COVID-19 – IP Offices take measures to face the pandemic – Update 7 July

Update 7 July 2020  |  The COVID-19 pandemic has been progressing worldwide. In an effort to control its expansion, public authorities have taken restrictive measures that impact both people and companies on their territory. In this context, IP Offices have adopted decisions to secure their users’ rights and the safety of their staff. Here are the key takeaways from these recent decisions.

I.   COVID-19 MEASURES TAKEN BY INTERNATIONAL AND REGIONAL IP OFFICES

This section focuses on the main International and Regional IP Offices in Europe, namely the World Intellectual Property Office (WIPO), the European Patent Office (EPO), the European Union Intellectual Property Office (EUIPO) and the Benelux Office for Intellectual Property (BOIP).

Measures taken by the WIPO

1. All time limits under the Madrid System that concern the IP Office of a Contracting Party that is closed due to the COVID-19 pandemic are automatically extended to the first subsequent day on which that Office reopens.

2. Holders and applicants who have failed to meet a time limit may request the WIPO to continue processing the international application, subsequent designation, payment or request concerned, by presenting the official form MM20 within two months from the expiry of the time limit, without any reason or evidence needed (the form is available here).

3. The International Bureau of the WIPO has provided an interpretation of the COVID-19 pandemic as an excuse for delays in meeting PCT time limits which relate either to the submission of documents or to the payment of fees. However, this interpretation does not apply to international patent applications.

4. The International Bureau of the WIPO has announced that users of the Madrid System (trade marks) and the Hague System (industrial designs) will be excused from failure to meet a time limit due to the COVID-19 pandemic, provided they make a request for relief within six months from the expiry of the time limit concerned. This measure applies to time limits for the transmission of a communication, the submission of information to correct an irregularity and the payment of fees. However, this measure does not apply to the payment of the second part of the individual designation fee through the International Bureau.

5. The processing of applications and other IP and related systems has not been affected by the pandemic. However, the International Bureau of the WIPO will only receive and transmit documents via email until further notice. Therefore, applicants, holders and their representatives are strongly encouraged to provide an email address and use electronic communication services.

6. All events and meetings organized or co-organised by WIPO until the end of May will be postponed and, should that not be possible, cancelled.

Measures taken by the EPO

1. All time limits expiring on or after 15 March 2020 in proceedings under the European Patent Convention (EPC) and the Patent Cooperation Treaty (PCT) were extended until 2 June 2020.

2. All oral proceedings scheduled until 14 September 2020 before the EPO Examining and Opposition Divisions are postponed until further notice unless they have been confirmed to take place by videoconferencing.

3. The EPO Boards of Appeal have resumed the holding of oral proceedings to a limited extent from Monday 18 May 2020. Concerned parties will be contacted accordingly. They will be requested to confirm as soon as possible their ability to attend in person and the absence of travel restrictions.

4. All EPO organised live events until 14 September 2020 have been postponed until further notice. Participants will be contacted on an individual basis and, where possible, be informed of the news dates. The EPO will otherwise continue its other activities without interruption.

5. Professional representatives and users are encouraged to make use of the EPO online services.

Measures taken by the EUIPO

1. All time limits expiring between 9 March 2020 and 17 May 2020 inclusive were automatically and with immediate effect extended until 18 May 2020. This applied to time limits set by the EUIPO and those imposed to the EUIPO by the EU framework on trademarks and designs. This did not apply to time limits before other authorities, such as the time limit to bring an action before the General Court against decisions of the EUIPO Boards of Appeal.

2. As of 18 May 2020, extensions have come to an end. Nevertheless, parties are reminded that they may request :

  • a six months extension of a time limit set by the EUIPO before that time limit expires and if exceptional circumstances justify it. Exceptional circumstances include (1) difficulties arising from measures taken by public authorities against the pandemic and (2) sickness of the party or its representative. The EUIPO may subject the extension to the agreement of the other party. Additional extensions may also be granted upon request.
  • a six months suspension of the proceedings before the EUIPO if exceptional circumstances justify it. In that case, exceptional circumstances also include the financial difficulties preventing the party from obtaining or securing continued professional representation before the EUIPO that are cause by the pandemic. In trademark proceedings, the suspension may be extended upon joint request for a total maximum of two years. In design invalidity proceedings, the suspension will be granted for periods of six months regardless of the period requested by the parties.
  • the continuation of proceedings within two months of the expiry of the unobserved time limit, even without giving any justification, provided that the omitted act is carried out in the meantime and a fee of 400 euros is paid. However, this option is not available in design proceedings and does not apply to certain time limits, including the time limit to file an appeal against a decision of the Boards of Appeal before the General Court.
  • the reinstatement of rights when a time limit to perform a procedural act was missed, despite taking all due care required by the circumstances. A request must be submitted within two months of the removal of the cause of non-compliance and no later than one year after the expiry of the missed time limit. Evidence must be provided that all due care was taken, that the omitted act was carried out in the meantime and that a 200 euros fee was paid. However, it is not applicable to certain time limits, including the time limit to file an appeal against a decision of the Boards of Appeal before the General Court.

Procedural time limits for lodging appeals at the General Court remained unchanged. Parties are however reminded that, in the event of unforeseeable circumstances or force majeure, they may request an extension to the General Court on the basis of Article 45 of the Protocol on the Statute of the Court of Justice. By contrast, in ongoing proceedings, the CJEU has specified that time limits are automatically extended by one month until further notice. However, this does not apply to time limits for instituting proceedings before the CJEU.

3. With the ending of the extension period, the EUIPO Executive Director confirmed that the last of the 21 000 delayed EU trade marks were published in the Bulletin. In addition, the EUIPO has gradually sent approximately 1.000 letters that were delayed due to the pandemic.

4. From 8 June 2020 on, all communications to the EUIPO can be carried out online. A “Reply” button is now available for all e-communications where a reply is permitted. A “Fax Alternative” option has been added as an additional fall-back solution.

5. All meetings and events taking place in March have been postponed until further notice. The participants having incurred expenses will be fully reimbursed by the EUIPO.

6. The EUIPO has guaranteed that it is “business as usual” for all its activities, thanks to its digital tools and its teams working from home. It has put in place a dedicated monitoring committee to follow the situation and take further measures where necessary. In the first phase of the return plan, 70 volunteers have returned to work on the EUIPO premises, while the rest of the staff continues to telework.

 

Measures taken by the BOIP

1. From 16 March 2020 to 25 May 2020 (“BAU date”), the BOIP has not withdrawn any requests or procedures for not meeting a given deadline.

An additional period of one month calculated from the BAU date has been given for all requests and procedures whose deadlines (1) have expired between 16 March 2020 and the BAU date, or (2) were less than one month from the BAU date, hence until 25 June 2020.

The BOIP has specified that:

  • All time limits that were set to expire between 16 March 2020 and 24 June 2020 have expired on 25 June 2020, including time limits for payments and time limits to file an opposition against a trademark application ;
  • All time limits that were set to expire on or after 25 June 2020 have remained unchanged ;
  • All time limits set from 25 May 2020 onwards will remain unchanged, even if they were set to expire before 25 June 2020.

It is important to note that this extension does not cover time limits to bring an action before the Benelux Court of Justice.

2. Until further notice, the register may not reflect the accurate status of certain trademarks. This is because the IT system of the BOIP applies the provisions of the Benelux Convention on Intellectual Property automatically.

3. The telephone accessibility of the BOIP was restored on 15 May 2020. Its staff will nevertheless continue to work from home as much as possible.

4. During the month of June 2020, it was possible to file i-DEPOTs free of charge. This system allows the applicant to have legal, date-stamped proof of an idea within minutes of the filing.

 

II.     COVID-19 MEASURES TAKEN BY NATIONAL IP OFFICES

This section focuses on the measures adopted by several national IP Offices, namely the US IP Office (USPTO), the German IP Office (DPMA), the UK IP Office (UKIPO), the French IP Office (INPI), the Italian IP Office (UIBM) and the Belgian IP Office (OPRI).

Measures taken by the USPTO

1. Time limits expiring between 27 March 2020 and 31 July 2020 concerning the petition for restoring priority or benefit rights in relation to patent applications and the payment of the associated petition fees to the USPTO are extended until 1 August 2020, provided that the filing or payment is accompanied by a statement that the delay was due to the COVID-19 outbreak. Until further notice, patentees may file initial patent term extension applications may be filed through the USPTO patent electronic filing system.

2. For small and micro entities only, the USPTO has also extended time limits expiring between 27 March 2020 and 29 September 2020 concerning the payment of certain fees (including basic filing fees, search fees, examination fees, late filing surcharge, basic national fee, issue fee and maintenance fee) until 30 September 2020.

3. In other cases, the USPTO will grant relief to those who need it on a case-by-case basis. Applicants should file a “petition to revive” in the forms prescribed if (1) they were unable to submit a timely response or fee in response to an Office communication, (2) they missed the 36-months statutory deadline for filing a Statement of Use resulting in an abandoned application or (3) they missed a statutory deadline resulting in a cancelled/expired registration. With regard to proceedings before the Trademark Trial and Appeal Board, if the COVID-19 outbreak has prevented or interfered with a filing, parties can make a request (in ex parte appeals) or motion (for trial cases) for an extension or reopening of time, as appropriate.

4. Oral hearings at the Patent Trial and Appeal Board (PTAB) and Trademark Trial and Appeal Board (TTAB), interviews of patent examiner and trademark examining attorneys and meetings will be solely conducted by phone or videoconference until further notice. Although the USPTO offices will remain closed to the public until further notice, its activities will nevertheless continue without interruption.

5. Under the new COVID-19 Prioritized Examination Pilot Program :

  • Small or micro entities may file a request for prioritized examination, without payment of the typical fees, in relation to patent applications covering a product or process that is subject to U.S. Food and Drug Administration approval for use in the prevention and/or treatment of COVID-19. Up to 500 qualifying patent applications will be accepted for prioritized examination and exempted from the usual fees.
  • Applicants may file petitions to advance the examination of trademark applications covering medical products and services linked to the prevention and/or treatment of COVID-19. Such petitions may be filed free of charge.

6. The filing of plant patent applications and follow-on documents is temporarily permitted via the USPTO patent electronic filing systems until further notice. Filers are reminded that only registered users may benefit from that option.

7. The USPTO will accept copies of handwritten signatures (instead of originals) for correspondence relating to “registration to practice before the USPTO in patent cases, enrollment and disciplinary investigations, or disciplinary proceedings” and payments by credit card “where the payment is not being made via the USPTO electronic filing systems”.

8. The USPTO launched the COVID-19 Response Resource Center in order to provide improved access to its initiatives, programs and IP-related information concerning the COVID-19 outbreak. To access this Center, click here.

Measures taken by the DPMA

The DPMA has confirmed its ability to perform its activities, but its services should come with delays. During the COVID-19 crisis, the following measures will be applicable:

1. All time limits prescribed by the DPMA with regard to all pending IP procedures were extended until 4 May 2020. However, this extension did not apply to time limits provided by German law, as the DPMA competence does not extend to those time limits, nor to time limits in connection with applications or requests concerning the international registration of trademarks. Any person who has failed to meet a time limit imposed by law due to the current situation may request to benefit from the option of re-establishment of rights. The unit in charge will check these requests on an individual basis.

2. Hearings and oral proceedings were cancelled ex officio until 30 June 2020. From 1 July 2020 on, the DPMA has started to gradually grant access to invited individuals. If the number of infections does not rise uncontrollably, hearings and orals proceedings will take place at the DPMA from that date. To this day, the DPMA has not issued any further guidance in that regard.

3. The DPMA can no longer guarantee the immediate transfer of international design applications to the WIPO. Applicants are advised to file such applications directly to the WIPO.

Measures taken by the UKIPO

1. The UKIPO has declared that from 24 March 2020 and until 29 July 2020, all days are considered “interrupted days”. All time limits that expire on an interrupted day are automatically extended to the next day. As a result, the first “normal day of operation” will be 30 July 2020, when all time limits that benefited from an extension will expire. This extension applies to all time limits set out by the UKIPO or by UK statutory rules.

2. From 30 July 2020 to 31 March 2021, the UKIPO has announced temporary fee changes to support businesses. In particular, fees for extension, reinstatement or restoration will be zero.

3. No physical hearings will be booked or take place until further notice. These hearings will be operated via telephone, videoconference or other virtual methods.

4. The time limit for responding to examination reports has been automatically extended to four months for all UK trademark applications. However, that time limit remains two months for UK design applications, although extensions may be requested by applicants.

5. With its staff currently working from home, the UKIPO is now able to process paper forms, faxes and paper correspondence in a limited capacity.

That being said, the UKIPO is currently unable to issue letters in relation to renewals. This may result in some users experiencing shorter timeframes from receipt of their letters to the expiry of the renewal period. Users are therefore encouraged to proactively manage their renewals rather than relying on these letters.

The address paperformcontingency@ipo.gov.uk can be used instead of faxing, posting or delivering documents by hand at the UKIPO. Forms should be sent in separate e-mails, accompanied with a fee-sheet if a fee is due. New applications should be made using the UKIPO online system, as delays should be expected for any other form of filing. Electronic signatures on forms and other documents will be accepted..

Measures taken by the INPI

1. The INPI buildings will remain closed to the public until further notice. In the meantime, its staff remains available by phone and e-mail. Its online services remain fully functional, whereas official copies of documents may only be provided by the INPI in a pdf format signed electronically. Finally, its trainings will remain suspended, with the exception of online webinars.

2. After the first measures taken by the INPI on 16 March 2020, the French Government has adopted an ordinance n°2020-306 on 25 March 2020 (as consolidated on 15 May 2020) that extends all time limits expiring between 12 March 2020 and 23 June 2020 to:

  • 23 July 2020 if the initial time limit was one month; or
  • 23 August 2020 if the initial time limit was two months or more.

The INPI has communicated that this extension applies to all time limits prescribed by the French Code of Intellectual Property, including time limits applicable to trademark opposition proceedings and to the renewal of IP rights. However, this extension does not apply to time limits prescribed by International and European legal texts such as priority deadlines for an international extension, time limits applicable to the payment for the filing of a patent and time limits for the filing of a supplementary protection certificate.

In proceedings where a suspension was requested or comes to an end, a letter will be addressed to the parties with the date on which the procedure is to be resumed. As a rule, the following will apply :

  • If a suspension is requested or renewed between 12 March 2020 and 23 July 2020 inclusive, it will be calculated from 24 June 2020 inclusive in its entirety.
  • If a suspension requested jointly by the parties ends between 12 March 2020 and 23 July 2020 inclusive, the number of days of suspension remaining on 12 March 2020 will be calculated from 24 June 2020 inclusive.

The INPI has also clarified the impact of the extension period on opposition proceedings:

  • The time limits to file an opposition that were due to expire before 12 March 2020 have not been extended.
  • The time limits to provide reasons for an opposition filed before 12 March 2020 have been extended until 23 July 2020.
  • The time limits to file an opposition that were due to expire between 12 March 2020 and 23 July 2020 have been extended until 23 August 2020.
  • The time limits to provide reasons for an opposition filed between 12 March 2020 and 23 July 2020 have been extended until 23 September 2020.

3. All notifications sent by the INPI Trade mark and Design Department to its users will be accompanied by an e-mail copy until further notice. This measure applies to certain notifications relating to opposition proceedings, namely (1) the opposition notification, (2) the notification setting a time limit for providing proof of use of the earlier trademark, (3) the draft decision notification and (4) the decision notification. Parties are reminded that notifications are also available on the INPI online portal and that they should check the e-mail address communicated to the INPI to avoid e-mail delivery failures.

4. All notifications that were not answered in time between 12 March 2020 and 23 June 2020 will remain on hold until the end of the extension period. To ensure the efficiency of the decision-making process, parties are advised to inform the INPI if they do not want to answer to a notification, or if they do not intend to benefit from a time limit extension.

Measures taken by the UIBM

The Italian Decree-Law No. 23 of 8 April 2020 provides for the following measures:

1. All time limits relating to administrative proceedings at UIBM pending on 23 February 2020 or commenced after that date are suspended until 15 May 2020. This does not apply to time limits applicable to appeals before the Board of Appeal, nor to time limits applicable to international patent and trademark applications (first filings and renewals).

2. All IP rights expiring between 31 January 2020 and 31 July 2020 remain valid until the 90th day following the end of the state of emergency. The UIBM will promptly inform users about that date. After that date, it is the responsibility of the interested party to take action in order to obtain their maintenance or renewal.

The UIBM has also taken its own internal measures to face the pandemic:

1. The UIBM offices have been closed from 12 March 2020 and until further notice, but its staff remains active. The processing of paper documents forwarded by post will only be possible upon the reopening of the UIBM offices. Applicants and holders are advised to use the electronic filing system.

2. The release of authenticated copies has been temporarily suspended. Applicants and holders may only receive simple copies by email. All requests in that regard must be addressed to the following address: mirella.smecca@mise.gov.it.

3. The filing of international patent applications may still be made through the ePCT platform on which the UIBM is fully operational. The filing of international trademark applications should be made via a dedicated certified legal e-mail address: dglcuibm.div08@pec.mise.gov.it. In addition, applications in paper format have to be sent to the UIBM as soon as possible.

Measures taken by the OPRI (Belgium)

1. After announcing that it was prepared to accept, as far as possible and on a case by case basis, individual requests for extension of time limits, the OPRI has stated that it does not currently have a legal basis to grant time limits extensions before the Office in the event of a crisis.

2. Since 1 July 2020, the OPRI has resumed its normal functioning with regards to notifications. Previously, the OPRI had decided to stop sending legal notifications to its users, that would have the effect of setting a new binding time limit sanctioned by a loss of rights in the event of non-compliance. On 25 May 2020, the OPRI had resumed sending such notifications to its users, accompanied by an e-mail copy as a courtesy measure. Since 1 July 2020, the OPRI has stopped practising this courtesy measure, and therefore resumed its normal functioning in that regard.

3. The search service “EPOQUE” provided by the OPRI Information Section has remained suspended until 25 May 2020. Since then, searches may only be conducted through that service in limited amounts as a first step.

4. With its staff working from home, the OPRI has urged users to give preference, where possible, to electronic channels of communications. Applicants and holders are advised to use the OPRI online filing tool (eOLF) or its fax number (+32 2 277 52 62). The use of emails is recommended as well, except for the filing of formal acts.

CONCLUSION

In the last months, IP Offices around the globe have taken measures to secure their users’ rights in the midst of the COVID-19 outbreak. Although most Offices have announced the extension of procedural time limits, these announcements call for caution: depending on the case, those extensions may be limited to some instances of the Office concerned, or to some provisions of the legal texts applicable. Therefore, we advise IP professionals and companies to take extreme care in the way they handle IP assets in these troubled times.

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For any question, please contact the authors:

Emmanuel Cornu: emmanuel.cornu@simontbraun.eu
Romain Meys: romain.meys@simontbraun.eu

 

The information presented in this site is not legal advice or opinion. You should seek advice from a legal counsel of your choice before acting upon any of the information in this site.

Fanny Laune featured in Trends-Tendances regarding judicial restructuring procedure

Fanny Laune is featured in the Trends-Tendances article “Faut-il assouplir la réorganisation judiciaire?” by Gilles Quoistiaux.

This is the opportunity to share views on a draft bill aiming to simplify this rescue procedure for companies which will likely boom in the coming months…

The article is available here.

Should you have any question on this subject, bankruptcy or insolvency in general, do not hesitate to contact Fanny: fla@simontbraun.eu

 

 

Simont Braun recognised again for its patent expertise by iAM 1000

Our IP team has again been highly recognised in Silver Band for its expertise in patents by iAM Patent. The department is ranked in Silver with the following mention:

“Complex global patent litigation is meat and drink to the lawyers at Simont Braun, who conjure up ingenious solutions to contentious challenges in the life sciences, medical device, electronics sectors. Fernand de Visscher recently played a hand in a high-profile matter for weapons manufacturer FN Herstal, ensuring that his client could keep its key product on the international market. He also teamed up with colleague Eric De Gryse to represent OGI Systems, a diamond and gemstone manufacturer, in parallel infringement proceedings which are also ongoing in Israel and India. They both possess significant trial strength and an intuitive feel for the intricacies of each brief, giving every angle the attention it deserves to cover all bases and construct bulletproof arguments.”

Fernand de Visscher and Eric De Gryse are also individually ranked in Silver for their experience and capabilities.

Thank you to our clients and peers for your trust!

Suspension of the notice periods during Corona temporary unemployment

The law of 15 June 2020 that aimed at suspending the notice periods during the days of temporary unemployment due to force majeure as a result of the COVID-19 crisis came into force today.

The law applies to all dismissals with a notice period to be served that have begun since 1 March 2020.

The law did not provide for retroactive effect, which means that it is only from the date of publication of the law, i.e. 22 June 2020, that the notice period will be suspended for all days of temporary Corona unemployment.

Therefore, the periods of temporary unemployment put in place until the date of publication of the Act will not affect the notice periods that have started to run since 1 March 2020.

As a result, these periods of suspension should be taken into account when determining the effective duration of the notice period insofar as they extend it by an appropriate amount, as is the case, in particular, for days of holiday or sickness.

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For any question, please contact Pierre Van Achter
pva@simontbraun.eu  –  +32 (0)2 533 17 36

Green light for the “Corona Parental Leave” until 30 June 2020

To help the workers who have to look after their children while schools are closed following the containment measures, the government has provided for the possibility to take a “Corona parental leave” (Royal Decree of 13 May 2020).

The main features of this parental leave are as follows:

  • Workers can take a 1/5 time or 1/2 time Corona parental leave. No total interruption of working time for this reason is foreseen.
  • The parental leave can be taken by a full-time worker but also as a reduction of working time to a 1/2 time by a part-time worker employed in a regime of at least ¾ of a full-time occupation when the parental leave takes place.
  • This leave is available to parents who have been employed for at least one month and who have at least one dependent child who has not reached the age of 12 (or 21 if the child is disabled).
  • Corona parental leave must be taken during the period from 1 May to 30 June 2020
  • This leave may be taken for an uninterrupted period until the end date of the measure, or in consecutive or non-consecutive months or weeks.
  • Corona parental leave will not be deducted from the regular parental leave credit. It is an additional parental leave.
  • This Corona parental leave can only be taken with the employer’s agreement. However, the request procedure is shorter than that for ordinary parental leave. The employee must notify his/her employer3 working days in advance in writing (registered letter, e-mail with acknowledgement of receipt, or a letter with a duplicate signed by the employer). The employer must respond in the same way within maximum 3 working days. Shorter deadlines may be agreed upon by the parties.
  • Employees who reduce their working time under this scheme will receive a higher allowance from the National Office for Employment (ONEM/RVA) than that granted for ordinary parental leave, up to an additional 25%. The allowance must be requested in writing no later than 2 months after the start of the Corona parental leave.
  • Workers who currently benefit from ordinary parental leave (or a career break) can also convert their current leave into Corona parental leave (e.g. ½ ordinary time into ½ corona time) or temporarily suspend their ordinary parental leave and apply for Corona parental leave (e.g. full-time ordinary into ½ corona time).

***

For any question or assistance, please contact Pierre Van Achter

pierre.vanachter@simontbraun.eu  |  +32 (0)2 533 17 36

 

 

Covid-19 – Temporary protective measures for enterprises in difficulty – Extended until 17 June

Update 13 May  |  The Federal Government has adopted new protective measures for enterprises affected by the COVID-19 crisis in the Royal Decree n°15 of 24 April 2020 (the “Royal Decree”).

Which enterprises are eligible to benefit from these measures?

  • Enterprises within the meaning of Book XX of the Belgian Code of Economic Law;
  • whose continuity is threatened by the COVID-19 pandemic and its consequences; and
  • which were not in a state of cessation of payments on 18 March 2020.

For how long may enterprises benefit from these measures?

The measures shall apply from 24 April 2020 to 17 June 2020 (the “Moratorium”). They have been extended beyond the first Moratorium running until 17 May, by a Royal Decree of 13 May 2020 extending the measures initially provided by the Royal Decree n° 15.

What are the measures to protect enterprises affected by the crisis?

No preventive or enforceable seizure may be granted, and no enforcement action may be pursued or carried out on an enterprise’s assets.

Seizures on real estate assets remain permitted.

An enterprise may not, at the request of its creditors, be declared bankrupt or dissolved (in the case of a legal person) except:

(i) on the initiative of the Public Prosecutor’s Department, or

(ii) on the initiative of the temporary director (voorlopig bewindvoerder/administrateur provisioire) appointed by the President of the Enterprise Court, or

(iii) with the agreement of the enterprise itself.

Eligible enterprises are relieved from the obligation to make an admission of bankruptcy throughout the Moratorium.

However, company’s directors should ring the warning bell (alarmbelprocedure/procedure de la sonnette d’alarme) and call the general meeting if the financial situation of the company justifies it (see our previous news here).

Payment terms provided in a judicial reorganisation plan approved before or during the Moratorium are extended for a period equal to the duration of the Moratorium provided that the execution of the plan does not exceed five years.

Contracts entered into before 24 April 2020 may not be terminated unilaterally or by a court decision due to a failure to pay a debt due under the contract during the Moratorium. Therefore, an express resolutory clause (uitdrukkelijke ontbindende beding/clause résolutoire expresse) cannot take effect during this period.

Similarly, other contractual mechanisms relating to non-payment may not take effect (such as penalty clauses for late payment).

However, the Royal Decree does not provide for a derogation  for:

(i) the debtor’s obligations to pay its debts due,  nor

(ii) the implementation of contractual sanctions under ordinary law such as, inter alia, the defence of non-performance, the set-off and the right of retention,

(iii) the application of the Law of 15 December 2004 on financial securities and various tax provisions relating to security agreements and loans relating to financial instruments,

(iv)  the obligations of employers.

What protection for creditors?

A creditor may proceed before the President of the competent Enterprise Court (“as in summary proceedings” (zoals in kort geding/comme en référé)) to lift the measures mentioned above (in whole or in part).

The President will lift these measures at his discretion, taking into account all relevant circumstances to assess the impact of the Corona crisis on the enterprise, such as:

  • whether, as a result of the Corona crisis, the debtor’s turnover or activity has fallen sharply;
  • whether there has been total or partial recourse to temporary or total unemployment;
  • whether the authorities have ordered the closure of the debtor’s enterprise;
  • whether the debtor and the creditor tried to reach an agreement,
  • whether there were attempts to obtain new credits;
  • the consequences of the suspension on the applicant’s interests (e.g. the creditor) (domino effect);
  • the overall burden of the debt and the debtor’s chances of recovery;
  • the fact that the debt arose from contracts concluded after the outbreak of the COVID-19 pandemic, insofar as the debtor could have foreseen the consequences;
  • whether the company is not affected by the pandemic or is perfectly capable of paying its debts (i.e. fraud).

Finally, and as set out above, creditors can still apply certain traditional contractual sanctions.

***

Axel MaeterlinckFanny Laune and Maxime Born

Should you have any question, do not hesitate to contact:
Axel Maeterlinck: axel.maeterlinck@simontbraun.eu
Fanny Laune: fanny.laune@simontbraun.eu

Update 29 April – Exceptional measures facilitating the functioning of corporate bodies in Belgium

Update 29 April

Regulatory framework

1. Following the outbreak of the COVID-19 pandemic, a number of corporate entities are facing difficulty to organise their ordinary shareholders meetings and the meetings of their management bodies.

Many companies have also decided to hold extraordinary shareholders meeting to adapt their articles of association to the provisions of the new Companies and Associations Code (hereinafter, the “CAC”) this year at the same time as their ordinary shareholders meeting.

2. In response thereto, the Belgian Government has adopted a special Royal Decree[1] (hereinafter, the “Royal Decree”), providing flexible short-term solutions, which are optional, for the organisation of their corporate meetings derogating to different provisions of the CAC.

Entities concerned

3. All forms of companies, non-profit organisations, contractual collective investment undertakings and legal entities governed by public law may use the possibilities introduced by the Royal Decree, as summarized below.

4. This news will focus on the application thereof to companies and will not address the specificities applicable to the other entities concerned by the Royal Decree..

Board of directors: written proceedings and telecommunication

5. The board of directors may, in all circumstances, decide unanimously in writing, notwithstanding any restrictions in the articles of association.

In addition, any meeting of the board of directors may be held by means of telecommunication techniques allowing joint deliberation, such as telephone or video conferences.

Shareholders meetings: remote meeting or postponement


1.     Remote meeting

6. Companies may require shareholders to exercise their voting rights exclusively :

  • by voting remotely using a form made available by the board of directors or via a website, in accordance with the provisions of the CAC; and
  • by giving a proxy to another person prior to the shareholders meeting. The board of directors may appoint one person that may act as proxy. This person can validly represent a shareholder upon receipt of specific voting instructions for each item on the agenda.

7. The voting form and/or proxy may be forwarded to the company by any means, including e-mails and scans.

8. For listed companies, these documents should reach the company at the latest on the fourth day prior to the date of the shareholders meeting. Other companies may impose the same time limit.

9. The company may limit the number of participants to the bureau of the meeting (if any), the members of the board of directors, the auditor and the proxyholder. The meeting may be held by conference call or video conference. It is not required in such case that the Company extend such solution to the participation to shareholders or other persons having the right to participate to the shareholders meeting, if the Company cannot guarantee compliance with the COVID-19 measures applicable at the time of the meeting.

10. Companies may require the shareholders to submit their questions in writing, and request them to do so at the latest the fourth day prior to the meeting. In such a case the board must answer to the questions submitted by the shareholders either in writing at the latest on the day of the shareholders meeting (before the vote) or during the shareholders meeting if its shareholders are allowed to follow the meeting live or in recorded form (webcam, conference call, etc.). Listed companies that opt for answers in writing should publish these on their website. Other companies may inform their shareholders by any other means, ensuring that their shareholders are reasonably able to take note of the answers.

11. For the rest, the modalities for convening remain generally applicable.

12. Companies that would have already convened their shareholders meeting may amend the convening notice without having to fulfil all formalities required by the CAC:

  • For listed companies: by means of a press release and on the company’s website no later than the sixth day prior to the date of the meeting already convened.
  • For other legal entities: by the most appropriate means.


2.     Postponement of shareholders meeting

13. The board of directors may decide to postpone the annual shareholders meeting and any other shareholders meeting, even if they have already been convened. This is not allowed for meetings convened in application of the warning bell procedure (“sonnette d’alarme/ alarmbel”), meetings convened at the request of the statutory auditor or meetings convened at the request of shareholders.

14. The postponement must be announced:

  • For listed companies: by means of a press release and on the company’s website no later than the fourth day prior to the date of the scheduled meeting. .
  • For other legal entities: by the most appropriate means.

15. In the event the board decides to postpone the shareholders meeting, all formalities must be complied with for convening the new shareholders meeting.

16. The dates for the approval, the submission of the annual accounts or where applicable, publication of the financial report have been extended with 10 weeks following the deadlines provided by the CAC or by the Royal Decree of the 14 November 2007.

Companies whose financial year ends on 31 December 2019 could therefore approve the annual accounts until 8 September and have until 8 October to file the annual accounts with the National Bank of Belgium.


3.     Video- and teleconference

17. Companies can also decide to hold a general meeting by video or teleconference in accordance with the CAC, even if this is not provided by the articles of association.. In such case, the general principles for general meetings remain applicable and procedures for deliberation, questions and voting should be put in place.


4. Written proceedings

18. It should be reminded that decisions of the shareholders meeting may be taken unanimously in writing in accordance with the CAC, except if such possibility is excluded by the articles of association. This may be done for companies with a small number of shareholders.

Notarial deed

19. For resolutions which require a notarial deed, the Royal Decree provides that only one director or any other person appointed by the board of directors should appear before the notary in person.

Entry into force – duration

20. The measures enter into force retroactively as from March 1, 2020 and will be applicable until June 30, 2020. 

21. The measures may also be applied for meetings that are convened before June 30 but which are to be held after such date.


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For any question, please contact the authors:

Sandrine Hirsch  |  sandrine.hirsch@simontbraun.eu
Tine Bauwens  |  tine.bauwens@simontbraun.eu
Nikita Tissot nikita.tissot@simontbraun.eu
Maxime Born  |  maxime.born@simontbraun.eu

 

[1]Arrêté royal n° 4 du 9 avril 2020 portant des dispositions diverses en matière de copropriété et de droit des sociétés et des associations dans le cadre de la lutte contre la pandémie Covid-19. Koninklijk besluit nr. 4 van 9 april 2020 houdende diverse bepalingen inzake mede-eigendom en het vennootschaps- en verenigingsrecht in het kader van de strijd tegen de Covid-19 pandemic. – The Royal Decree of 28 April 2020 has extended the measures provided in the Royal Decree of 9 April 2020 until 30 June 2020.

IP & Covid-19: A 2-minute overview of the IP measures in Belgium by Emmanuel Cornu

The current context of the Covid-19 outbreak has many consequences for the world of intellectual property: the deadlines of the courts and offices have been extended, the authorities have reorganised their control activities, etc.

As governmental measures differ from country to country, the UNIFAB invited Emmanuel Cornu to present a summary of the situation in Belgium.

He explains, in 2 minutes, the exceptional measures taken by the BOIP and the OPRI, as well as the measures applicable before the Belgian Customs authorities. The video is available here.

A summary in English is available here, and in French here.

For a complete overview of the measures taken by international, regional and national IP offices, please read our regular updates here.

Autonomous Vehicles in Belgium. Is our legal system ready?

We have been hearing about autonomous vehicles (“AVs”) for quite a while. However, as time goes by, the use of AVs is getting closer to becoming a reality. In various countries, car manufacturers are now carrying out tests on open or closed parts of public roads. Just like engineers are facing technical challenges in this field, lawyers have to deal with questions around liability, cybersecurity, data protection, insurance, intellectual property, etc. In this framework, news about AVs accidents are getting less and less uncommon, and they lead to tricky liability questions, such as: can a car user be held liable if he or she had no direct control over the wheel?

Such questions might need a clear answer in the near future and the whole AV subject at large is gaining track. Recently, a Belgian politician launched the idea to make Belgium the first country to welcome AVs. In parallel, the European Commission issued in February 2020 a White Paper on Artificial Intelligence, referring to liabilities incurred by AI, and by extension by AVs.

What do you mean, “autonomous” vehicle (“AV”)?

AVs’ autonomy varies in degree. Subject to a specific European scale of autonomy measurement, authors generally refer to the Society of Automotive Engineering (“SAE”)’s scale. SAE is an international organisation based in US. It brings together engineers, CEOs, researchers, professors, and students who share ideas on automotive engineering. It established six levels of autonomy, ranging from a complete human intervention (level 0) to a total absence of human action (level 5).

To date, the most advanced AVs on the market are of level 3. In that case, the vehicle can handle itself all aspects of the driving tasks within a certain set of circumstances. In some instances, the human driver must be ready to take back control of the vehicle when the AV so requires, e.g. during a traffic jam. According to car manufacturers’ (enthusiastic) declarations, the next levels of autonomy should reach our market in the coming months or years.

How does Belgian law address liability issues in the case of AV accident?

At this stage, Belgian law does not have any specific liability regime addressing the risks generated by AVs.

A victim of an AV should thus find its way through the existing and non-specific Belgian liability regimes. In short, four liability regimes can be identified as potential legal basis for a claim.

1. The fault-based liability regime (Article 1382 of the Civil Code)

This requires the victim to prove three things: a wrongful behaviour from the AV user, a damage and a causal relationship between the behaviour and the damage.

The tricky question here is whether a driver can be found guilty of a wrongful behaviour if he or she was letting the AV operating itself at the time of the accident?

2. The strict liability regime for the use of defective things (Article 1384 of the civil Code)

The victim should prove its damage and a causal relationship, just like in the previous fault-based liability regime. However, in this case, the victim can limit itself to proving a malfunctioning in the AV, rather than proving a wrongful behaviour of the AV user.

This solves the question raised by the previous regime but raises a new one, e.g. how do you prove a malfunctioning when the accident is the result of an algorithmic decision, which in turn could potentially be the outcome of machine learning?

3. The product liability regime (law of 25 February 1991 on product liability)

This regime is similar to the second liability regime as the victim must prove its damage, a malfunctioning of the AV and a causal relationship between these two aspects. However, in this case, the victim will seek compensation against the manufacturer, not the driver.

Furthermore, the compensable damage will be limited to personal injuries (including moral damage) and, subject to certain conditions, damages to property. Other types of damage (e.g. loss of opportunity) are not recoverable under this specific liability regime.

4. The insurance liability (Article 29bis of the law of 28 November 1989 on compulsory motor vehicles liability insurance).

Once a vehicle is involved in an accident, “weak users” (e.g. pedestrians and cyclists) may obtain compensation from the car insurer for the damages resulting from this accident.

In this case too, recoverable types of damage are limited. They only cover personal injuries or death, as well as damage to clothing (quite oddly).

What’s next?

Vehicles are becoming more and more autonomous. Level 5 (fully autonomous) AVs are still prohibited at this stage but their eventual arrival on the market will generate liability questions for which our legal system is not well equipped.

They will change the fault-based paradigm and we anticipate that a dedicated liability regime (e.g. based on the mere use of the AV) will be needed to complement our existing legal framework. We at Simont Braun will closely follow up on this and keep you posted.

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For any question, please contact the authors:

Thomas Dervaltd@simontbraun.eu
David-Alexandre Sauvagedas@simontbraun.eu