flashcards for exam
who is the GDPR applicable to
organisations offering services or monitoring the behaviour of EU citizens.
non-eu company offering goods to Eu customers
difference between regulation and directive
regulation =
- legislation that EU countries implement and is directly applicable
- full harmonisation
directive =
- indirectly applicable to be implemented in member states.
- only binding with regard to result
what is the idea behind EU
common market with no borders
peace, safety and wellbeing
which 2 treaties govern the 27 member state of EU
TEU and TFEU (covers free trade, customs union, economic and monetary union)
what do the principles of proportionality and subsidiarity mean
Article 5 TFEU
proportionality = content and form of union shall not exceed what is necessary to achieve the objectives of the treaties
subsidiarity = The union may only act if an action cannot be achieved at member states
what are the main EU institutions
Legislator
- parliament and council
Judiciary
- european court of justice
Executive
- EU commission
what are the 4 freedoms in European law
- goods
- capital (investment)
- services (builders, bankers can practice throughout EU)
- persons (free movement)
what article of TFEU sets out freedom of movement
Article 49
what is the rule of law
everyone person is subject to the law
what is trias politica/ separation of powers
the 3 branches of government
- legislator
- executive
- judiciary
what is the process of acts of parliament being done national level
- proposal
- advice council of State
- 2nd chamber of parliament
- 1st chamber of parliament
- king
- publication
what are the 3 courts within judiciary
Supreme Court, court of appeal, district court and subdistrict court
what is a summary proceeding
used for urgent preliminary relief.
non jury legal process that resolves a dispute quickly
what happens during a seizure
- if the defendant won’t pay out his own will, the claimant can seize assets of the defendant.
- bank accounts, real estate can all be seized.
what is a counterclaim by the defendant
counter arguing the claimant supported by evidence
what is a prejudicial query
when legal aspects are unclear to court they can pose prejudicial/ preliminary question to either
1. NL Supreme Court or
2. in case involving EU law - the eu court of justice in Luxembourg
what problems does the judiciary face
- massive case load
- automation system failure
- long time to process
in what cases can a foreign party claim before a dutch court
- when claimant is foreign
and defendant is based in NL
when are mass claims relevant
data leaks, mass injury after disaster, examples….
how is a contract formed
offer and acceptance
what is an invitation to start negotiation
window advert
what is meant by will and statement
will means intention expressed through a statement
- for there to be no will the defendant would need to show that the statement did not match intent.
- but the claimant can show they relied on bus statement as an expression of intent
what are the contents of a contract
essence (Names, mutual obligations, due date payment, signing date, signatures)
general terms
what are terms and conditions
‘fine print’
- everything that is not in the essence of the contract (Limitations of liability, payments and consequences of non-performance)
- user is obliged to make them available
- reference to text suffices
what is void and voidable contracts
void (formal requirements not met of public order reasons and contract cannot be enforced before court)
voidable (fraud, threat, abuse of circumstances and claimant decided whether it is void or not)
what are different types of non-performance
misrepresentation
- If the representation is falsely made, however, it can be a misrepresentation and can cause the contract to be voidable.
force majeure
- extraordinary event out of ones control = frees both parties from liability
how can you revoke an offer?
in NL it can only be revoked once it has been reasonable time
is law of torts contractual or non-contractual
non contractual/ fault based
what are the 4 requirements for action based on tort
- unlawful act
- blame
- damage
- causal relation between act and damage
what is meant by unlawful act
- violation of a right or
- statutory duty or
- general duty of care.
what is a tortious act
act that brings harm to someone
do employers have duty of care
- yes
businesses are usually insured against damage caused by torts by their employees and products
do parents have duty of care
yes as they are parents
if tort committed abroad what law applies
foreign country applies
how long after the event occurs can you claim on tort
5 years or if the identity of the the damagers was unknown its 20 years
what different things can you be compensated for in tort law
pecuniary damage, devaluation, costs made, missed profits
under dutch and common law how do u transfer ownership.
dutch - tradition and agreement
common - agreement only
how do u transfer goods
written deed between buyer and seller
is a bitcoin a good
not seen as a good you can own and sell but instead a contractual claim
what are contracts used for
for purchase of goods and services
what is the purpose of the ROME 1 regulation
enables parties to choose the law governing contract.
CROSS BORDER contracts
what type of law is ROME 1
an eu act/ regulation that is directly applicable
what is the step by step of what type of law is applicable
- first check if there is a choice
- if no choice and parties are EU MS, check ROME 1
does Rome 1 contain substantive law or referral rules
referral rules
what is the CISG treaty?
convention on contract for international sale of goods
- provides substantive rules for international contracts, like defining breach of contract
what is the Brussels 1 regulation
determine which national court is competent in cases of litigation arising from international contracts
what is meant by choice of forum
an element of contract which states which national court would be used
what happens if there is no choice of forum
the default os typically the court in the country where the defendant lives
what are incoterms
standards issued by the international chamber of commerce to define responsibilities in international contracts of sales, particularly concerning transportation risks and delivery terms
what is the alternative despite resolution
arbitration and mediation
what are the relevant acts for company law
uk - companies act
germany - AktG and GmbH
US - state law
NL - DCC Book 2
what is BV and NV?
BV = private limited liability company (small and medium enterprises)
NV = Public limited liability company (larger enterprises)
what are the different types of legal forms for doing business
sole proprietorship
partnership
limited liability companies
what is difference between limited liability company and private company
limited liability is not personally accountable
what are the articles of association
document that defines purpose of the company, kind of business it will develop and duties and responsibilities
what are the shareholder powers
appointment
dismissal
remuneration
discharger directors
adoption of annual accounts
filing for bankrupt
what is the board of directors power
representation
operations and risk management
administration
what is meant by piercing the corporate veil
situation where courts put aside limited liability and hold corporations shareholders or directors personally liable.
in cases of fraudulent conveyance of goos
why are intellectual property rights important
- distinguishment
- value creation
- competitive advantage
- they can be assets on balance sheets
how do you register a trade or company name
usually be registration
- cant interfere with existing company name
what can you do if someone uses a similar name
- order injunction to stop further use of name based on tort (non contractual liability )
- specific remedy to change name
how long is trademark protected
NL 10 years
what can the owner of if their trademark is violated
injunciton
- claim damages
- claw back profits
- claim deregistration
what is trademark
sign used to distinguish a product or service from competitors
what is copyright
exclusive right to exploit literary, scientific or artistic work
how do you register a copyright
its automatic once its been written down
how long is copyright protected for
50 years
what constitutes violation of copyright
copying it for any commercial exploitation
what can the owner do once copyright has been violated
injunction and penalty
profit claw back
how does copyright work in employment
if a work is made by an employee then it is the employers.
BUT it is transferred upon termination of the employment agreement
what does national treatment mean
according to Berne convention - a copyright originating in one MS must be given the same protection in any of the MS
what is a patent
exclusive right to exploitate an invention
what are the 3 requirements for a patent
- inventive step
- novelty
- industrial applicability
how long is patent protected for
20 years
what can a patent owner do if their patent has been violated
injunction
what are grounds for patent invalidity
not novel and lack of inventive step
what is the patent office on european level
EPO unitary patent
which treaty covers international patents
Patent cooperation treaty (PCT) bundle of national patents
what does the GDPR do
protect individuals fundamental rights and freedom
what does article 4 of the GDPR state
personal data definition
- any info relating to an identifiable natural person (data subject)
what dos processing mean according to GDPR
any operation which is performed on personal data
- collecting
- recording
- organising
- storage
- use
when is processing allowed
The processing is lawful and is done in accordance with the six principles for data processing.
what is classed as a controller
organisationthat determines the purposes of processing
who is the processor
actually processing the data
what are the types of employment issues
workplace issues
modern slavery
conflicting rights
gig economy
what are the 5 employment law principles
- right to work
- freedom of contract
- no slavery/ modern slavery
- the right safety/ labour conditions
- no discrimination
what are contractual aspects of an employment
parties agree to the contractual terms but they also join collective labour agreements and companies codes of conduct
can u dismiss someone under NL law
no unless serious
- economic reasons
- personal reasons
- dysfunctional relationship
what are codes of conduct
guidelines specifying expected behaviours - self regulated
what is discrimination
unjust treatment of different categories of people
what is collective bargaining
workers, typically through their unions or representatives, negotiate with their employers to establish terms of employment. The goal of this process is to come to an agreement that regulates salaries, working condition
can a junior analyst at a bank vote or be elected for the banks work council
yeh
what is a normal non-competition clause
during employees employment with employer and 12 months after, they cannot work for direct competitor
when are emloyees protected
during, during illness and on and after termination
what employment issues are the EU harmonised on
- minimum wage
- non - discrimination
- social security
- platform employment risks
what is a non-solicitation clause
what is a non-competition clause
can a junior analyst employed at a bank can you vote for the council or can u be elected
yes and yes
can the works council effectively stop a company’s divestment plan
yes if it can convince the enterprise chamber (court) that there is no good grounds for this divestment plan
can a works council stop a new time table or the company
yeh
hat kind of personnel employed an have staff
business driven as a sole proprietorship
A ban on ancillary activities is no longer permitted, unless the employer has an objective justification ground. This means the new rule: [choose the optimal answer]
Forbids clauses in employment agreements that forbid ancillary activities for employees.
Forbids clauses in employment agreements that allow ancillary activities for employees.
Will forbid clauses that allow for ancillary activities by employees.
Only allows a ban on ancillary activities if the employer has an objective justification ground for such ban.
are non-competition clauses allowed
A non competition clause is allowed under Dutch law, provided certain conditions are met.
what is distributed ledger technology (DLT)
system that records transactions of assets in multiple places simultaneously
what is a block chain
a decentralized digital ledger technology that securely records transactions across multiple computers
- transparency
- decentralised
- efficient
what is bitcoin and project jasper
example of block chain
what does mining mean
the process of creating new blocks in exchange for rewards
what is a private key
used to identify the owner of a given cryptocurrency wallet. acts much like a password
what is a public key
generated alongside your private key as a pair, long string of characters that is run through an algorithm to produce wallet address
what is a wallet
tools used by crypto holders to control private keys and provide interface to make transaction
what is a smart contract
programs that run autonomously on a digitial platform or block chain
what are the key advantages of smart contracts
- allows for digitalisation of value
- guarantees execution
- implements atomic transactions
what is DeFi?
decentralised finance that uses smart contracts to provide financial services without trusted 3rd party intermediaries
EXAMPLE
- collaterised lending
what is an ICO
initial coin offering - issues a new token usually against other crypos such as BTC or ETH
what is an NFT
data representing a colleciton of digitial assets stored on a block chain that can be traded
what is a stable coin
cryptocurrency whose value is pegged to some other asset
what are some examples od stablecoi s
Tether
Libra
Dai
terra
what is central bank digital currency
a digital form of central bank money
can smart contracts be used as an alternative to contract law
- cant provide for payment of damages if damages excueed the contract sum meaning it doenst provide full remedies of contract law
- predetermined contracts not accomodating unforseen changes like contract law does
