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Ekelmans Advocaten strengthens team with Marcella de Haan as Partner

Ekelmans Advocaten strengthens team with Marcella de Haan as Partner 525 400 Ekelmans Advocaten
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As of October 1, 2024, Marcella de Haan has started as an attorney partner at Ekelmans Advocaten. We are very pleased to have Marcella join our team. She can now put her years of experience as a lawyer in insurance and liability law to work for clients of our firm. We are looking forward to working with Marcella again: she had previously worked in our office as an insurance and liability lawyer.

Marcella is an expert in insurance and liability law, with a focus on technical insurance. She is a leading lawyer not only in the Engineering practice, but also in Professional Liability and Corporate Liability.

With her experience as a senior attorney at a major insurer, Marcella knows the insurance industry inside out. With great expertise, market knowledge and her down-to-earth empathetic approach, she knows well what clients want and gets to the heart of the matter quickly.

Also because Marcella until recently combined her position as a lawyer in the insurance sector with a management position, she is an asset as a partner in our firm.

In addition to her work as a lawyer, Marcella shares her knowledge as a guest lecturer at the University of Amsterdam and Erasmus University. She is co-author of the handbook Professional Liability and also contributed to the Compendium Insurance Law, of which a new edition was recently published. She is also an editorial board member of the online journal Insurance Law, Liability, Claims and Supervision (VAST) and a board member of the Association for Insurance Science.

“I look forward to co-leading the Engineering practice with Marcella” says Frank Schaaf, attorney and partner at Ekelmans Lawyers. “Her expertise, experience and knowledge of insurers make Marcella an asset to our firm and our clients. It is a pleasure to work with Marcella again”.

Learn more?

Learn more about Marcella de Haan and her expertise.

With great expertise, market knowledge and her down-to-earth empathetic approach, she knows well what clients want and gets to the heart of the matter quickly.

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WAM policy: who is the driver of a car? Supreme Court questions ECJ in ‘handbrake trigger’ case

WAM policy: who is the driver of a car? Supreme Court questions ECJ in ‘handbrake trigger’ case 591 450 Ekelmans Advocaten
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The Supreme Court on 5 July 2024 referred questions to the CJEU on the interpretation of the term ‘driver’ in European rules on WAM insurance. In this case, lawyer Marieke van der Keur is conducting the cassation proceedings on behalf of the WAM insurer.

HR 5 July 2024, ECLI:NL:HR:2024:1022, Supreme Court, 23/00813 (jurisprudence.nl)

What happened?

During a ride by some friends in a passenger van, a passenger suddenly pulls the handbrake. The van goes into an uncontrolled skid and collides with a pillar. The person behind the wheel is seriously injured. He claims compensation from the van’s WAM insurer.

Dutch law & the European WAM Directive

According to Art. 4(1) WAM, the insurer does not have to provide coverage for the damages of ‘the driver’ of the motor vehicle that caused the accident. This section of the law is an elaboration of the WAM Directive, which allows this one exception to compulsory WAM cover.

This case therefore revolves around whether the person behind the wheel lost ‘the capacity of driver’ when the occupant suddenly applied the handbrake, rendering the car uncontrollable.

Ruling court and court of appeal

The court ruled in favour of the person behind the wheel. After applying the handbrake, he could no longer control the car: he could no longer determine the direction and speed of the car. The person behind the wheel was therefore no longer a ‘driver’ at that point. According to the court, the WAM insurer therefore had to provide cover.

The court ruled differently. According to the court, the person behind the wheel had always remained the driver: he had taken the driver’s seat, he had set the van in motion and determined the speed and direction of travel. He did not cease to be the driver merely because another person also performed a driving act by pulling the handbrake.

This judgment was appealed in cassation.

Opinion of the Advocate General (A-G): ‘acte clair

The Advocate General earlier advised the Supreme Court to annul the judgment of the court of appeal. According to the A-G, it is clear that the person behind the wheel ceases to be a ‘driver’ if he can no longer exercise ‘control’ over the car due to the actions of a passenger.

According to the A-G, it is irrelevant whether the passenger intentionally takes over the steering or accidentally deprives the person behind the wheel of control. Think of a co-driver who accidentally deprives the driver of his view of the road with a newspaper, an occupant who spills hot coffee on the person behind the wheel when opening a thermos or accidentally elbows him, causing the driver to be startled and lose control of the wheel. Even in those cases, the driver is no longer a driver.

According to the A-G, that is an acte clair, i.e. ‘a cat in the tank’. The A-G takes into account how this WAM issue is decided in Belgium in civil case law. There, one is a driver as long as one has ‘mastery’ or ‘maîtrise’ in French, over the car. If the driver loses this maîtrise at any time through the actions of an occupant, he is no longer a driver.

Supreme Court ruling

The Supreme Court takes a different view of the case than the A-G. According to the HR, it is not clear when a driver ceases to be a driver.

The HR considers that the term ‘driver’ in the WAM must be interpreted in accordance with European rules on WAM insurance. The Court of Justice of the EU has pointed out the importance of the protection of occupants in several rulings on those rules. The question is whether Article 12(1) of the WAM Directive 2009/103 should be interpreted to mean that WAM insurance should cover liability for the damage of the (initial) driver when an occupant interferes with the steering of the motor vehicle and an accident occurs as a result.

A second question is whether other circumstances are relevant to the question of whether a person has lost the capacity of driver so that he can claim coverage under WAM as an occupant. Consider whether the passenger deliberately interfered with the steering or not.

The Supreme Court has referred these questions to the CJEU.

Continued

The Supreme Court first waits for the European Court to answer its questions. After that, the Supreme Court will give its final ruling taking these answers into account.

Want to know more about Supreme Court and Expert litigation?

Are you conducting appeal proceedings and expecting the case to reach the Supreme Court? Then it is smart to seek advice now from a cassation lawyer about your chances of success if you submit your case to the Supreme Court.

Ekelmans Advocaten has a highly regarded cassation practice. The involvement of our lawyers regularly leads to interesting Supreme Court rulings.

Our Supreme Court and Expert Litigation lawyers are litigation experts, providing insight into the big picture and sharpening the finer points.

We also send a newsletter Civil Litigation Practice to our contacts. Interested? If so, we would be happy to receive your subscription.

Marieke van der Keur
Marieke van der Keur

Marieke van der Keur

+31 70 374 63 16

Marieke van der Keur is an experienced cassation lawyer.
She also provides support for other lawyers in professional liability cases. Furthermore, she advises other lawyers, for example in cases that are complicated or involve a matter of principle, where the parties wish to be prepared for a possible appeal in cassation.

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The risks of recreational wild swimming: personal injury and liability. An analysis of Dutch case law

The risks of recreational wild swimming: personal injury and liability. An analysis of Dutch case law 525 400 Ekelmans Advocaten
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In the Netherlands, there are more than 700 locations officially designated as safe places to swim. Many more places are expected to be unofficially used for recreational swimming. Although over 90% of the Dutch master the basics of swimming, swimming in outdoor areas has been proven to remain a risky activity. In this article Diederik Hulsbergen will share an insight in recent Dutch case law on liability for owners of outdoor areas that are used for recreational swimming.

Court of Limburg, 26 October 2023

A 16 year old boy sustained a high spinal cord injury after diving into shallow water in a lake in a nature reserve in the Dutch province Limburg. Het Landschap is the manager/owner of the nature reserve. The boy, claimant in the following legal procedure, deems Het Landschap and its liability insurer Nationale Nederlanden (hereinafter: NN) liable for the damages he suffered. According to the claimant, Het Landschap and NN are liable on grounds of wrongful act (article 6:162 of the Dutch Civil Code). The Court of Limburg ruled in this case on 26 October 2023.[1] The verdict: the owner of the nature reserve and its liability insurer are liable and have to compensate the boys damages for 80%.

Facts and views of the matter

In this case, the claimant argued that Het Landschap and NN are liable because the owner of a wild swimming area has a duty of care to prevent endangering circumstances. According to the claimant, at the lake where he dived into the shallow water, swimming was frequent. At the time of the accident, because of the restrictions in place due to the COVID-19 pandemic, there was even more swimming than usual, as few other recreational opportunities existed. This was known to Het Landschap. It was also known that the water there was shallow in many places. The claimant argued that it is a fact of common knowledge that younger recreationists – due to their rash and inexperience – tend not to exercise ideal caution in their recreational activities. Therefore, there was a high probability that a younger recreant would dive into the water without first checking how deep the water was. This was foreseeable to Het Landschap, the claimant argued.

Het Landschap argued that the nature reserve is not designed as a swimming recreation area, nor is it designated as a swimming location. Het Landschap also had not promoted the lake as a swimming location. As such, the conditions at the site do not create a hazard. Shallow water and swimming are both not hazardous in general and the likelihood of danger is low. Danger only occurs if someone decides to dive into the shallow water while running. At the accident site, there were no indicators to assume that diving could be done responsibly. If it were assumed that there was little objection to taking measures, it would mean that warning signs would have to be put up at all places in the Netherlands, including all nature reserves where water occurs. Het Landschap does not have the financial resources to provide signs on the approximately 9,000 hectares it currently owns and manages. So taking action was objectionable.

The court’s considerations

The Court of Limburg rules in favor of the claimant and ruled that Het Landschap and NN are liable for the damages of the claimant, due to unlawful endangerment.

Established Supreme Court case law determines that the following circumstances must be tested to assess whether unlawful endangerment exists:

  • the extent to which disregard for due caution is likely,
  • the likelihood of accidents occurring as a result,
  • the severity of the possible consequences, and
  • the extent to which taking safety measures would be objectionable.

The defense of Het Landschap and NN that Het Landschap does not have a duty of care because the nature reserve is not designed as a swimming recreation area fails. According to the court, the mere fact that this is so, does not relieve the owner of every duty of care.

The court considered to be a decisive factor that the lake was structurally used as an unofficial recreational swimming site. Also, a survey conducted by an expert showed that Het Landschap was aware of this fact. According to the court, it is to be expected that people do not always enter the water with caution and could therefore dive from the bank into the water. Given that the water is shallow for the first few metres and it is a fact of common knowledge that diving into shallow water can cause serious injuries, the likelihood of subsequent accidents with serious consequences is high. The court therefore held that there was a dangerous situation.

In the court’s view, it is not inconvenient for Het Landschap to warn recreational users of the shallow water. This can easily be done by placing warning signs in the water at the spot, which are now missing. In view of the above, the court finds that Het Landschap breached its duty of care by failing to post warning signs. In doing so, Het Landschap committed a wrongful act towards the claimant. Het Landschap and NN are therefore liable for the damages caused by the sustained injury.

The court however also acknowledges that the claimant should have been more careful himself, and that he is half (50%) at fault for the accident. Since he did not know the spot where he dived and it was not an official swimming location, he should have first checked how deep the water was. Because he did not do so, he did not exercise the caution he should have exercised and thus contributed significantly to his accident. After weighing the circumstances of the case, the court applies a so called ‘fairness correction’, such that the extent of the liability of Het Landschap and NN is set at 80%. Such a correction can be applied, inter alia, because that the liable party has liability insurance and therefore has greater capacity to pay the financial damages.

A comparison with other recent case law: Court of Amsterdam, 31 march 2022

The prevalent view in Dutch case law is that the owner of a site that – in theory – could be used for recreational swimming, should anticipate unthoughtful and inattentive swimming behavior of visitors.[2] On 31 march 2022, the Court of Amsterdam remarkably ruled very opposite to this view.[3]

Facts and views of the matter

In this case, the municipality of Amsterdam was held liable when a visitor of the city suffered a severe lower spinal cord injury from diving head first into a shallow part of the IJ Harbor, located in Amsterdam. The water of the IJ harbor is surrounded by a quay on one side, a building on the other side and – between them – a stone terrace. The last step of this terrace is underwater, overflowing into a concrete slab. This makes this part of the water in the IJ harbor very shallow. The same question as the one in the case discussed above, was assessed by the court of Amsterdam: is the owner of the water liable for the claimant’s damages due to the lack of warning for the shallow water, causing an unlawful endangerment?

Very notably, the court of Amsterdam starts its ruling by considering it facts of common knowledge that diving into shallow water can cause serious injuries and that it is dangerous to dive into water of which one does not know how deep it is. In the case reviewed above, the court of Limburg considered that these common knowledges explicitly urged a warning from the owner of the lake. The court of Amsterdam however considers oppositely that these common knowledges make the probability that a visitor is not cautious when diving from the quay in the harbor, to be small. The descending terrace into the water should have been an indication for the claimant that the water was shallow. In this context, the court stated that the probability of someone entering the water in this area of the harbor without checking the depth is very low. This is a very small chance of a great danger.

Apparently, the court also considers as equally relevant that it is forbidden to swim in this area. This factor was put forward by the municipality. For this reason, the municipality is not obliged to take safety measures, the court ruled. The municipality is therefore not liable for the damages of the claimant. As will become clear below, the key consideration of the court appears to be:

“The person who jumps or dives into the water at the present location, where it is forbidden to swim, relatively close to the stone terrace steps, (…) is not behaving as visitors to that location generally tend to behave. In any case, that behavior is not foreseeable to the extent that the municipality should have taken measures.”

An unexpected turn of events: the ruling is overturned by the same court

The ruling mentioned above was an interlocutory judgment. In general, interlocutory rulings are binding: the court cannot depart from this ruling at a later stage of the proceedings. The claimant however initiated proceedings on the merits based on new facts, which would shed a different light on the matter. The claimant obtained internal documents from the municipality, which proved that the municipality was aware that people regularly swim there. The documents also showed that there was no ban on swimming at the site and that the area was identified as a place where people often swim recreationally.

On 21 February 2024, the court of Amsterdam overrules the interlocutory judgement with a revised judgement.[4] The court rules that the distinction between a no-swimming spot and a wild swimming spot is relevant to the duty of care to be observed by the municipality. The municipal documents that have become available show that the municipality was aware of safety risks at wild swimming spots in the city and that it is taking measures to improve physical safety at these spots.

In the interlocutory judgment, the court ruled that the likelihood of a careless visitor diving into the shallow part of the water and thereby failing to meet the required degree of caution was very low. It now reverses that assessment. The visual material (photos and videos) showed by the claimant during the proceedings, show dozens of people jumping or diving into the water from the quay on busy summer days. Therefore, the likelihood of accidents arising from that behavior in this area is considered high. On these grounds, the municipality is liable after all. Nonetheless, the court held that there was also fault on the part of the claimant, resulting in 20% of the dameges remaining at his own expense.

Relevant insights

Despite the court of Amsterdam overruling its own previous judgment, these rulings still provide some interesting insights.

Common knowledge as a factor for (not) being liable

Both courts use ‘common knowledges’ for their assessment of the existence of unlawful endangerment. What is conspicuous is how the courts attribute these circumstances to the different parties. Noteworthy is the insight that a very present likelihood of accidents occurring, as well as a high severity of the possible consequences of those accidents, seem to be able to decrease the extent to which disregard for due caution is likely. And the lesser the extent to which disregard to caution is likely, the smaller the chance of the owner being liable. Looking at other similar case law, this reasoning seems rather unique. The tendency in most case law is for owners of recreational swimming areas to be under a strict duty of care, and are often deemed liable in court. Despite this judgement later being overruled, the court of Amsterdam’s method of thinking is quite innovative and might even be used to defendants advantage in future cases.

Other factors considered (equally) important

What becomes clear from the overruling, is that whether the owner of a water is liable for personal injury can also highly depend on the circumstance that it is forbidden to swim in the particular area, as well as whether or not the owner reasonably could be aware of the presence of recreational swimmers. The importance of this latter factor was also emphasized by the court of Limburg. Furthermore, both courts ruled that part of the damages remain at the expense of the claimant, due to their own carelessness. The amount of damages remaining at own expense can vary, and depends on the circumstances of the case.

Conclusion

The duty of care for owners of recreational waters has proven to be a strict one. It does seem to matter whether or not the area has a prohibiton of swimming. Even then, the scope of the duty of care must be assessed according to the circumstances of the case. Nonetheless, the claimants own responsibility will always remain a factor in the assessment of the case.

[1] Court of Limburg, 26 October 2023, case no. ECLI:NL:RBLIM:2023:6252.
[2] For example: Court of Northern Netherlands, 14 February 2017, case no. ECLI:NL:RBNNE:2017:951; : Court of Northern Netherlands, 7 July 2022, case no. ECLI:NL:RBNHO:2022:5915.
[3] Court of Amsterdam, 31 march 2022, case no. ECLI:NL:RBAMS:2022:1755.
[4] Court of Amsterdam, 21 February 2024, case no. ECLI:NL:RBAMS:2024:1019.

Author

Diederik Hulsbergen-Ekelmans Advocaten
Diederik Hulsbergen-Ekelmans Advocaten

Diederik Hulsbergen

+31 6 51 79 39 49

Both on the pitch and in his work, Diederik Hulsbergen has a great passion for sports. As a lawyer, Diederik not only deals with various insurance law issues, but also advises and litigates in various sports law cases. He has experience in sports-related association law, employment law, liability, personal injury, contracts and disciplinary law.

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Ekelmans Advocaten in The Legal 500 EMEA 2024-ranking

Ekelmans Advocaten in The Legal 500 EMEA 2024-ranking 525 400 Ekelmans Advocaten
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The Legal 500  ranks Ekelmans Advocaten. ‘a highly competitive firm with no match regarding corporate/insurance work. The team understands the commercial and practical aspects of the insurance industry like no other.’ We thank our clients for these and other recommendations and for their trust! It inspires and encourages us to deliver our best.

Legal 500 specifically mentions Frank Schaaf, Fleur van Kersbergen, Daan Spoormans, Astrid van Noort and Jan Ekelmans as recommended and key lawyers.

Legal 500 writes:

Ekelmans Advocaten – Insurance & Corporate ‘understands the commercial and practical aspects of the insurance industry like no other’, focusing on healthcare-related insurance matters as part of a broader general liability practice that also handles D&O, professional liability and insurance fraud matters. Jan Ekelmans manages a broad spectrum of claims, ranging from medical device recalls to life insurance and aviation issues, while Astrid van Noort focuses on personal injury and income protection disputes. Professional and corporate liability fall within the practice of Frank Schaaf, while Daan Spoormans handles both insurance and corporate litigation. Fleur van Kersbergen acts for clients and their insurers who are facing professional negligence suits [..]’.

Recommendations from our clients:

‘Ekelmans team is a highly competitive firm with no match regarding corporate/insurance work. The team understands the commercial and practical aspects of the insurance industry like no other.’

‘Frank Schaaf has massive knowledge of the local and international industry, and his capacity for focusing in on the really important details makes him a valuable asset to his clients. Assisted by the magnificent associate Fleur van Kersberg, the work she delivers is pristine.’

‘Consistent quality and thorough approach to litigation, combined with an honourable style.’

‘The kindness of the people, the knowledge, their principles, their fast way of working.’

‘The team of Ekelmans is very experienced and professional. Our cooperation with several specialized lawyers of their team has always been at a high quality level. It is a pleasure to work with them. Ekelmans is a knowledge partner in several domains of our association of insurers.’

‘Very professional, reliable and cooperative.’

The Legal 500 assesses the strengths of law firms in over 150 jurisdictions. The rankings highlight the practice area teams who are providing the most cutting edge and innovative advice to corporate counsel. The Legal 500 research is based on the feedback from clients.

An overview of the Legal 500 rankings can be found on the website of Legal 500.

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The qualification of the to-follow clause in the Dutch co-insurance market

The qualification of the to-follow clause in the Dutch co-insurance market 525 400 Ekelmans Advocaten
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The Dutch insurance market has a long tradition of co-insurance, where a risk is spread among multiple insurers, each providing coverage for their own percentage. A specific aspect of co-insurance is that it often involves the use of a to-follow clause. This clause binds following insurers to the decisions of the lead insurer; e.g. on the question of whether or not a policy provides coverage. If a leader decides that a policy provides coverage, the following insurers contribute, each for their own percentage in the risk. A to-follow clause thus prevents potential coverage gaps for an insured resulting from different coverage decisions by participating insurers.

To what extent is a following insurer bound by the decisions of a lead insurer

In Dutch case law, the question arises as to what threshold should be used to assess whether a following insurer is bound by a decision of the leading insurer. Such a question often arises from disagreements between a leading insurer and one or more following insurers or between the insured and the following insurer(s).

The extent to which a following insurer is bound by the decisions of a lead insurer used to be subject to the standard of the ‘reasonably acting insurer’. However, in a court ruling dated May 4th 2022, the Amsterdam court ruled that a following insurer is bound by the decision of a leading insurer unless this is unacceptable according to the standards of ‘reasonableness and fairness’, which is a higher threshold.

The case at issue dealt with an alleged error of judgment in claim handling.

A following insurer was sued by the insured’s broker. The broker had paid damages to the insured for the amount of the following insurer’s share. The latter was held, under the to follow clause, to pay damages because the lead insurer had decided to provide coverage. However, the following insurer refused to reimburse that amount to the broker, arguing to the effect that it was not bound by the lead insurer’s coverage decision. The following insurer substantiated its position by pointing to a number of unusually large claims the insured had suffered in 2017. The insured, broker, lead insurer and surveyor must have responded unacceptably inadequately to these damages, the following insurer said. For instance, the following insurer argued that there had to have been insufficient investigation of the damages and, therefore, the lead insurer should not have granted coverage, or at least not without asking further questions. The following insurer claimed to have suffered damages as a result because, based on a to follow clause, it was obliged to follow the lead insurer in its decision to pay damages.

The court ruled that the “reasonable insurer” standard did not apply. The question was whether or not it would be unacceptable by the standards of reasonableness and fairness to bind the following insurer to the leading insurer’s coverage decision. The court thus opted for a stricter threshold than had previously been applied in case law. The reason for this is that if a leader makes an (assessment) error in claim handling and therefore wrongly proceeds to pay damages, testing against the ‘reasonably acting insurer’ standard would negate the benefits of the to-follow clause if a following insurer was allowed to evade payment in such a case. For the insured it would mean that he would have to deal with all insurers that carry his risk individually, each of whom could make their own coverage decision. For the insurers themselves, it would also mean that the efficiency advantage of the to follow clause would disappear, as each following insurer could (and therefore, in fact, should) assess the decision of the lead insurer for correctness.

As mentioned, the ‘unacceptable by standards of reasonableness and fairness’ standard is a higher threshold than that of the ‘reasonably acting insurer’. Therefore, based on this ruling, a leading insurer seems to have more freedom in assessing a claim than before. The mere fact that a leading insurer makes an error of assessment with regard to coverage is, in the court’s view, insufficient to rule that it is unacceptable by the standards of reasonableness and fairness to deem the following insurer liable to pay. That this standard provides a high threshold also follows from the examples given by the court. An example of a situation in which it is unacceptable by the standards of reasonableness and fairness to deem that a following insurer is bound by a decision of the lead insurer is, according to the court, if the insured and lead insurer were to collude fraudulently with the aim of inducing the other insurers to pay damages, or if the decision of the lead insurer was made by bribing an employee of that insurer.

Author

Jessica Roos
Jessica Roos

Jessica Roos

Jessica Roos is specialized in insurance and liability law. She holds a doctorate in insurance law, specifically in the field of coinsurance. Thanks to her previous work experience in the insurance industry, Jessica has an in-depth understanding of the processes that her clients face.

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Ekelmans Advocaten recommended in Chambers Europe 2024

Ekelmans Advocaten recommended in Chambers Europe 2024 525 400 Ekelmans Advocaten
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International lawyers guide Chambers and Partners Europe released its 2024 rankings, indicating  Ekelmans Advocaten to be one of the best Dutch Insurance law firms.  We are proud that our firm is recommended for the seventeenth consecutive year.

This year “advising on high-profile cases“ and “particular expertise in healthcare insurance matters” are mentioned as the strength of our team.

Our clients state that they appreciate the way we advise and assist them: “Ekelmans Advocaten is always available for us as a client, also for cases that need a quick response.”

We would like to thank our clients for their input throughout the research process and their continued trust in our firm and our professional’s expertise!

Chambers Europe writes:
“Ekelmans Advocaten has a long track record advising on high-profile cases. The team is noted for its particular expertise in healthcare insurance matters. The contentious side of the practice also covers professional, D&O and general liability concerning construction and property damage. The law firm further advises on reinsurance and business interruption matters, as well as regulatory issues.”

Special recommendation Jan Ekelmans:
“Jan Ekelmans is an experienced practitioner, with notable experience advising healthcare insurers. He also assists with reinsurance matters, as well as with disputes relating to D&O liability, business interruptions and fraud.”

“Jan Ekelmans is very good in court: he is very articulate and outspoken, so he can present the case in a very good manner.”

An overview of the Chambers Europe rankings can be found on the website of Chambers and Partners.

Contact

Like to know more?
Like to know more?

Like to know more?

+31 70 374 63 00

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Ekelmans Lawyers strengthens team with Taraneh Riyazi as partner Cassation & Expert Litigation

Ekelmans Lawyers strengthens team with Taraneh Riyazi as partner Cassation & Expert Litigation 525 400 Ekelmans Advocaten
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We are very pleased to announce the arrival of Taraneh Riyazi. She started as a partner at Ekelmans Advocaten on 1 January 2024. She has more than 20 years of experience as a lawyer and is skilled in cassation as well as insurance and liability law. We welcome Taraneh back, as she previously served as senior lawyer in Cassation and Insurance & Liability at our firm.

As a cassation lawyer, Taraneh specialises in conducting civil law proceedings before the Supreme Court and handles cases across the full range of civil law. She also focuses on insurance and liability law.

Thanks to her experience as a lawyer at a major Dutch insurer, she knows the insurance sector from the inside. She advises and litigates in various insurance cases, including fire damage and insurance fraud.

Taraneh is well known for her expertise and entrepreneurial attitude. Clients value her advises on litigation and cassation opportunities. She also publishes regularly in legal journals and is co-author of the Compendium of Insurance Law. Besides her work as a lawyer, Taraneh is a lecturer at various training institutes and a deputy judge at the Amsterdam Court of Appeal.

“Taraneh was previously with our firm where she had already specialised in cassation. She now returns with a wealth of experience in insurance and liability law. This experience combined with her entrepreneurial and goal-oriented attitude make Taraneh a valuable asset to our firm,” says David de Knijff, partner Cassation & Expert Litigation at Ekelmans Advocaten.

Want to read more?

For more information on Taraneh Riyazi, check out her profile on our website.

Thanks to her experience as a lawyer at a major Dutch insurer, she knows the insurance sector from the inside.

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NIS2 directive – Network and Information Security Directive 2

NIS2 directive – Network and Information Security Directive 2 525 400 Ekelmans Advocaten
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The NIS2 directive will soon come into force in the Netherlands. It is the successor to NIS Directive and focuses on risks that threaten network and information systems, such as cyber security risks. Organisations covered by the NIS2 directive will have to comply with the duty of care and notification obligations from then on. In this blog, lawyer Anne-Mieke Dumoulin-Siemens discusses what the directive entails, what it means for your organisation and what preparations your organisation can already make.

Cyber security deserves attention

Companies are facing increasing digitalisation and cyber incidents. At EU level, cybersecurity challenges are being addressed with a range of new regulations. For instance, the NIS 2 Directive has been in force for some time. The Network and Information Security Directive 2 (NIS2) aims to improve the cyber security and digital resilience of organisations in EU member states. The NIS2 Directive contains minimum requirements and must be implemented in Dutch legislation by 17 October 2024 at the latest. From that date, sectors designated in the directive must comply with the obligations in the NIS2 directive as they will then be laid down in Dutch legislation.

NIS2 directive has wide scope of application

NIS2 directive applies to a wide range of sectors, such as healthcare, transport and energy providers. Supermarkets, water management companies and digital providers should also prepare for the obligations in the NIS2 directive. The NIS2 directive includes sectors of high criticality and other critical sectors. There are 11 sectors of high criticality: energy, transport, banking, financial market infrastructure, healthcare, drinking water, waste water, digital infrastructure, ICT services management, public administration and space. In addition, the NIS2 directive has seven other critical sectors: postal and courier services, waste management, chemical industry, food industry, manufacturing industry, digital providers, research. Organisations that fall under any of these sectors must implement risk management measures and comply with cybersecurity reporting requirements.

How do you know if your organisation is covered by the NIS2 directive?

The organisation must belong to one of the sectors of high criticality or other critical sectors. In addition, the size of the organisation is important and whether the organisation plays a key role in society. If it turns out that the NIS 2 directive applies, you need to consider whether your organisation is an ‘essential’ or ‘important’ organisation. The Dutch government has prepared an online self-assessment NIS 2 Self-assessment NL (regelhulpenvoorbedrijven.nl). you may wish to use this self-assessment to determine whether the NIS 2 directive applies to your organisation.

What measures are we talking about?

In short, organisations should take appropriate technical, operational and organisational measures to improve their organisation’s cyber security and digital resilience. Organisations should identify cyber risks and adjust the security level of their network and information systems accordingly. For instance, large companies exposed to high risks should take more measures than a small business where the likelihood of an incident with high social and economic impact is small. Cyber security measures should include incident handling, back-up management, supply chain security, cyber hygiene, staff training, access policies and policies to measure the effectiveness of these measures.

What other obligations does the NIS 2 Directive impose?

Governance

The NIS 2 directive leaves the responsibility for cyber measures to the directors. The governing bodies of essential and important organisations must approve the security measures taken and oversee their implementation. Directors can be held personally liable for breaches of security obligations. Directors must undergo training to acquire sufficient knowledge to identify cyber risks and assess their consequences.

Reporting obligations/reporting obligation

Essential and important organisations must report without delay any incident that has a significant impact on the provision of its services. This could include incidents that cause or may cause serious operational disruption of services or financial losses to the organisation concerned. Consideration could also be given to incidents that cause or may cause significant material or financial damage to other (legal) persons. An initial notification must be made to the competent authorities within 24 hours, followed by an update no later than 48 hours after the initial notification. Note that reporting is also required if an incident may have significant consequences.

What preparations can organisations make in advance?

The Dutch government is in the process of transposing the NIS2 directive into Dutch law. A bill has not yet been published. At the moment, it is only clear which minimum requirements will have to be met, as these are apparent from the NIS2 directive.

Pending embedding in national legislation, the following steps could be taken:

  • Use the self-assessment NIS 2 Self-assessment NL (regelhulpenvoorbedrijven.nl) to determine whether your organisation falls under the scope of the NIS2 directive.
  • Map to which extent the board meets its governance obligations.
  • Establish the quality of existing technical, operational and organisational security measures, including monitoring mechanisms.
  • Determine whether the organisation can comply with reporting requirements and notification obligations.

Questions or advice on the NIS2 Directive and implementation?

If you need further clarification on the governance obligations or if you have questions on the reporting obligations and notification requirements, please contact Anne-Mieke Dumoulin-Siemens.

Cyber security

Your organisation has a great deal of confidential data. That is not just personal data — increasing amounts of company information are now available electronically as well. All this data is extremely valuable; if it ended up in the wrong hands, this could lead to serious commercial and reputational damage. The lawyers at our Privacy Desk will gladly examine the impact of cyber security on your business operations with you.

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Anne-Mieke Dumoulin-Siemens-Ekelmans Advocaten
Anne-Mieke Dumoulin-Siemens-Ekelmans Advocaten

Anne-Mieke Dumoulin-Siemens

+31 70 374 64 34

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A new (temporary) regime for turboliquidation

A new (temporary) regime for turboliquidation 525 400 Ekelmans Advocaten
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Turboliquidation, the process of swiftly winding up a legal entity, only exists in the Netherlands. Directors in countries such as Germany or England do not have this option. Turboliquidation is a coveted tool among ‘Dutch’ directors: as many as 36.456 turboliquidations took place in 2022. However, the landscape is about to change as the (prima facie restrictive) Temporary Turboliquidation Transparency Act is set to come into effect on 15 November 2023.

The quick and easy liquidation of a legal entity will soon be (partially) curtailed. On 14 March 2023, the Dutch Senate approved the Temporary Turboliquidation Transparency Act in response to concerns about fraud in turboliquidations during the corona pandemic. The aim of the law is to provide more transparency to creditors who are currently left in uncertainty following a turboliquidation. The law will be in effect for two years, with the option of a two-year extension, starting from 15 November 2023. With these impending changes, the question arises: Will turboliquidation continue to be an attractive option for the directors of Dutch BV or NV?

Turboliquidation, the process of swiftly winding up a legal entity, only exists in the Netherlands. Directors in countries such as Germany or England do not have this option.

How does turboliquidation currently work?

The current requirements for the turboliquidation of a company are simple. First and foremost, the company must find itself in a situation where it possesses no assets whatsoever—this means no inventory, cash, and outstanding receivables. To achieve this, directors initiate the process of “emptying” the company before proceeding with the turboliquidation. Subsequently, shareholders can pass a resolution of dissolution to officially terminate the company. Normally, in a standard liquidation, the liquidation phase then begins. However, in the case of turboliquidation, this phase is bypassed since the company has already been fully depleted of its assets. Consequently, the company ceases to exist immediately.

What changes for company directors and turboliquidating?

The fundamental requirements for turboliquidating a company remain unchanged. However, the director will now have to undertake additional actions. A mere report of the turboliquidation to the Chamber of Commerce will no longer suffice. Once the new law takes effect, directors must also submit supplementary documents and inform creditors accordingly.

These additional documents include:

  • A balance sheet and a statement of income and expenditure for the year in which the legal entity was dissolved, along with the previous financial year if, at the time of dissolution, annual accounts for that year have not yet been made public.
  • A description of the cause for the lack of benefits.
  • A detailed account of how the company’s income has been monetized and the proceeds distributed.
  • An explanation of the reasons why creditors remained wholly or partially unpaid.

Furthermore, the board is required to file financial statements for any previous financial years if they have not already been submitted. Additionally, the board must duly inform creditors about the filing of these documents with the Chamber of Commerce and inform them that the legal entity has been wound up.
The underlying objective of these obligations is to ensure prompt notification to creditors regarding the liquidation. Failure to fulfill these obligations could result in serious consequences for the board. In such instances, it would be considered an economic offense, subject to penalties that may include up to six months’ imprisonment, community service, or a fine of up to €22,500.

What is creditors are disadvantaged?

In the event that it comes to light that directors have caused harm to one or more creditors during the liquidation process, the court reserves the authority to impose an administration ban on those directors for a period of up to five years. The circumstances warranting such a ban include:

  • Failure of the directors to file the requisite documents with the Chamber of Commerce and neglecting to notify creditors of the ongoing liquidation.
  • Intentional actions taken by the directors prior to the turboliquidation that resulted in prejudice to one or more creditors.
  • Personal culpability of the directors for previous bankruptcy or turboliquidation occurrences, having been involved in such situations twice before.

The turboliquidation remains a useful tool despite the new requirements

The turboliquidation remains a valuable tool despite the introduction of new requirements. While the new law introduces additional obligations, turboliquidation still offers a convenient means to wind up or restructure legal entities. Shareholders should not be deterred by these new requirements, as the legislation primarily targets fraudulent activities and not those shareholders seeking a legitimate and efficient liquidation process.

Questions?

If your company has a Dutch branch and you are considering restructuring or dissolution, turboliquidation could still be a viable option for you. Should you require more information on turboliquidation or have any other questions related to corporate law, I invite you to reach out for a no-obligation consultation.

Author

Pim Lieffering
Pim Lieffering

Pim Lieffering

+31 6 82 62 63 03

Pim Lieffering is a corporate lawyer. He deals with all aspects of corporate law, from drafting and litigating on commercial contracts to advising on mergers and acquisitions. When Pim is asked a question, he always looks at the bigger picture. Because he looks just that little bit further, he regularly surprises his clients with creative solutions.

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‘Duplicate Claim Detector (DCD)’ launched by Innovation Platform Verbond van Verzekeraars

‘Duplicate Claim Detector (DCD)’ launched by Innovation Platform Verbond van Verzekeraars 722 550 Ekelmans Advocaten
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Insurance / Privacy / Privacy Desk /

Astrid van Noort was present as a speaker at the launch of the ‘Duplicate Claim Detector (DCD)’ by the Innovation Platform of Verbond van Verzekeraars.

Ekelmans Advocaten advised Verbond van Verzekeraars in the development of this Duplicate Claim Detector on a secure and responsible method of data exchange between insurers within the framework of the AVG.

With the Duplicate Claim Detector, an important tool has been developed that helps insurers prevent the payment of duplicate claims and identify potential fraud. Thereby, insurer integrity and risk management are significantly promoted.

Confidential data in good hands

Your organisation processes personal data on a large scale. You need that personal data for your core processes but you also wish to comply with all the rules and protect privacy. These two goals are not always easy to reconcile. Our lawyers can help you here.

When developing new products or services, creative solutions may sometimes be required in order to remain compliant with privacy legislation. The Ekelmans Advocaten Privacy Desk helps you use personal data optimally for commercial purposes while still guaranteeing the privacy of your customers.

Lees meer over onze Privacy Desk en het team van specialisten

Auteur

Astrid van Noort
Astrid van Noort

Astrid van Noort

+31 70 374 64 21

Astrid van Noort is partner Insurance & Liability and strategic AVG expert for major insurers. She devises practical, workable and commercially attractive solutions to complex problems. She also specialises in personal injury, income and sickness absence insurance and health insurance.

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