Compulsory insurance in the construction sector: perfectly imperfect

On 1 July 2019, it became compulsory for construction service providers other than architects to have their civil liability and professional indemnity covered. This law of 25 April 2019 aims at complementing the law 11 May 2017 concerning the ten-year structural warranty in housing construction.

However, the scope of application and the consequences of the law of 2019 are significantly different:

1. the ten-year structural warranty under Articles 1792 and 2270 of the Civil Code is not included under the legal obligation to have insurance, and

2. contractors and real estate developers are both excluded from its scope of application.

What needs to be insured by whom?

For housing constructions in Belgium:

  • the architect, the contractor and the engineering firm have to insure their ten-year liability.
  • the architect, the engineering firm, the surveying experts and the health and safety coordinator are required by law to insure their professional indemnity.

For all other construction projects (non-housing construction) in Belgium: the architect, the engineering firm, the surveying experts and the health and safety coordinator are required by law to insure their professional indemnity.

Although harmonisation of the existing rules would be more than welcome, these laws made a significant step forward, long-awaited by construction project owners who frequently have to face the insolvency of construction professionals involved in the realisation of their construction project.

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 For any question or request for assistance, please contact Thomas Braun and Alexia Faes.

thomas.braun@simontbraun.eu
alexia.faes@simontbraun.eu

+32 (0)2 543 70 80

New regulatory framework for patent attorneys

Version française disponible ici – Nederlandse versie beschikbaar hier.

On 1 December 2020, the first part of the law of 8 July 2018 reforming the profession of patent attorney and creating a Belgian Institute for Patent Attorneys, entered into force.

This law is an addition to the existing regulations on the profession of patent attorney. The second part of the law will come into force in 2021.

Two royal decrees were adopted on 30 September 2020 to implement this law. The first one is a royal decree on patent representation. The second one is a royal decree establishing the disciplinary regulations applicable to patent attorneys.

Access to the profession of patent attorney

 Any person who establishes in Belgium to practise the profession of patent attorney must first be registered in the register of recognised patent attorneys. Natural persons wishing to appear in this register must satisfy various conditions, in particular:

  • be a natural person;
  • be a national of an EU Member State;
  • be domiciled in an EU Member State;
  • satisfy the conditions relating to training and professional qualification.

These requirements came into force on 1 December 2020.

The law also determines the conditions under which a person who is a national of a Member State, who is legally established in a Member State to practise the profession of patent attorney, and who comes to Belgium for the first time to practise as a patent attorney on a temporary or occasional basis, or who is practising as a patent attorney in Belgium for the first time without coming to Belgium, may act as a professional representative before the Belgian Office for Intellectual Property (“OPRI”) in the same way as a recognised patent attorney.

The date of entry into force of these provisions has yet to be determined by royal decree. Currently, these persons are authorised to practise in Belgium pursuant to the principle of the freedom to provide services: any attorney and patent attorney who is a national of an EU Member State can practise this profession in an EU Member State, as well as any attorney authorised to practise this profession in Belgium pursuant to a law or an international convention, may act in the same capacity as a recognised patent attorney before the OPRI.

The register of recognised patent attorneys is regulated by the royal decree on patent representation. It is freely available for consultation. It is maintained by the OPRI within the FPS Economy (Belgian Federal Public Service for Economy). For each registered person, this register contains certain data. The registered person must notify the OPRI of any modification of their data within fifteen days, as well as any modification of their situation with regard to the conditions of registration in the register. This part of the reform entered into force on 1 December 2020.

Creation of the Institute for Patent Attorneys

The law creates an Institute for Patent Attorneys.

This Institute has legal personality, is self-financed and has its headquarters in the Brussels-Capital Region. Its purpose is the study, protection and development of the professional, socio-economic, moral and scientific interests of patent attorneys.

The Institute for Patent Attorneys is composed of three bodies:

1. The General Assembly, composed of all the members of the Institute, including a president and a vice-president who are elected for a period of six years.

2. The Council, composed of four members, elected by the General Assembly from among its members for a period of six years. The Board is notably in charge of the management of the Institute for Patent Attorneys.

3. The Disciplinary Commission, composed of three members and three substitute members elected by the General Assembly from among its members for a period of six years. The Disciplinary Commission ensures that the disciplinary regulations and rules of conduct are applied by the members of the Institute.

A government commissioner and a deputy who assists him/her are appointed by royal decree on the proposal of the Minister in order to control the acts of the General Assembly and the Council of the Institute for Patent Attorneys.

The mission of the Institute for Patent Attorneys consists of:

1. Establishing a list of its members;

2. Coordinating the continuous training of its members;

3. Ensuring compliance with the disciplinary rules and the rules of conduct;

4. Expressing, on its own initiative, or at the request of public authorities or public or private institutions, opinions on matters within its competence; and

5. Sharing information with the Patent Agent Accreditation Commission existing within the OPRI concerning the status of the affiliation of the members of the Institute.

All patent attorneys in the register of recognised patent attorneys, as well as all patent attorneys who practise the profession of patent attorney in Belgium on a temporary or occasional basis, will automatically be affiliated to the Institute for Patent Attorneys.

This part of the reform also came into force on 1 December 2020.

Aspects related to the registration of patent attorneys

The law enacts the aspects related to the registration of patent attorneys.

Patent attorneys who are members of the Institute for Patent Attorneys must comply with the Institute’s disciplinary rules, rules of conduct, continuous training obligations and internal policies. This obligation comes into force on 1 December 2020.

The members of the Institute must also be covered by an insurance policy for any liability that may arise within the exercise of their profession as a patent attorney. The terms and conditions of this insurance are laid down in the royal decree on patent representation. The date of entry into force of this obligation has yet to be determined.

The professional title of  “mandataire en brevets” – “octrooigemachtigde” – “Patentanwalt” will become a legally protected title on a date that has yet to be determined by a future implementing decree. However, members of the Institute who only temporarily or occasionally work in Belgium will do so under the professional title (or the academic title) of their Member State of origin.

Professional secrecy and right to speak before Belgian courts and tribunals

Professional secrecy will be applicable to patent attorneys in the context of their intervention in judicial or administrative proceedings from a date yet to be determined. No one may disclose or be compelled to disclose communications exchanged between the patent attorney, acting in such capacity, and their client unless the latter has expressly waived this right.

Patent attorneys are recognised as having a right to speak before courts. At the request of the party or their attorney, they may provide written or oral explanations of factual matters, technical considerations or questions relating to the application of patent law. The date of entry into force of this right has yet to be determined.

Disciplinary rules

A set of Disciplinary Rules has been established by a royal decree of 30 September 2020, which came into force on 1 December 2020.

Since 1 December, members of the Institute are subject to certain ethical obligations such as the obligation to exercise their profession with dignity and integrity, an obligation of discretion (independently of professional secrecy), the obligation to notify the principal of a refusal of mandate and the obligation to refuse the mandate in the event of a conflict of interest, and the prohibition to limit their professional civil liability to an amount inferior to the amount of their basic insurance cover.

Any breach will be examined by the Disciplinary Commission, which is seized by a complaint from any interested party. It can also be seized ex officio, or on the reporting of facts by the Chairman of the Council of the Institute or by the Minister in charge of the Economy. The disciplinary procedure is detailed in the royal decree.

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For any question or request for assistance, please contact the authors:

Emmanuel Cornu
emmanuel.cornu@simontbraun.eu

Charlotte Behets Wydemans
charlotte.behetswydemans@simontbraun.eu

+32 (0)2 543 70 80

Should health and life insurers use the data collected by health-related apps?

With the generalisation of health-related apps, health and life insurers are keen to use the collected data to improve the accuracy of their insureds’ profiles. This trend raises important questions in terms of privacy but also in terms of risks mutualisation in society.

A bit of context

With the increase of technology and the ability of our smartphones or smartwatches to collect our heartbeats, count our steps, and assess our pace, developers have naturally seen an opportunity to develop health-related apps.

These apps track running performances (Runkeeper, Runtastic, Nike+, Fitbit…), monitor diet (MyFitness Pal…), analyse sleeping habits (Fitbit, Jawbone, isommeilr…), etc.

Citizens are using more and more of these health-related apps in their daily life.

Of course, health and life insurers are greatly interested in the health data collected by these apps. This is not necessarily a bad thing as this can mean that insurers can better assess the risk they insure and its evolution, and request more accurate premiums from their policyholders. Nonetheless, this trend also raises important questions in terms of privacy, but also in terms of insurance paradigm as such.

The privacy issue

The privacy issue is rather obvious. One might reasonably desire to keep certain aspects of one’s life private.

The privacy issue is not limited to the insurance world. Privacy is primarily addressed by the EU General Data Protection Regulation (GDPR). The purpose of this news is not to examine this regime in details. Let us simply remind that under Article 9 of the GDPR, health-related data are considered as “special categories of data”.

The process of this kind of data is subject to higher requirements and may only serve highly valued purposes. The data subject may, however, always give its explicit consent to the use of his/her health-related data (Art. 9, 2, (a) GDPR).

This explicit consent is rather well protected and must be free and genuine. For instance, a service provider may normally not monetise or subject the delivery of its services to the data subjects’ consent.

The segmentation issue

Where do we stand?

The insurance industry is based on the idea of risk mutualisation. This principle can be extremely useful to the operation of a society. In a nutshell, the healthy clients’ premiums pay for the insurance indemnity of the ill insured persons.

Health and life insurers have always tried to assess the risks presented by insured persons with the highest accuracy possible using statistical data. Typically, all things being equal, a young sporty person is less likely to die than and old person suffering from diabetes. This reality will normally result in the young person paying a lower insurance premium.

The division of insured persons in categories (e.g. young and healthy versus old and ill) is called “segmentation”. To each category corresponds a level or premium, certain categories of risk being simply refused by insurers (depending on their risk appetite). This is the reason why health and life insurances are almost systematically subject to a medical questionnaire and, in some cases, a medical examination.

Naturally, the more accurate and detailed the segmentation is, the less insurance services offer a mutualisation of risk to society and – arguably – the less useful become insurance services to society as a whole.

This risk has been identified by the Belgian legislator. One of the main Belgian attempts to avoid the risk of “demutualisation” is embodied in Article 44 of the law of 4 April 2014 relating to insurances. Under this provision “Any segmentation made in terms of acceptance, cost, and/or extent of the insurance cover must be objectively justified by a legitimate purpose, and the means to achieve this purpose must be appropriate and necessary”.

This provision lays down the legislator’s ideal but it is very broad and offers a lot of room for interpretation.

What’s next?

Certain members of Parliament fear that connected devices and health-related apps unduly change the paradigm of mutualisation in the insurance sector.

To prevent this potentiality, they have filed a law proposal with the intention of prohibiting the use by health and life insurers of personal data collected by connected devices. The law proposal further prohibits to subject insurance acceptance, pricing and/or extent of the insurance cover to the use by the insured person of health checkers and the sharing of data collected by such health checkers with insurers.

Practically, if enacted, the law proposal would bring a new Article 44, § 2nd, to the Law Insurances:

In derogation to Article 43, § 1st, this paragraph applies to the following insurance contracts:

1° Individual life insurance;

2° health insurance […].

No segmentation can be applied to acceptance, pricing and/or extent of the insurance cover subject to the condition that the policyholder accepts to acquire or use a health checker, accepts to share the data collected by the health checker, or subject to the condition that the insurer uses such data. The processing of the personal data collected by a health checker, relating to the way of life or health of the policyholder, is prohibited”.

The concept of “health checker” would be defined in a new Article 5, 53°, of the Law Insurances as “a device allowing the measurement of one or more variables associated to the way of life or the health of the policyholder”.

At the end of January 2020, the Belgian Data Protection Authority (“DPA”) issued an opinion on the law proposal.

The law proposal is primarily based on Article 9.4 of the GDPR, according to which “Member States may maintain or introduce further conditions, including limitations, with regard to the processing of genetic data, biometric data or data concerning health”.

The proposal is further based on abovementioned Article 9, 2, (a) of the GDPR, which provides that special categories of data (such as health-related data) cannot be processed unless “the data subject has given explicit consent to the processing of those personal data for one or more specified purposes, except where Union or Member State law provide that the prohibition […] may not be lifted by the data subject”.

According to the DPA, these two provisions of the GDPR effectively allow the Belgian legislator to introduce additional limitations to the processing of health data so that the law proposal is compliant with the GDPR.

Conclusion

While nothing is (yet?) cast in stone, the discussed law proposal is a perfect illustration of the difficult balance regulators need to strike between innovation and the preservation of existing paradigms.

Interestingly, it shows a strong desire of certain members of Parliament to safeguard the principle of mutualisation of risks in the insurance industry. This mutualisation is often seen as a key principle to the health system as a whole.

The DPA’s opinion is also a good reminder that the GDPR, although an EU regulation, still allows Member States to adopt stricter requirements when it comes to protecting special categories of data. In the case at hand, the law proposal somehow “protects the data subjects from themselves” by revoking their right to agree to certain use of their connected devices.

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For any question or assistance, please contact Thomas Derval
td@simontbraun.eu  |  +32 (0)2 533 17 09

Patent dispute settlements under scrutiny by the CJEU: the crossroads between IP & competition law

Introduction and context

It is safe to say that on 30 January 2020, the Court of Justice of the European Union (hereafter the “CJEU”) handed down a landmark decision in EU IP and competition law. The CJEU writes a new chapter in the patent dispute settlements saga, and more particularly in the debate commonly known as “pay-for-delay”. To recall, in the context of the pharmaceutical sector, “pay-for-delay” is a term used for agreements between originator pharmaceutical companies and generic manufacturers where the latter agrees for a certain period not to enter the market with generic medicines in exchange for a value transfer.

The question arose whether there was an issue with competition law. It is particularly hard to answer when it takes place in the context of a settlement between the originator company and the generic manufacturer following a real dispute (i.e. patent dispute settlements). Ever since the European Commission launched its sector inquiry regarding patent dispute settlements that ended in 2009 (the full first report available here and the latest report of 2018 here), where the issue was brought to the surface, market players and practitioners have been eager to know the CJEU’s take on the matter.

There has been a belief that competition rules on restrictive agreements do not apply to settlement agreements between originator pharmaceutical companies and generic manufacturers who have not yet entered into the market as the companies are not in competition. The pharmaceutical context – and patent law specifically – would constitute an insurmountable barrier to enter the market. There is also the belief that, even if competition law would apply, agreements to settle ongoing court proceedings pursue a legitimate objective which is from the outset incompatible with the categorisation of an agreement as restricting competition by its object, since such settlement agreements have a public interest and are encouraged by the public authorities.

The question of whether a patent dispute settlement agreement would constitute a restrictive agreement by object or by effect is of great importance. When it is considered a restrictive agreement by object, the restrictive effect of the agreement on competition does not need to be proven for there to be an infringement of competition law, as opposed to when it is considered a restrictive agreement by effect.

By way of preliminary ruling, the CJEU, in line with the reasoning of AG Kokott (which you can read here), sheds light on the matter and inter alia (figuratively) bursts these two assumptions. You can read the judgement here.

By way of information, the present case takes place within the context of Lundbeck (case T-472/13) and Servier (T-691/14), currently pending before the CJEU, in which the European Commission found that agreements in settlement of patent disputes constituted infringements of article 101 of the Treaty on the Functioning of the EU (“TFEU”) and with regard to Servier, article 102 TFEU.

 It should also be mentioned that the debate is not only taking place in Europe but also elsewhere in the world. For instance, in California (US), Assembly Bill No. 824 – commonly referred to as the “Pay for Delay” bill (here) – passed, which makes it unlawful for companies to settle patent infringement claims filed by generic manufacturers by providing “anything of value” in exchange for settlement. Any attempts to settle in such a fashion will be considered anti-competitive and open the company to civil litigation. The bill is aimed at lowering the cost of prescription medicines and fostering greater access to healthcare. It became effective on 1 January 2020. Not completely surprising considering that the Supreme Court of the United States had already found in 2013 that these settlements could violate antitrust laws (here).

The position of the CJEU

In the judgement of 30 January 2020, the CJEU responds to 10 questions (which the CJEU boiled down to 5) referred to by the Competition Appeal Tribunal (UK). The latter wonders, in essence, whether an agreement to settle a medicinal product patent dispute constitutes a restriction of competition by object or by effect and whether the conclusion of that agreement, possibly combined with entry into other agreements, constitute an abuse of dominance.

Before going into the decision, it is important to recall the facts briefly. It concerns an originator pharmaceutical company that is the holder of a manufacturing process patent for an active ingredient that is in the public domain, and generic manufacturers who have not yet entered but are preparing to enter the market with generics having the same active ingredient. The originator pharmaceutical company and the generic manufacturers were in dispute as to whether the process patent is valid and/or whether the generics infringe the patent.

Given that the originator pharmaceutical company only held a process patent, there was uncertainty of whether or not there was an infringement. Against that background, the originator pharmaceutical company and the generic manufacturers, even the ones with whom at that time no patent litigation was yet pending, concluded settlement agreements. The generic manufacturers undertook not to enter the market and not to pursue their actions challenging the validity of the patent for the duration of that agreement, in return for transfers of value.

In light of those circumstances, the CJEU responds very precisely by ruling that:

  • the pharmaceutical company and the generic manufacturers are potential competitors provided that the latter have a firm intention and an inherent ability to enter the market, and do not meet barriers to entry that are insurmountable;
  • the settlement agreement where the net gain has no other explanation than the commercial interest of the parties not to engage in competition on the merits, constitutes an agreement that has as its object the prevention, restriction or distortion of competition unless the settlement agreement is accompanied by proven pro-competitive effects capable of giving rise to a reasonable doubt that it causes a sufficient degree of harm to competition;
  • the strategy of the dominant undertaking, which leads it to conclude settlement agreements, which have, at least, the effect of keeping temporarily outside the market potential competitors who manufacture generics, constitutes an abuse of dominant position, provided the strategy has exclusionary effects going beyond the specific anti-competitive effects of each of the settlement agreements.

What should you take away from the judgment?

The decision is without a doubt of significant interest to pharmaceutical company patent holders, generic manufacturers as well as competition and IP lawyers. It provides much food for thought for those presently involved in or contemplating settlement agreements.

In general, the decision teaches us that patent dispute settlements are not immune from competition law review. In particular, it will be important to keep in mind that the mere fact of a dispute between a pharmaceutical company patent holder and a generic manufacturer may be sufficient to demonstrate that they are potential competitors and thus any settlement between them involving a value transfer is likely to attract antitrust scrutiny.

In that regard, the mere existence of the patent, or the likelihood of success in litigation (for example, in proceedings about validity or whether a patent has been infringed) is irrelevant to whether the parties are potential competitors and whether an agreement can affect competition. The question is rather whether, notwithstanding the existence of the patent, the generic manufacturer has real and concrete possibilities of entering the market at the relevant time. To that end, the CJEU explicitly recognised the ‘at risk launch of a generic medicine’ as inherent to the pharmaceutical market.

Positively, the CJEU affirms that patent dispute settlements are not as such prohibited by competition law and neither is the transfer of value in that setting. However, there is a high probability that where agreements involve significant value transfers and the sole consideration given for that value transfer is the generic manufacturer refraining from market entry and from challenging the patent during an agreed period, there will be a finding of a ‘restrictive agreement by object’ prohibited under article 101 TFEU.

The attentive reader might have spotted that the CJEU, as it only responds to the facts presented by the referring judge, leaves certain issues open. For example, one might wonder how the analysis might change if it was not a process patent but a compound patent or whether the transfer of value is not made solely in return for market exit and no-challenge commitments, but reflects other considerations between the parties.

Another interesting issue to further develop is the consequences of pro-competitive effects on the finding of a ‘restrictive agreement by object’. Of great value is the explicit recognition by the CJEU that pro-competitive effects are not completely excluded from the debate of whether or not there is a ‘restrictive agreement by object’. What is certain is that the CJEU does not require a balancing test to be carried out or consider that the mere existence of pro-competitive effects would be sufficient to exclude the finding of a ‘restrictive agreement by object’. The pro-competitive effects should be considered with the other circumstances of the case to verify if it raises a reasonable doubt on the conclusion that the agreement, by its nature, would result in a sufficient degree of harm to competition and whether it should thus be categorised as a ‘restrictive agreement by object’.

We look forward to the CJEU further expanding on the above and its guidance on patent dispute settlements in general when it delivers its Servier and Lundbeck judgement.

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Eric De Gryse and Christopher Dumont
You may always contact the authors should you have any questions:
eric.degryse@simontbraun.eu – +32 2 533 17 52
christopher.dumont@simontbraun.eu – +32 2 533 17 58

La représentation en justice par un agent d’affaires en cas de petit litige

Un passager cherchant à être indemnisé par une compagnie aérienne pour cause d’annulation ou de retard de son vol peut-il être représenté par un agent d’affaires ?

Marc Baetens-Spetchinsky analyse cette question au regard du Règlement européen sur les petits litiges, abordant aussi la notion de « circonstances extraordinaires » au sens du Règlement européen « droits des passagers » que les compagnies aériennes pourraient invoquer pour se défendre contre une demande d’indemnisation.

Publication parue dans le Journal des Juges de Paix, 3-4/2019, p. 152, disponible ici.

Our Digital Finance Team has authored the Belgian chapter of Chambers’ FinTech Global Guide 2019

Our Digital Finance Team has authored the Belgian chapter of the FinTech Global Guide 2019 released by Chambers & Partners, providing practical insight on key FinTech topics, such as Payments, Open Banking, Robo-advisory and InsurTech. The guide is available here: http://bit.ly/2UfuBxy