NETHERLANDS Law and Practice Contributed by: Jan-Willem van Rooij, Anne Brugmans and Jordy Kusters, Loyens & Loeff
own works council (if any) and the works council of the target company (if any). The works council’s right of advice relates to a “pro- posed” decision. It therefore must be ensured that the works council is requested for its advice in such time that it can still significantly influence the contemplated decision. The advice is not legally binding. Regarding the company proceeding against negative advice of the works council, it must observe a one-month wait- ing period. During this time, the works council may challenge the decision before the Enterprise Chamber. Although there is no statutory obligation to publish or disclose the works council’s advice, the works council is authorised to publish its advice if it does not con- tain any sensitive business information that cannot be disclosed. SER Merger Code In the event of a transaction that involves at least one enterprise or a group of enterprises that (i) is registered in the Netherlands, and (ii) regularly has 50 employees or more, the SER Merger Code 2015 may apply to the Transaction. Should the SER Merger Code 2015 be applicable, then the trade unions concerned (if any), must be pro- vided with information and must be given the opportu- nity to be consulted in a meeting prior to reaching an agreement on the contemplated transaction, in such manner that the views of the trade unions can be of meaningful influence on the transaction (the authors note that in practice the trade unions rarely make use of this opportunity). In general, this means that the notification is done at the same time as the works council is consulted. The works council must be given the opportunity to take the opinion of the trade unions into account prior to having to render advice. Together with the trade unions, the SER (the Dutch Social and Economic Council) must be notified, but that notification is merely a formality. It should be noted that the SER Merger Code 2015 does not have force of law. However, the relevant trade union(s) may file a complaint with the Dispute Committee of the SER in case of non-compliance with
the SER Merger Code 2015. If the Dispute Committee rules that the complaint is justified (ie, that the SER Merger Code 2015 was not observed correctly), the Dispute Committee may issue either a public state- ment concerning the non-observance of the SER Merger Code 2015 or a reprimand. Transfer of Undertaking In case of an asset deal and depending on all facts and circumstances, a transaction may qualify as a transfer of (part of an) undertaking ( overgang van onderneming ), as a consequence of which all employ- ees who are active in (or assigned to) the undertaking will transfer from the seller to the purchaser by opera- tion of law. An important aspect in assessing whether or not there is a transfer of undertaking is if the main assets of the undertaking are transferred. What is seen as the most important asset will largely depend on the nature of the business of the seller (ie, labour intensive or asset reliant/capital intensive). 5.7 Currency Control/Central Bank Approval Under Dutch law, no statutory foreign currency restric- tions or requirements apply for payments to be made by a Dutch entity, ie, a Dutch entity can freely pay its debts to a creditor outside the Netherlands either in euros or in another currency. For sensitive industries, approval, consent or notifi- cation of the competent regulatory authorities may be required dependent on the specifics of the M&A transaction. 6. Recent Legal Developments 6.1 Significant Court Decisions or Legal Developments Grid Access Rules and Grid Fee Methodologies The ACM has been very active over the last few years in adopting new grid codes that apply to existing and new energy projects, such as grid connection time- lines, priority schemes, use-it-or-lose-it rules, manda- tory congestion management participation, alternative transport rights and a continuously changing grid fee structure. These rules have material impact on exist- ing and future projects and require a close study to assess business case assumptions and risks in any
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