HANDBOEK KUNSTRECHT – Een juridische schets van het kunstenlandschap
Anna Gibello, Michel Segers and Victor Rouard, with the help of Camille Van Der Loos, had the opportunity to contribute to a book entitled “Handboek Kunsterecht”, published by Intersentia under the direction of Mr. Oliver Lenaerts.
The chapter written by Anna Gibello and Victor Rouard deals with the delicate issue of the international circulation of works of art and cultural goods, which is governed by a patchwork of regulations that attempt to reconcile, on the one hand, the protection of cultural heritage and, on the other hand, the free circulation of goods.
The circulation of cultural goods is regulated at the international, European, federal, community and regional levels, resulting in a complex legal regime whose lack of harmonization makes it necessary to analyze each situation individually, according to all its particularities. Their contribution constitutes an overview of the main questions that could be faced by an actor of the art market, a public authority, or even a private individual wishing to export or import a cultural object, to claim ownership of it, or to acquire a cultural object whose origin is uncertain.
The chapter written by Michel Segers focuses on the existing legal relationships between auction houses, the contributor and the buyer, paying particular attention to the question of the role and validity of the exemption clauses that may be involved.
Due to their specific characteristics, which are now superimposed by the development of online platforms, these relationships may be subject to distinct legal regimes (consumer protection, rules specific to B2B relationships, unfair commercial practices, etc.), requiring all market players to exercise particular caution during these transactions. In his contribution, Michel Segers highlights the main aspects that must be taken into consideration by the contributor, the buyer, or the auction house in order for the sale to take place under adequate legal conditions.
More information and ordering of the book on : https://intersentia.com/en/handboek-kunstrecht.html?SID=g1oriais0ksc5ptcls2eusumv7&___from_store=nl
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Prolongation of the law establishing a simplified judicial re-organization procedure
Anticipating numerous applications for judicial reorganization proceedings (JRPs), by companies affected by the Covid-19 economic crisis, the legislator decided to modify some of the rules in order to make them more flexible and effective, by adopting the Law of 21 March 2021 (“L.21Mar21”).
The Ministry of Justice has recently indicated that it intends to extend the duration of this law, which gives us the opportunity to review and comment on several improvements in favour of the continuity of struggling companies.
1. Immediate access to the JRP pursuant to a reduction in formalities.
Certain documents that a debtor, requesting the opening of a JRP, is required to attach to its application may be filed at a later date, and at the very latest two days before the hearing of the application.
The debtor will therefore be able to postpone submission of the documents relating to: its current accounting situation, the budget containing the estimate of income and expenditure for the duration of the requested suspension of payments, the list of deferred creditors, the statement of the measures proposed to re-establish the viability of its business or the report showing that it has properly fulfilled its obligations to inform and consult the employees or their representatives.
On the other hand, it will still be required to attach to its application the remaining information and documents required by Article XX.41 §2 of the Code of Economic Law (CEL), namely: a statement of the circumstances on which its application is based, the objectives of opening the JRP, the electronic address at which it can be contacted, and the last two annual accounts that should have been filed in accordance with the articles of association, as well as the annual accounts for the last financial year (which may not have been filed yet), and (where applicable), a copy of the seizure orders and writs of attachment of movable and immovable property, as recorded in the central file of seizure notices (“Fichier central des avis de saisie”) abbreviated as the FCA.
Again, to counter the excessive formalism imposed by the previous wording of the law and the obstacle for SMEs seeking access to JRPs, the L.21Mar21 also states that omission of the annexes, that are to be attached to the application, will no longer sanctionable by inadmissibility.
Even if it is commendable to allow companies in difficulty rapid access to JRPs, is it not also essential to have prior access to accounting data and the assistance of a professional accountant, in order to assess the appropriateness and the chances of success of any restructuring measures, whether before or during the JRP? Unfortunately, it cannot be excluded that this new flexibility will lead to problems of abuse..
2. Preparing for reorganization away from the spotlight.
In order to avoid the harmful consequences that publication of the initiation of judicial reorganization proceedings may entail, the legislator has introduced a second amendment, namely the possibility of making use of a confidential preparatory phase with a view to reaching an amicable or a collective agreement, following the example of the “pre-pack” procedures, which are widespread in Anglo-Saxon legal systems.
During this phase, new article XX.39/1 of the CEL (inserted by article 6 of L.21Mar21) provides that a judicial representative will be appointed to facilitate the conclusion, in complete confidentiality, of an agreement between the debtor and its creditors, so that the former can benefit from favorable payment conditions and thus mitigate its situation. During this phase, in order for the negotiations to be carried out, the judicial representative may apply to the President of the Court to request terms and deadlines and to delay, for a maximum period of four months, any proceedings that may be initiated by the creditors.
Since any arrangement will not be published until after it has been concluded, this phase is particularly useful for debtors who fear that too hasty a publication of their situation could damage their reputation or may undermine the willingness of certain commercial partners to cooperate.
It should be recalled that article XX.36 of the CEL already offered debtors, prior to the commencement of a JRP, the possibility of appointing a company mediator to help facilitate a future JRP, irrespective of the mechanism used (amicable agreement, collective agreement or reorganisation under court supervision). By virtue of his experience and authority, the company mediator helps the debtor to restore any possible imbalance that the latter may experience in its confidential negotiations with certain major creditors, in order to reach negotiated agreements. The use of the new article XX.39/1 will allow the debtor – this time assisted by a judicial representative – to continue the work of the company mediator, by offering the possibility to obtain, in the preparatory and confidential phase, the suspension of one or more claims.
In practice, it appears that few debtors have actually made use of the ‘pre-pack’ procedure. Perhaps this is because distressed debtors are more interested in obtaining immediate protection against all creditors under Article XX.44 of the CEL after filing of the JRP application. During the article XX.39/1 preparatory phase, the debtor will not only have to wait for a certain number of days before the judicial representative is appointed by the court, but will also have to wait for the representative to take the initiative to request relief from the court, with respect to certain individual creditors. In the meantime, certain (other) creditors may pursue enforcement measures, such as seizures of movable property or bank assets, thereby definitively obstructing the debtor’s ability to seek a compromise.
3. Debt relief is no longer taxed.
Finally, a third change concerns the tax benefits for collective agreements, which are extended to voluntary arrangements (“accords amiables”). Whereas the tax authorities previously considered that debt write-offs resulting from a voluntary arrangement generated a taxable profit, in proportion to the reduction obtained, Article 48 of the 1992 Income Tax Code (CIR 92) now provides that write-offs and provisions resulting from a voluntary arrangement will be exempt, in the same way as those obtained via a collective agreement. (This exemption will apply during the relevant taxable periods until the voluntary arrangement has been fully implemented.)
4. Conclusion.
In reality, it is too early to provide an in-depth assessment of what effect the measures introduced by the Law of 21 March will have, but it is very likely that those measures will be extended, at the initiative of the Council of Ministers, until 16 July 2022..
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Google’s failure to respect the « right to be forgotten » results in €600,000 fine
In its Decision 37/2020 of 14 July 2020 X c/Google (Decision) the Belgian Data Protection Authority (APD/GBA) fined Google Belgium 600,000 euros for failing to respect a citizen’s right to have certain harmful information delisted. (The right is sometimes referred to as the ‘right to be forgotten’). This is the highest fine imposed by the APD/GBA to date. The APD/GBA also ordered delisting of the content in the European Economic Area (EU + Iceland, Liechtenstein and Norway) – but it stopped short of ordering the worldwide ban that the Plaintiff (“X”) had called for.
Facts
X brought a complaint against Google Belgium SA (GB) complaining that GB had refused to deregister certain out of date articles appearing on web-pages available from Google Search (Search) which X alleged were damaging to X’s reputation. X has a prominent position in public life. The case therefore meant that the APD/GBA Litigation Chamber had to assess the correct balance between X’s fundamental rights to protection for personal data (Article 7 and 8 EU Charter of Fundamental Rights {EUCFR}) against the public interest right to freedom of information, (Article 11 EUCFR).
The decision has five operative parts each of which is summarised in the headings below.
- Jurisdiction of the APD/GBA; and
- Is Google Belgium a data controller for the purpose of the complaint?
The Litigation Chamber had asked to be informed about the roles of the different entities in the Google Group (GB, Google Ireland Ltd. and Google LLC, established in California (hereafter together ‘Google’). GB argued that the complaint was unfounded because the data controller was Google LLC in California.
That argument should be viewed in the light of the well-known May 2014 judgment of the CJEU in Costeja (Case C-131/12) which found that Google’s national subsidiaries in the EU are establishments of the company and that processing for Search is carried out in the context of the activities of those establishments – which makes them subject to EU data protection rules.
- Although the APD/GBA accepted that Google LLC was the data controller it held that, because the activities of Google Belgium and Google LLC are inextricably linked, the Belgian subsidiary should be considered to be an establishment of the data controller within the EU, subject to compliance with EU data-protection rules and against whom X’s complaint could properly be brought. The territorial application of a request for delisting
X requested a worldwide delisting. The Litigation Chamber had some doubts that a worldwide delisting might be unenforceable. On the other hand it consulted informally with its counterpart supervisory authorities on an EEA-wide delisting to ensure that they considered such an order would not disproportionately infringe the freedom of information of Internet users in other Member States. With one exception the other authorities supported such a course of action.
- X’s specific requests for delisting
X made two categories of specific de-listing requests, first concerning political affiliation and second regarding an allegation of harassment that had been declared unfounded more than ten years ago. Google decided not to de-list any of the pages in question. The APD/GBA found that maintenance of the pages concerning X’s political affiliation was in the public interest in view of X’s role in public life. However, concerning the harassment allegations, APD/GBA found the request for delisting was well-founded and that Google’s refusal was negligent and constituted a serious breach because it had clear evidence that the facts alleged had been dismissed.
- Infractions of the GDPR and the penalties applied
The €600,000 fine imposed took account of the lack of transparency in the delisting form that Google provided, the lack of information provided to X to justify the refusal to delist as well as the negligent refusal to delist the historical allegations of harassment. Google was also ordered to change its de-listing request forms so as to clarify which entity or entities are the data controller(s) responsible for the data processing.
Conclusions
In the APD/GBA Press Release Hielke Hijmans, Chairman of the APD/GBA Litigation Chamber, is reported to have commented: (our informal translation): ‘This decision is historic for the protection of personal data in Belgium, not only because of the amount of the penalty, but also because it ensures that full and effective protection of the citizen is supported in cases related to large international groups’ (…) whose structure is very complex. The Decision can be appealed within thirty days.
Practical takeaways from the case include that:
- Data controllers should ensure their privacy policies and their answers to data subject requests are precise and transparent.
- Data subjects have an interest in bringing their complaints before the competent data protection authorities (DPA) as the costs are likely to be less, the DPA has its own investigative powers and the procedure is likely to be quicker.
- The range of sanctions available to a DPA is important and they are being used more actively as experience of implementing GDPR builds up.
- The case confirms the Costeja jurisprudence that, as regards GDPR enforcement, where the activities of an EU subsidiary are inextricably linked with those of a data controller outside the EU a GDPR complaint may be legitimately brought against the EU subsidiary and the competent DPA will have jurisdiction to decide the complaint.
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