germany and the European economy. The serious concern all over Europe about the incident, in which sabotage is suspected, only highlights the importance of these pipelines. As the pipeline was sabotaged after months of escalating tensions with Russia, the question arises to what extent other critical infrastructure is safe from such actions, and not only on a European scale but also in our own maritime front yard.

The Belgian part of the North Sea contains more and more infrastructure crucial to our economy and our energy supply. We think primarily of offshore wind farms, of course, but there is also a lot of crucial infrastructure (such as data cables) underneath the water surface that is vulnerable and worth protecting. Over the last years, suspicious activities were observed around such data cables by foreign powers, not only in our waters but also in those of neighbouring countries (Friesch Dagblad 4/10/2021²). This is more than concerning: on the one hand, there is the risk that a foreign power
listens in on communications passing through these cables, but on the other hand, sabotage and interruption of communications cannot be ruled out either. The development of underwater drones makes it even more important, that in addition to security above water, we are also able to monitor below the surface. Infrastructure deployed for maritime security must also remain operational.

Currently, however, the legal framework for this task, contained in the Belgian Shipping Code, is inadequate. The current security framework so far only focuses on the Belgian ports.

However, this will change on 1 January 2023. On 14/07/2022, the Belgian Chamber of Representatives adopted a law amending the Belgian Shipping Code on maritime security. The main novelties in this law, as far as maritime security is concerned, include a further implementation and transposition of the ISPS Regulation and the European Port Security Directive; the expansion of the definition of “unauthorised action”; the inclusion in the security assessment of the risks of interference by foreign powers in the framework of public or private cooperation; standards on security; the establishment of a new electronic platform and, finally, the security of the Belgian part of the North Sea itself.

The provisions on security of the North Sea are inserted into the Shipping Code in art. 2.5.2.63 et seq. The legislator recognises that all fixed structures in North Sea are at risk, and according to this article they must be subject to a security assessment. This is carried out by the operator of the infrastructure as well as the Belgian Maritime Security Centre (Maritiem Informatie Kruispunt, MIK). Security assessments will be carried out at least every five years, to check whether there are changes in the situation that require adjustments. It is noteworthy that such security assessments, in line with already existing port security assessments, are co-authored by private parties, who naturally have an economic interest in a well-developed protection plan for their infrastructure.

Based on the security assessment, the National Authority for Maritime Security (Nationale Autoriteit voor Maritieme Beveiliging, NAMB) decides whether or not a security plan has to be issued, which is also valid for five years. As part of this plan, the NAMB may issue instructions that will be binding after confirmation by the Government.

In securing the North Sea, the so-called Belgian Mathematical Model for the North Sea (BMM) which is part of the Royal Belgian Institute of Natural Sciences will also play a role. The BMM aircraft that currently already conduct scientific and patrol flights over the sea will also be used to help achieve security in the North Sea. The Belgian Marine will also be given the explicit power to divert ships that threaten public security or for which there are well-founded suspicions that they are involved in espionage or sabotage, to a Belgian port for further investigations.

The fate that has befallen Nordstream should therefore be made considerably more difficult for the infrastructure in the Belgian North Sea from 2023 onwards, through a compulsory five-yearly thorough risk analysis and thorough monitoring by a large consortium of authorities. It remains to be seen, however, whether bold actions such as those that have occurred recently will not lead to additional European initiatives, which will mean that the new maritime safety law, which is due to come into force shortly, will have to be updated again.

1 Alles wijst op sabotage bij gasexplosies Baltische Zee, maar door wie? | De Standaard

² Russische onderzeeërs snuffelen rond in Noordzee: belangstelling voor datakabels is een ‘potentiële dreiging’, zegt ministerie van Defensie – Friesch Dagblad

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In the context of financial law, the current definition of a “person in contact with the public” (“PCP”) will be expanded as of August 1, 2022. It will also include persons who are not in contact with the public. This is due to the Law of 27 June 2021 containing various financial provisions that will amend article 1.9, 79° of the Economic Code.

The present and future definition

Currently, the definition of a PCP encompasses any natural person who is in contact with the public at a lender or credit intermediary for the purpose of proposing credit agreements or providing information about them. As a result of the amendment to the law, this definition will broaden to include persons who are directly involved in intermediary activities. They do not even have to be in contact with the public.

Specifically, for the qualification as a PCP, it must be examined whether the person directly involved in the mediation work plays an important role in the procedure of the offer or the conclusion of a credit agreement. A supporting function is insufficient. One should not take into account the official job description, but rather the concrete activity that the person performs.

A few illustrations

The Financial Services and Markets Authority (FSMA) gives some examples of what constitutes a support function. Like:

– the person who prepares commercial and legal documents;

– the person who merely enters data into an IT tool without making any appreciation;

– the person who creates an automatic credit process and thereby determines the criteria to be taken into account by the automatic process in order to grant a credit automatically;

– the person who follows up on the repayments of previously granted credits;

– the person who manages the collection of debts;

– the person who examines the credit file and verifies that it is complete, without performing a credit analysis or an analysis of repayment capacity;

– the person who reviews the file to detect any fraud;

– the employee of the human resources and information technology department.

Examples of important functions, on the other hand, are:

– the person who proposes to the borrower to enter into a credit agreement;

– the person who assists the borrower in completing a new credit application;

– the person who makes the credit decision and decides whether or not to make a credit offer;

– the person who verifies the decision of an automatic credit process and may make a different credit decision in the process;

– the person who responds to customer inquiries and handles the requests related to an amendment to the existing credit agreement. However, it is required that the amendment economically leads to a similar situation as when “proposing”, “offering” or “concluding” a new credit agreement. For instance, a drawdown of credit, the constitution of additional surety or a change to the contractually agreed periodic interest rate.

The importance of qualifying as a PCP

Astrea recommends that you thoroughly review the positions of your employees. After all, if an employee is qualified as a PCP, that person is subject to examination and retraining obligations.

For more information, you can always contact Astrea. Please find below the relevant sources.

– Article 367 Act of 27 June 2021 containing various financial provisions

– Article 1.9, 79° Economic Code

– https://www.fsma.be/nl/tussenpersonen-kredietgevers/wie-kwalificeert-als-pcp-kredietbemiddeling-hiermee-gelijkgesteld