With its Street View cars, Google gathered for two years, systematically and without the knowledge of those involved, the unique number of 3.6 million Wi-Fi routers in the Netherlands that also contained the location. On this basis, Google acquired data about the holder of the WI-FI router. This involves personal data such as email addresses, medical data and information on financial transactions.

Google has been summoned to inform all involved parties within three months about the collection of personal data it has accumulated. Furthermore, Google should also enable these parties to object to the processing of their personal data by internet by means of an opt-out system. If Google does not comply with these conditions, then Google is liable to payment of a penalty of up to a maximum of one million Euros. Google has the option to object and appeal against this decision of DPA.

The court ruled that the indictment included virtual child pornography images that are punishable under Article 240b of the Penal Code. The intention of this offense, after amendment in 2002 had been made, is no longer purely to protect the depicted young persons, but also to protect children in general against conduct that could be used to encourage or entice children to engage in sexual conduct or behavior that may become part of a subculture that promotes sexual abuse of children.

Justification for the offense is also the preventing of damage caused by the circulation of images that suggests sexual abuse. The legislator could at the time not foresee what opportunities would come up the virtual field. The virtual images that are being made nowadays can be very realistic. To answer the question whether this virtual image is punishable, the Court looked at the purpose of the amendment in the legislation.

It should be prevented that scope of criminalization is stretched too far. These images should then also have the intent to generate sexual arousal or sexual purposes. In this case, the Court ruled that the images damaged the interests that the legislator intended to protect with the amendment of the legislation.

Facts

The employee started with her employer on September 1, 2009. Employee worked in the kitchen of the hotel of employer. In February 2011, the employer discovered that the employee played in an erotic movie in her free time. The movie can be seen on an erotic website and is accessible to the public against payment of a fee.

The employer dismisses the employee on the spot because it does not wish to be associated with the activities undertaken by the employee. Employee would have exceeded the house rules of the hotel with her conduct. According to the employer, the behaviour of the employee damages the good reputation of the hotel and employer is incurring damages. The fact that employee made the movie in her private time and that the employee has had no contact with clients of the hotel, is irrelevant according to the employer. According to the employer, the point is that it is known that an employee of the hotel participated in the making of an erotic movie and that this movie is freely accessible to the public.

The ruling of the Court:

The Court takes all circumstances of this case into account when assessing this dispute. The nature and severity of the reasons for dismissal need to be weighed against the personal circumstances of the employee. Having taken into account all circumstances, the Court finds that the conduct of employee poses no serious threat to the employer. The movie was made in private and this has no relevance with the operations of the hotel and the role of the employee in the hotel. Moreover, the employee did not have any contact with clients of the hotel. The Court ascertains that a termination of the employment contract has a severe impact on the successful completion of the training of the employee. The employer has not proven that continuation of the employment relationship will result in adverse publicity and reputational damage for the hotel. The dismissal will therefore be overturned. The Court rules that the employment contract has not been terminated lawfully and orders the employer to pay salary in arrears.

Corporate law is part of a broader companies law (or law of business associations). Other types of business associations can include partnerships, or trusts (like a pension fund) or companies limited by guarantee (like some universities or charities). Corporate law is about big business, which has a separate legal personality, with limited liability or unlimited liability for its members or shareholders, who buy and sell their stocks depending on the performance of the board of directors. It deals with the firms that are incorporated or registered under the corporate or company law of a sovereign state or their sub national states.

The four defining characteristics of the modern corporation are: a) Separate Legal Personality of the corporation (the right to sue and be sued in its own name i.e. the law treats the company as a human being), b) Limited Liability of the shareholders (so that when the company is insolvent, they only owe the money that they subscribed for in shares), c) Shares (either held in private or on a stock exchange, such as the London Stock Exchange, New York Stock Exchange or Euronext in Paris) and d) Delegated Management, in other words, control of the company placed in the hands of a board of directors.

In most developed countries excluding the English speaking world, company boards are appointed as representatives of both shareholders and employees to “codetermine” company strategy. Corporate law is often divided into corporate governance (which concerns the various power relations within a corporation) and corporate finance (which concerns the rules on how capital is used).

The word “corporation” is generally synonymous with large publicly owned companies. In the United States, a company may or may not be a separate legal entity, and is often used synonymously with “firm” or “business.” A corporation may accurately be called a company; however, a company should not necessarily be called a corporation, which has distinct characteristics.

The defining feature of a corporation is its legal independence from the people who create it. If a corporation fails, its shareholders will lose their money, and employees will lose their jobs, though disproportionately affecting its workers as opposed to its upper executives. Shareholders, however, owning a part or piece of the company, are not liable for debts that remain owing to the corporation’s creditors. This rule is called limited liability, and it is why corporations end with “Ltd.” (or some variant like “Inc.” and “plc”).

But despite this, corporations are recognized by the law to have rights and responsibilities like actual people. Corporations are accountable to exercise human rights for real individuals and the state, and wittingly or unwittingly, may be responsible for human rights violations in their business practices, which is another reason why it is essential to have appropriate local legal counsel when operating as a subsidiary in another country.  Just as they are “born” into existence through its members obtaining a certificate of incorporation, they can “die” when they lose money into insolvency. Unfortunately, experienced legal counsel can become necessary if bankruptcy or liquidation becomes an issue.  Corporations and/or their officers, executives, and employees can even be convicted of criminal offences, such as fraud, negligence, and manslaughter under the corporation’s umbrella. Again, the necessity of experienced, knowledgeable counsel who has the best interest of the corporation in mind becomes paramount in such cases.

Given that corporations are held to the same moral and ethical accountability as individuals, it is essential that they have experienced and trust worthy legal representation such as ZL Attorneys. At ZL Attorneys, we have the knowledge and experience to work comprehensively with our clients regarding every aspect and function of the corporation, and the corporate structure as it functions in Curacao. When something ordinary or extraordinary occurs within the company, the corporation can be assured that their attorney already knows their business intimately, and is prepared for any event.

Contract law includes providing support and documentation for the establishment of companies and other corporate entities, mergers & acquisitions and investments, corporate and commercial litigation, the legal structuring and reorganization of corporate entities or groups of corporate entities, corporate governance, share transfers and commercial contracts.

When entering into a business relationship (even with friends), it is advisable to construct, agree upon, and sign a contract with two purposes in mind: one: to clarify the roles and responsibilities of each party/person that the contract pertains to, and two: to avoid any misunderstandings or miscommunications between parties/persons. It may very well be the case that both parties are acting in good faith for mutual benefit and success, but if there is no contract in place, parties may have a different memory or opinion about issues that were discussed and even agreed upon or, the circumstances of one of the parties could change during the course of the business relationship. Many issues can be avoided by having a solid and binding contract in place!

What we recommend and provide for our clients regarding contracts range from meeting with the parties involved, and designing the contract to suit the needs of a particular agreement or relationship, reviewing and renegotiating terms during the contract writing period, review of contracts and advisement before a contract is signed, review of contracts due to a dispute, termination of contract advisement, contract renewal negotiations, and legal issues within a contract. We have the ability and experience to work with our clients at any point in the contract process to provide a thorough evaluation of our client’s position, and make determinations which are in our client’s best interests.

Retirement is meant for certainty of an income replacement in old age, death or disability. There are a number of developments that create pressure on the sustainability of pensions. The financial crisis has affected the power of pension fund managers. Life expectancy is increasing so that pensions should be paid over a longer period. The interest rates fall and investment opportunities appear to be limited, probably partly due to regulatory barriers and the increase of rules and limitations by the regulator. This has made the retirement security uncertain. The central question is how our pension system could remain stable in the future.

ZL Attorneys Pension Seminar Presentation Slides

Elma Boss

Eric Matoo

Erik Lutjens

Laurens Keesen

Natascha Poulina

Royston Sling

Hundreds of commercial FCIB account holders are facing bankruptcy because they have not been able to access their money for more than a year, the Dutch newspaper writes on the authority of Zahavi. The barrister has made similar statements in publications such as the Amigoe several months ago.
The bank, forced to close its doors in 2006, is owned by Deuss, who is suspected of fraud. In total, 5000 account holders are unable to access their bank balances, because the BNA is blocking practically all accounts. In this way, the BNA is holding on to a total of more than half a billion Euros, says De Telegraaf.
Zahavi is the legal representative of an international group of approximately 200 customers of the Bank who have fallen victim to the situation, including various telecommunication and insurance companies. The Central Bank\’s press release strongly criticizes him, but without forcing him to rectify his statements.
The BNA, led by its president, Emsley Tromp: “The newspaper article reports the point of view of the barrister, Zahavi, which, in summary, is that the BNA is wilfully frustrating the liquidation of FCIB, and that the BNA is doing so for shadowy, dark reasons, one of which is that the BNA would be profiting from interest earned on the funds not released (according to Zahavi, almost €2 million in interest income a month, ed.).

The assertions, or more accurately, the accusations by Mr. Zahavi, are not based on fact and are strenuously denied by the BNA. The BNA added, that Mr. Zahavi acts for a number of parties who are regarded as being part of a high-risk group.”
The counsel\’s response, reported by the Amigoe, was as follows: “The BNA has arbitrarily created these high-risk groups, i.e. invented them. The BNA has not provided a single piece of evidence to show that even one of these customers is in any way involved in VAT fraud or other illegal activities. Nor are there any criminal investigations that involve these customers or any legal attachments against them.” He went on to say that the BNA, without any evidence, is now holding on to the funds of these accounts holders.

RECRIMINATIONS
The lawyer and the Central Bank are blaming each other of damaging the reputations \’of Curacao as a trustworthy jurisdiction\’ (Zahavi) and \’of the BNA, and by extension of the financial sector of the Dutch Antilles\’ (BNA).
According to Zahavi, interest income is not the only dark motive on the part of the BNA. “When the FCIB in future is fined, and this is certainly not inconceivable, the Central Bank wants to be able to recover the fine from the account holders. This, despite the fact that the FCIB has been allowed to operate under the supervision of the very same Central Bank. It is a crying shame”, he says in De Telegraaf. Zahavi also suspects, he tells the editor of the Amigoe, that the BNA is guilty of conducting `fishing expeditions\’: “The improper gathering of evidence for the purpose of subsequently using it in other legal proceedings against the account holders. The European Court of Appeals has ruled this to be unlawful.”

Zahavi: \’BNA continuously loses documents that have been provided\’

In response to the tardiness alleged against them, the BNA argues that `in light of the suspected criminal activity, and in order to prevent the release of customer funds being handled illegally\’, the Central Bank has decided that as far as customers in the so-called high-risk group are concerned – and, as mentioned above, this includes Zahavi\’s clients according to the BNA – the FCIB will not release funds until the relevant customer and their account with the FCIB has been investigated. “The liquidation of the FCIB is also complex and time-consuming because of the number of customers and accounts involved.”
Zahavi: “The BNA continuously loses documents that have already been handed over four and five times. Furthermore, they keep on asking for information that has been provided already.” According to him, the account holders have lost confidence in the BNA and suspect that this is being done deliberately, to frustrate the process of releasing the funds. “Moreover, we have received written confirmation from the FCIB that releasing the funds belonging to these account holders is a low priority\’. However, it must be remembered that we are talking about approximately 80 percent of all the account holders. Why is it that the BNA does not finalise these diligently, as they have stated they would?”

This is all about the liquidation of FCIB\’s banking activities. This bank was discredited in September 2006, when it emerged that the Dutch Attorney General\’s Department suspected a considerable number of FCIB customers of being guilty of illegal activities, and that the FCIB was suspected of committing illegal acts, including money laundering. De Telegraaf writes that the FCIB, according to British and Dutch police,\’ acted as the linchpin for the largest tax fraud of all time\’ and that investigations were to show that the bank was used by British criminals in particular to commit VAT fraud, cheating the British government of as much as € 7.5 billion.
FCIB\’s banking license was cancelled on 9 October 2006, and the court on Curacao handed down the emergency measures with regard to the FCIB. Pursuant to the Netherlands Antilles Decree on the Supervision on Banking and Credit Institutions, the BNA was then charged with the liquidation process.

OUT OF HAND
According to the barrister, the administrators promised they would quickly investigate which of the customers were involved in illegal practices, so that all honest account holders could have their money returned. However, according to Zahavi, the investigation got out of hand completely. “The procedures are so stringent, that not one customer is able to meet the BNA\’s requirements. Moreover, new requirements are being set at every turn.” 80 percent of the account holders are now regarded as suspect by the BNA, continued the lawyer. “This is pure nonsense. The majority has never had anything to do with British VAT”, according to Zahavi.

He continued by saying that the BNA has always indicated that the purpose of the investigations is to find out whether account holders may have been involved in British VAT fraud. “If that is what they say, they only need to check those account holders who have dealings involving British VAT. This concerns only a very small number of account holders, estimated at less than 5 percent. Instead, the BNA has now designated an estimated 80 percent of the account holders as being part of a \’high-risk group\’.” According to him, this includes trust offices and internet companies, even though they have never had anything to do with VAT.

Source: National newspaper Amigoe, Curacao, September 12, 2007

Mobile phone and computer chip traders warned to act quickly to see any hope of recovering combined £370 million frozen in offshore bank, FCIB, in Dutch Antilles

Mobile traders with money frozen by the First Curacao International Bank (FCIB) in the Dutch Antilles must act quickly to apply for their funds to be released, said Dass Solicitors and Z L Attorneys last week.

Both firms said account holders can apply for funds to be released during the administration of the FCIB, but will only have until the company officially goes into liquidation at which points funds will no longer be released.

Z L Attorneys partner Daniel Zahavi said: “If traders don’t act, their money won’t be released, even if they are innocent. This will be a battle and the longer traders take to come to us to apply for their money to be released, the more likely it is that the central bank will impose further rules to prevent accounts from being unfrozen. It will be much harder then.”

The majority of FCIB account holders are mobile and computer chip traders who opted for an offshore account after been “forced” out of the UK banking system when UK banks, under pressure from HM Revenue and Customers (HMRC), sent out 30-day letters indicating their accounts would be closed on suspicion of money laundering, said Dass Solicitors partner Alias Dass.

“Hundreds of mobile traders currently have their accounts frozen with FCIB. Now’s the time to act to get the money back,” he said.

Zahavi claimed around 2,400 FCIB accounts, containing upwards of £370 million, are frozen. Said Zahavi: “To date, we have been able to release several millions of pounds. In September 2006 we won 25 cases and FCIB was ordered to release funds worth tens of millions of pounds. Most of the cases we’ve won have enabled account holders to receive 75 per cent of their funds.”

But the supervisory authority in the Dutch Antilles, the Bank of Netherland Antilles (BNA), has since imposed rules to prevent court cases won against FCIB from releasing funds.  It revoked FCIB’s banking licence in October 2007, forcing the company into administration.

Zahavi said FCIB would be found guilty of money laundering itself if it was to release further funds.

Zahavi said HMRC has a list of traders it believes to be involved in missing trader VAT fraud and tax evasion, and has agreed with BNA to prevent funds being released to listed traders. The list is not available under the Freedom of Information Act as it includes suspected criminals and its publication would undermine future raids by the Serious Organised Crime Agency  (SOCA), said Dass.

BNA has an informal policy to release funds if HMRC grants approval, but Zahavi said this is yet to happen.

“HMRC has not agreed for funds to be released. We don’t know how HMRC is compiling the list of traders it suspects.”

Dass said: “We are going to appeal on the grounds that human rights are being affected because legitimate traders have their money stuck.

“Three years of this is long enough. Traders who have accounts with FCIB should know there is a lot of information in the public domain which they have the right to access, and now is the time to act.”

Case
An employee has been employed since January 1, 1989 when the predecessor of SDU Uitgevers BV (SDU) acted as the acquirer for the ad group Automation. Since July 1, 2007, the employee performs the function of account manager in the construction business unit. This consists mainly of recruiting of advertisers.

In 2008, the employee has an affective relationship with a colleague. This colleague was also employed at the business unit Construction of SDU. As of September 1, 2008, the male colleague joined Kluwer, which is a competitor of SDU. By letter dated September 12, 2008, SDU has informed the employee that the move from her colleague to Kluwer and her relationship with him are sufficient reason to question her work in the Construction Unit. She was then offered a transfer to the Business Information unit of SDU. The reason for the transfer is to protect business interests. The employee is transferred so she is not working within the customer base of the Construction business unit. The personal relationship that this employee had with her ex-colleague is too risky in connection with intertwined interests.

Court of first instance ruling

The employee refuses employment with another business unit of SDU. On December 24, 2008 the employee requests the District Court to rescind the contract. The District Court awarded the employee severance payment in the amount of 17,500 Euros. This is in contrast to the amount of 103.123 Euros that she has claimed. The employee therefore appeals the verdict.  

Court of Appeal

The Court of Appeal considers whether SDU was authorized to instruct the employee to continue her work at another business unit. Suggested that while It should be considered whether SDU possessed the discretion to transfer the employee to another job position. The Court believes that the employer does not contain this authority, based upon the instructional competence rules resulting from Article 7:660 Civil Code. The case is appealed with the Supreme Court.

The Supreme Court has determined that the employer and employee are required to behave as a good employer and a good employee towards each other. Regarding the employee this means that he must deal with reasonable proposals of the employer relating to changing circumstances at work. In general, the employee should react positive on this, he may only reject such proposals, if this cannot be expected from him in all reason. It should be examined whether the employer’s proposal is reasonable. The Supreme Court referred the case back to the Court of Appeal.

The Court of Appeal held that the proposal of SDU is reasonable. The importance of SDU in the transfer of the worker outweighs the interest of the worker. The Court considers that the employment relationship between the SDU and the worker might become pressurized because of conflicts of interest and loyalty. It is important for the SDU that the commercial business unit should be allowed to develop strategic plans freely without the risk that these plans could be released to its direct competitor. According to the Court, these are important interests. The employee believes that she has no tie to the business unit at all. The Court considers that this interest weighs less than the interests of SDU. The offer of the employer to transfer the employee was therefore reasonable.

Background of this ruling

The AGM of a private company, consisting of one shareholder, had agreed outside the meeting to dismiss one of the directors immediately. The director had not been given an opportunity to render his advice. After this, an AGM was convened whereby that director had been invited to state his advisory vote. Despite this invitation, the director does not show up at the AGM. The other directors are not invited to this AGM. During the AGM the decision was made (again) to dismiss the director. The director does not agree with the decision for his dismissal and takes the company to Court.

The Supreme Court confirmed in its ruling of December 22, 2009 that, outside an AGM, directors have an advisory vote with regards to the taking of decisions. In addition, the Supreme Court ruled that if, during an AGM a decision was to be made about the dismissal of a director, both this director as well as other directors should have the opportunity to be heard.

Always invite Directors

From the ruling of December 22, 2009, it follows that all directors have an advisory role and should be heard if a proposal is made to dismiss one of the directors. This does not only apply to dismissal decisions but also to other decisions of the AGM. All directors must therefore be invited to the AGM, so that they have an opportunity to state their voice. It is advisable to send the invitations to the AGM to the directors in writing and to explicitly indicate their right to their advisory vote.