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In practice, we find that not yet every business owner has their terms of employment arrangements and everything that comes with HR in order. What have the latest changes been and what changes are still to come?

What should you already have in place according to the law?

• Have you already updated all employment contract models to the latest legislation? This should mean that after 1 August 2022, you will have updated all models to the information obligations that follow from the Transparent and Predictable Terms of Employment Act;
• • Study cost arrangements have been adjusted following the Transparent and Predictable Terms of Employment Act. It is no longer possible to simply agree a reimbursement arrangement of study costs with the employee. Take another look at those arrangements;
• A mandatory whistleblower scheme applies to at least 50 employees as of 23 December 2023. Note that temporary workers, trainees and volunteers also count in that ’50 employees’, provided they receive compensation for their work. As of 18 February 2023, this obligation already applied to employers with at least 250 employees;
• Do your employees receive minimum wages? If so, those wages were increased and converted into statutory minimum hourly wages from 1 January 2024. Under previous legislation, it was found that in practice an employee working 40 hours a week had a lower minimum hourly wage than the employee working 36 hours a week. This has now been equalised and wages indexed by 3.75% from 1 January 2024;
• The maximum untaxed travel allowance in 2024 is €0.23 per kilometre and the untaxed home working allowance in 2024 is €2.35 per day;
• If you have an employee who is unfit for work for more than 6 weeks, from 1 July 2023 the employee must also give his/her views in the plan of approach and its (first-year) evaluations and adjustments. A worker entitled to a state pension no longer has to be paid for 13 weeks but 6 weeks in case of illness since 1 July 2023;
• Children under 16 are no longer allowed to work as flash delivery drivers since last November. Child labour rules have also been tightened further. So pay attention to that;
• The entry age for pension accrual has been lowered from 21 to 18 with the advent of the new Future Pensions Act. Has this already been communicated to your young employees who were not yet covered by a pension scheme due to their age?

What’s coming up in 2024? 

• The mobility CO2 registration requirement will apply from 1 July 2024 to employers with more than 100 employees. Here, seconded and temporary workers do not count. In practice, this means that all kilometres, broken down by commuting and business, must be registered by means of transport (car, public transport, bicycle, scooter, etc.) and fuel type.
• There will be new legislation that should provide more clarity for self-employed workers and employers. This legislation will be important in determining whether someone is a self-employed person or a salaried employee. Following the Deliveroo ruling on 24 March 2023, the Tax Office has already withdrawn model agreements based on free substitution from 1 January 2024. This is because the Supreme Court has said that free replacement can indeed constitute an employment contract. Are you still using these model agreements? If so, adjust them as soon as possible. Also keep a close eye on whether the freelancer actually performs the work independently and without direction and supervision to prevent the agreement between you from unintentionally qualifying as an employment contract or pseudo self-employment. In doubt? Then get in touch or check out our previous blogs.
• The laws and regulations on child labour would not currently adequately accommodate new forms of work by children, such as vlogging and influencing. These regulations are being modernised, clarified and tightened, with the starting point being child protection, while also looking at the positive aspects of work for children.
• Employers with at least 10 employees may soon be required to appoint a confidential advisor. The bill is before the Senate. In practice, we find that judges also ask about this in (rising) undesirable behaviour cases. We therefore recommend – regardless of the date of entry into force of this law – appointing an external confidential advisor now;
• All employers will soon have to have a working method, in which the employer states how it handles recruitment and prevents prohibited discrimination (discrimination). Employers with more than 25 employees must also put the operating procedure in writing. The Inspectorate will have the power to carry out inspections and impose fines. The bill is before the Senate.

Questions about these changes? Or do you need help adapting or drafting model agreements and regulations? If so, please contact Dennis Oud, Elke Hofman or Tessa Sipkema. 

A few months ago, a blog was devoted to the participation procedure under the laws and regulations that applied until 1 January 2024. Under this system of law, there was an obligation of effort, but (all) wishes of local residents did not have to be met. This blog will discuss participation under the Environment Act.

First, a brief recap of the concept of participation. Participation means that the government or initiators who want to realise something in the physical environment must actively involve citizens, businesses, civil society organisations and administrative bodies in the preparation of the project. In this way, the parties involved in the participation can share their wishes and concerns already in the preparation phase, so that the initiator or the government can possibly take them into account.

Participation by public authorities

The participation procedure for project decisions differs from the participation procedure described in the Environment Decree. Therefore, this blog does not cover project decision participation. In short, project decisions are used for complex projects with a public interest, such as building a motorway or reinforcing a primary flood defence system.

For public authorities and initiators, regulations regarding participation are spread across the Environment Decree, the Environment Act and the Environment Regulation.  The Omgevingsbesluit stipulates that, when preparing the omgevingsplan, regulations, omgevingsvisies and programmes, governments must indicate “how citizens, businesses, civil society organisations and administrative bodies have been involved in the preparation and what the results are. In addition, (decentralised) authorities must indicate how they have included applicable participation policies in the participation procedure.

As you may already notice, governments are only obliged to carry out participation. However, they are not obliged to implement the results of the participation procedure in such a way that all wishes expressed during this procedure are actually realised in the environmental plan, regulations, environmental visions and programmes. Thus, there is no so-called obligation of result, but there is an obligation of justification. Governments must indicate how they have included citizens, businesses, civil society organisations and administrative bodies in the preparations and what the results are.

Last year, we wrote about the landmark Deliveroo judgment and the consequences the ruling has for self-employed and other workers. That the ruling has truly far-reaching consequences is shown by the following case.

Recently, the court had to answer the question whether depot owners of DPG Media (NRC and Het Parool) have a contract of assignment or an employment contract. DPG Media uses depot holders to distribute newspapers. In 2020, DPG Media transferred the distribution of its newspapers to Mediahuis. Mediahuis, in turn, entered into agreements with all the depot holders, so the depot holders were effectively in charge of distributing the newspaper.

A year later, as Mediahuis had terminated a depot holder’s agreement, this man went to the subdistrict court asking whether he now had a contract of assignment or an employment contract. The subdistrict court applied the Deliveroo judgment and indeed came to a contract of employment. Both parties appealed from this ruling. ⚖

The Court of Appeal also qualified the agreement as an employment contract and came to that conclusion based on the Deliveroo judgment. According to the Court, there is pay, labour and a relationship of authority between the parties. Mediahuis had direct influence over the depot holder by arranging administrative matters for him and Mediahuis also instructed the depot holder on several points that the depot holder had to follow. Also, the depot holder could not in fact be replaced, he also had no clients other than Mediahuis and was not at financial risk. In fact, the custodian was not an entrepreneur, but fully embedded in the organisation of Mediahuis.

What is interesting is that the tax authorities and the UWV saw the construction as merely “fictitious employment” and not an employment contract. Nevertheless, the court ruled that under civil law, there was still an employment contract. Therefore, if you as a client enter into an agreement with a contractor, you should really check whether it is not secretly an employment contract after all, regardless of what the tax authorities or the UWV think. If you are in doubt contact us.

Read the ruling here!

Natural fires are a growing risk in the Netherlands due to increasingly long periods of drought. With the high population density and the fact that many people recreate in natural areas, the risks of a hefty fire are increasing. In this blog, we look at the confluence between nature conservation law on the one hand and the need to be able to take measures in natural areas to prevent wildfires on the other.

A well-known term in nature law is ‘Natura2000’. A term that refers to specially designated nature reserves that enjoy a high degree of protection. In the press, one hears mostly about restrictions imposed by the protection of these areas. At the same time, protecting the (limited) nature that is still there is also of great importance.

Nature protection legislation comes from Europe. Natura2000 areas are protected by the rules in the Habitats Directive. Under that directive, member states must designate special protection areas. These are zones in which certain measures are applied that are necessary to maintain or restore natural habitats and/or populations of species to a favourable conservation status. The protection of Natura2000 sites is mainly regulated by Article 6 of the Habitats Directive.

Plans or projects that are not directly related to the management of the site, or are not required for that purpose, can in principle only go ahead if a so-called ‘appropriate assessment’ is made of the impact of the plan or project on the site. That appropriate assessment takes into account the conservation objectives of that specific site. Licensing authorities may therefore only issue a permit if it is certain that the project or plan will not adversely affect the natural features of the site concerned.

However, some projects or plans can still go ahead. This is the case if there are imperative reasons of overriding public interest and there are no alternative solutions. In such a case, compensatory measures will have to be taken to ensure that the Natura 2000 site is preserved (overall coherence is maintained).

But what if such an area is also subject to rules in the context of, for example, protection against forest fires? Are projects relating to forest fire management measures also ‘projects’ requiring an appropriate assessment?

On this subject, the European Court of Justice recently issued a judgment in a case that played out in Latvia. A private Latvian nature management organisation and local Latvian authorities were knocked back by the Latvian Environmental Protection Authority. What exactly was at stake?

An inspection by the Latvian Nature Protection Authority found that about 17 kilometres of trees had been felled along nature roads in a nature reserve. This was a nature reserve designated as a special protection zone, or Natura2000 area. The regional government had previously agreed to the felling and it had been carried out by a commercial Latvian company specialising in nature management.

However, the nature conservation authority found that felling (and removal of the felled) should not be carried out lightly and ordered that the negative impact of the activities be mitigated. The felled pines had to be left in the forests (to serve as suitable material for animals living in the forests) and even additional material had to be brought in so that the amount of dead wood would be sufficient for its and animals living in it. But then again, dead wood also burns nicely, so the local authority was less keen on that.

Legally, there were five questions at play (in less legal language):

1. If one carries out activities in a Natura 2000 forest area that are carried out to ensure maintenance of installations present there to protect against forest fires, is that also a ‘project’ under Article 6 of the Habitats Directive? This could assume that the activities do comply with national fire prevention rules.
2. And should those activities then be considered a project “not directly related to or necessary for the management of the site”? And that those activities then do not require an appropriate assessment?
3. Or does the Habitats Directive do impose an obligation to carry out an assessment for these projects, even if their implementation is required by national fire prevention rules?
4. And may the activities be continued and completed before an appropriate assessment has taken place?
5. And if those activities have been carried out without an appropriate assessment, are the competent authorities obliged to take measures to prevent significant effects and to require reparation for the damage caused?

The Court considers that although the Habitats Directive does not define ‘project’, the concept of project in the Environmental Impact Assessment Directive can be used for that purpose. Works or interventions which alter the physical condition of the site concerned are a ‘project’ in that sense. Such is the case of felling trees for the maintenance of nature roads in a Natura2000 nature reserve. So there is a ‘project’ within the meaning of Article 6 of the Habitats Directive.

The Court then considers that while it may be possible for forest fire management measures to be allowed without an appropriate assessment, they must then also be ‘necessary’ to maintain protected habitats or species at a favourable conservation status. Or to restore those habitats or species. And those measures must then be appropriate for the area in question and suitable for achieving those nature-species conservation objectives.

So one will have to consider whether the logging operations will affect the conservation objectives and make a certain risk analysis. In order to do that, an appropriate assessment will almost always have to be made anyway. The starting point is therefore that an appropriate assessment must be made unless the measures are so directly related that this can be bypassed. Even if the fire prevention measures are prescribed by other legal rules, an appropriate assessment is still required, as the assessment can determine which measures are most appropriate for that type of area.

So does that mean that if there is a negative impact on the conservation area, no fire prevention measures are possible? It does not. Even if the assessment would show that there are negative impacts and no alternatives, the Habitats Directive still allows for fire prevention measures. If sufficient compensatory measures are taken, such measures can be considered to follow from an overriding reason of overriding public interest.

In this case, the Court also ruled that the works could not be continued or completed before an appropriate assessment of their impact on the site. This may be different again if the area’s own nature management plans include certain fire protection maintenance. Such maintenance must then, of course, be necessary to maintain or restore protected habitats or species to a favourable conservation status.

Finally, the Court considers that it does not follow from Article 6 of the Habitats Directive that private individuals (in this case, the Latvian nature management company) who carried out the works would have to pay compensation for the damage or repair the damage. Indeed, the directive article is addressed to Member States (and associated competent authorities) and thus does not impose obligations on private individuals.

Returning to the beginning of this blog: Nature conservation rules and fire prevention rules can therefore overlap and affect the implementation of fire prevention measures within nature reserves. Therefore, to ensure that the necessary fire prevention measures can be implemented in a timely manner, an appropriate assessment should be carried out. This would seem to be the least risky path whereby, on the one hand, the conservation and restoration of nature is ensured as much as possible and, on the other hand, adequate anticipation of the increasingly frequent wildfires can be achieved.

You can read the European Court of Justice ruling here.

Do you have questions about nature conservation law? If so, please contact us!

On 1 January 2024, the new Environment Act came into force. This act will house many of the rules on the ‘physical living environment’. The systematics of the Environment Act can be quite difficult. Things have changed and new case law will emerge. In the coming period, we will follow this case law in the form of blogs, but first we will discuss the systematics of the Environment Act. We start with this blog, in which we address some general points of the Environment Act, being the reason for introducing the Environment Act, the goals of the Environment Act and the scope of the law.

Reason

Before the turn of the year, the rules on physical living environment were scattered among various laws and regulations. These laws and regulations were not designed as a system, but this has developed over the years. This sometimes made joint application of the rules very difficult. Consequently, this was one of the main reasons for the systemic review of environmental law.

Under the Environment Act – this is the idea – a clearer system will be used, making the application of laws and rules easier.

Scope

The core of the new environmental law system is formed by the Environment Act, the Quality of the Living Environment Decree, the Activities in the Living Environment Decree, the Building Works in the Living Environment Decree, the Environment Decree and the Environment Regulation.

Chapter 1 of the Environment Act regulates the scope. For this purpose, two elements are important:

• the physical living environment; and
• activities that have or may have an impact on the physical living environment.

 

What exactly can be understood as ‘the physical living environment’ is not fully defined. However, Article 1.2(2) of the Environment Act does contain a number of examples of components that are in any case part of the physical living environment. For instance, the physical living environment includes at least buildings, infrastructure, water systems, water, soil, air, landscapes, nature, cultural heritage and world heritage. The physical living environment thus includes both the natural environment and elements created by humans. Examples include buildings and roads.

The concept of ‘activities that have or may have an impact on the physical living environment’ is also not specified. The only requirement mentioned is that the activity has (potential) adverse effects on the physical living environment.

All in all, the scope is quite broad and not very defined. In practice, these concepts will most likely be further crystallised in case law.

Goals

The environmental law system review has four improvement goals:

• Improve and speed up decision-making on projects in the physical living environment.
• Improve the room for administrative deliberation by facilitating an active and flexible approach to achieving goals for the physical living environment.
• Increase the clarity, predictability and ease of use of environmental law.
• Achieve a coherent approach to the physical living environment in policy, decision-making and regulation.

 

Because the Environment Act and its regulations are, all in all, quite complex and extensive, the question is whether these goals will be achieved.

In addition, Article 1.3 of the Environment Act mentions social goals:

• ‘To achieve and maintain a safe and physical living environment and good environmental quality, also because of the intrinsic value of nature;
• Effectively managing, using and developing societal needs.’

 

Achieving and maintaining a safe and physical living environment and good environmental quality refers to the importance of safeguarding the quality of the physical living environment. s such, this refers specifically to ‘protecting’ the physical living environment. This is because the Environment Act aims, among other things, to protect health and the environment and ensure the safety of the physical environment.

Managing, using and developing the physical environment to fulfil social needs refers to the fact that the physical environment can also be used by people for social tasks. Think of tasks in industry, agriculture or housing. Management, for example, refers to the management of dykes. Use, for instance, involves abstracting water. Developing looks at building structures, for instance. All this has to be done as effectively and efficiently as possible, because the available space for use has to be divided among various social needs.

Conclusion

In short, the systematics of physical environment legislation have changed considerably. The purpose of this change is to facilitate the application of the legislation. However, the question is whether this is actually the case in practice. In the end, the Environment Act has once again become complex. The first signs are that it is not too bad in certain respects, but the manageability of the rules in particular is difficult. There are a huge number of references to other rules, which themselves refer to other rules. It is therefore far from certain that the improvement targets will be met. here is a significant chance that citizens and businesses will lose sight of the forest for the trees and be forced to seek specialised assistance.

How difficult or easy the application of the Environment Act will ultimately be, practice will tell. In subsequent blogs, we will elaborate on developments in case law concerning the Environment Act.

If you are experiencing difficulty in applying the Environment Act or are curious about what the coming into force of the Environment Act means for your plot or your company, please contact Gerard van der Wende, Petra Lindhout or Fleur Huisman.

Fleur and Petra Sworn in as Solicitors!

After years of hard studying and gaining practical experience at our firm, our colleague Fleur Huisman was sworn in as a solicitor at the Rotterdam court last Friday! ⚖️

But there is more good news, as after working at The Hague University of Applied Sciences for 6.5 years, our new colleague Petra Lindhout has dusted off her gown and was also re-sworn in as a solicitor at the Rotterdam court! ⚖️

In the presence of family and several colleagues, this was a truly wonderful and special moment for both of them.

Together with Gerard van der Wende, they now form the "Environmental Law" team.

Our already strong offering in various legal areas is now even more robust with these added specialisations. This means that for clients in sectors such as construction, horticulture, recycling, waste processing, and water boards, we can provide even more targeted support for the expansion or modification of their activities.

If you have any questions about Environmental Law, please contact our Environmental Law specialists.