26 July 2022
New remuneration rules for financial enterprises in the Netherlands
On 1 January 2023, the Financial Markets Supervision Act will change, introducing a new scheme on remuneration at financial enterprises (such as banks and insurers). The new scheme includes a five-year statutory retention period for shares and other financial instruments that managing directors or employees receive as part of their fixed pay. In their remuneration policies, financial enterprises will also have to account for the relationship between the remuneration of their directors and employees and their social function. The new legislation includes a transitional regime. We describe the key features of the new law below.25 July 2022
EU foreign subsidy control regime on the horizon: co-legislatures reach agreement
The European Parliament and Council of the EU have agreed on a draft text for the upcoming Foreign Subsidies Regulation (FSR). The FSR is intended to fix a regulatory asymmetry: state aid granted by EU member states is subject to strict checks, but there is no equivalent scrutiny of financial contributions by third countries to companies active in the EU. The FSR will make M&A deals or public procurement bids fuelled by foreign financial contributions notifiable to the European Commission if they meet certain thresholds. Notified M&A deals will remain suspended, and procurement contracts cannot be awarded, until there is a clearance decision from the Commission. Even when the notification thresholds are not met, the Commission might "call in" M&A deals before their implementation or bids before the award of the public contract. Under a general market investigation power, the Commission may also review implemented concentrations or awarded public contracts. In practice, this means dealmakers will have to navigate a variety of regimes and jurisdictions as an M&A deal could be subject to national or EU merger control, national security/foreign direct investment (FDI) control, and now also, EU foreign subsidy control. 25 July 2022
Trademark holders are "producers" for product liability purposes, according to CJEU
The Court of Justice of the European Union (CJEU) has answered questions about the Product Liability Directive and clarified what "producer" means in the directive. According to the CJEU, this is any person who has affixed, or authorised the affixing of, its name, trademark or other distinctive sign to a product. Specifically, the CJEU dismisses the argument that any further criteria are required except for the affixing of the name, trademark or other distinctive sign to a product. Consequently, a strict liability regime applies to trademark holders when it comes to product liability. Trademark holders should be mindful of the potential liability risks implied by this ruling in their day-to-day business.