- Created on Wednesday, 18 April 2012 18:16
Abel Garriga. HOLTROP S.L.P Transaction & Business Law 
A vey interesting piece of audio from The Economist about three hot topics on legal issues related to technology: the antitrust case over e-book pricing, the intellectual property lawsuit between Google and Oracle and the merger of two big 3-D printing companies.
Enjoy!
- Created on Wednesday, 11 April 2012 11:51
Marysol Claver. HOLTROP S.L.P Transaction & Business Law
A new decision published at the end of last month (DGRN 31-3-12) makes it impossible to cease as an administrator if the company owes taxes.
The Tax Agency is entitled to discharge a company when the company has breached its tax obligations. The consequences of such discharge are the immediate closing of the page open to the entity in the Commercial Registry.
This means, that the registry of all acts in the Commercial Registry will be banned until the Tax Agency issues a certification registering the company. This extends to the cease of the administrator of the company, the decision can´t be registered if the company has been discharged because of tax obligations. Therefore, the liability of the administrator remains until the company owes no taxes.
- Created on Wednesday, 11 April 2012 07:56
Abel Garriga. HOLTROP S.L.P Transaction & Business Law
The Spanish “Internet Law” Law on Information Society Services and E-Commerce (Ley 34/2002, known as LSSI) has been amended by Royal Decree 13/2012, March 30, published in the official journal of March 31st to comply with Directive 2009/136/CE, amending Directive 2002/58/EC on Privacy and Electronic Communications.
This amendment, though not being a significant change, merits a description and two comments, one on what has been done and another on what has not been done.
The prohibition of the practice of sending mail for the purposes of direct marketing which disguise or conceal the identity of the sender (article 7 of the Directive) is implemented in article 20.4 of LSSI.
The obligation to provide a valid address where the recipient may request that communications cease (article 7) is implemented in article 21.2 of LSSI.
The “cookie rules” of the Directive (article 5 of the Directive) allowing storage of information or the gaining of access of information already stored in the terminal equipment of a subscriber or user on condition that this subscriber has given its consent, having been provided with clear and comprehensive information, can be found in article 22.2 of LSSI.
Spanish regulation ads that this consent can be obtained automatically if the web browser of the recipient is already configured to give this consent, provided that the recipient has been able to do so expressly.
The amendment that merits the comment is article 31 LSSI, concerning the persons or legal entities entitled to bring legal proceedings on infringements regarding unsolicited communications.
Following Directive 2009/136, electronic communication service providers wanting to protect their legitimate commercial interests or those of their clients are entitled to a cessation action.
This means that any company whose products have been offered or trademarks used on such communications unsolicited communications are now entitled to such cessation action. Under Spanish civil procedure law (Ley de Enjuiciamiento Civil) this action is brought under the simplest procedure available, known as “juicio verbal”. This is a positive amendment since it widens the scope of natural and legal persons that can bring a cessation action through a simple procedure.
What has not been done relates to administrative sanctions on infringements. According to an established principle on sanction law, the conducts sanctioned have to be described. The issue arises when the prohibitions introduced by this amendment are not introduced in the description of the sanctioned conducts, thus raising the question about whether the infringement on these new prohibitions can be sanctioned.
As usual after an amendment, the debate is open.
Add a comment- Created on Monday, 02 April 2012 18:10
…we have been very busy at our Firm with litigation following the retroactive cuts of feed in tariff, and the moratorium of feed in tariffs in general in Spain.
Piet Holtrop, HOLTROP S.L.P. Transaction & Business Law
As expounded in various articles over the past year both RD1565/2010 and RDL14/2010 have rigorously limited the years during which photovoltaic power plants are entitled to feed in tariffs, and furthermore capped the amount of hours in which these are entitled so during the time that remains. These cuts have been put in place in flagrant violation of the applicable legal framework of Directive 28/2009/EC.
We sued the Spanish State for a damages claim representing almost 750 electricity producers who together own 1500 photovoltaic power plants in Spain on the 24th of November 2011. This claim results from the limit introduced by RD1565/2010, which reduced the duration of the FIT from possible 40 years to 25 years. According to Spanish Newspaper elEconomista the total number of plants claiming damages including our claim sums to 2000 (Edition 24-11-2011, section “Empresas” page 15). The 500 plants not represented by our firm were represented by Allen & Overy, Cuatrecasas and KPMG. The total value of these claims is of several hundred million euros. The claim is now to be resolved on an administrative level by the Council of Ministers of the Spanish Government, and ultimately by the Spanish Supreme Court, after previously obtaining a preliminary response from the Court of Justice of the European Union. We subcontracted Garrigues Medioambiente to produce an independent expert report establishing the damages incurred by our clients.
We started litigation against the capped hours FIT settling of the “Comisión Nacional de Energía” (The Spanish National Energy Regulator) filing objections against the settlements of the period running from August to December 2011. These settlements are done applying the polemic RDL14/2010. We did this for more than 4500 individual monthly settlements for installations owned by slightly over 1000 clients of our Firm. The value of these claims over the following years will increase to well over 150 million euros. This claim is to be resolved by the Spanish Audiencia Nacional, after previously obtaining a preliminary response from the Court of Justice of the European Union.
Last week we initiated litigation before the Spanish Supreme Court against the moratorium put in place by RDL1/2012. The moratorium was launched by the new Conservative Government and came entirely unexpected. The moratorium and the Directive 28/2009/EC are incompatible.
Currently we are being engaged by a group of around 150 PV producers to investigate possible criminal liability for certain elements of the legislative process of the Minister of Industry of the previous government, Mr. Miguel Sebastian. We will be publishing a report with our findings on the 13th of April (which is a Friday).
Our clients are both international and national, although technically speaking obviously all represented installations are national. In relation to the various stages of the mentioned law suits our Firm was covered by PV Magazine, SUN & WIND Energy, Solarthemen, Solarplaza and elEconomista.
Our small team of six attorneys and three administrative/technical staff has been able to cope with this through a use of some sophisticated and other less sophisticated software on our intranet. All our clients have online access to their files and can communicate with us on an online secure platform. We are regularly blogging on the ins and outs of these engagements and other issues which we consider relevant.
In the meantime we have also sponsored the English version of APPA’s study of the macroeconomic impact of renewable energies in Spain, as we do every year. You can download that study here.
- Created on Monday, 02 April 2012 12:31
Abel Garriga. HOLTROP S.L.P Transaction & Business Law
Piet Holtrop, HOLTROP S.L.P. Transaction & Business Law
Flights, rooms and of course the event are booked: we will be attending the 6th Corporate Counsel Exchange as a solution provider on 23rd - 25th of April 2012 in the Radisson Edwardian Heathrow Hotel in London. We're looking forward to it.
We is:
Piet Holtrop was born in the Netherlands, raised in Germany, and studied International Law in the Netherlands. He started his career as a corporate counsel at Kempen & Co Merchant Bank in Amsterdam in the late nineties, and lives in Spain since 2000, where is admitted at the Bar as an Attorney at Law (Abogado). He founded HOLTROP S.L.P Transaction and Business Law in 2008. Piet is multilingual and practices law in English, Spanish German and Dutch, but communicates comfortably in some other languages too. He likes to resolve complex issues in tight timeframes, and enjoys the personal contact with his client
Abel Garriga is a Spanish Attorney at Law based in Barcelona, Spain since 1995. After working in several medium sized firms, he joined HOLTROP S.L.P Transaction & Business Law as a Partner in 2011, to boost his negotiation practice and to reinforce the Firm’s litigation capacity. Abel focuses on the interface between IP law and technology. Abel provides hands on legal advice in English, French Spanish and Catalan, and feels comfortable in addressing legal and communication issues arising from intercultural environments. Abel is thorough, and balances speed, rigor, quality and agility. He reframes problems to get to the bottom of things.
We assist international clients in takeovers of Spanish companies in a wide array of sectors, from vineyards to electric power plants.
Regulatory affairs of Spanish Electricity Sector, with emphasis on renewable energies: We are currently representing over 1000 clients in a class action against the Spanish State for retroactively changing Feed in Tariffs.
Intellectual property and information technology issues: we are regularly invited to share our opinion on these issues in media platforms. Our clients are Spanish and international companies, some of which are listed.
We like to invent solutions that simplify things, and cherish independent thinking.
We're looking forward to meeting the fellow group members of the LinkedIn group, and of course all other attendees at the Corporate Counsel Exchange!
UPDATE 27-04-12: The event is over and here we were... looks a bit funny if you don't see the surrounding, nonetheless we had some very constructive meetings in this little booth:
- Created on Sunday, 01 May 2011 18:54
- Last Updated on Tuesday, 10 April 2012 19:49
Abel Garriga. HOLTROP S.L.P Transaction & Business Law
Second episode.
1. The case
As explained in our previous post, PADAWAN, S.L. runs a shop selling all kind of items related to computers, from hard drives and USB pen drives to spare parts of PC to DVD’s and CD’s. Therefore and according to the system explained in our first post, it had to pay the levy for the selling of those items. When SGAE required this shop to pay the amounts due by the levy to compensate the private copy, the shop refused to do so and SGAE sued PADAWAN, S.L. claiming the amounts due between November 2004 and January 2006, a total of 18.084,70 € .
Add a comment- Created on Tuesday, 26 April 2011 15:08
Marysol Claver. HOLTROP S.L.P Transaction & Business Law
Last July 30th 2010 the Spanish Ministry for Industry (MYTIC) sent a proposal to the CNE for a new Royal Decree regulating the grid connection of small electricity production units. Last April 19th 2011 MYTIC sent a new version to the CNE for evaluation, we are currently studying this document, to which we have had access through APPA. APPA is member of the consultative committee, and will deliver its comments to the MITYC.
We spoke to MYTIC today; the publication of the new proposal is expected on the website of the MYTIC the coming days. We will be posting on the new proposal the coming weeks.
UPDATE 10-05-11: Since at MYTIC the web-refreshing-rate is fairly slow, to put is mildly, and the text of the proposal has been leaked all over the web, I don't want to deprive you of it. Here is a link to the website of suelosolar, with the proposal in word format.
We are working on a post on this proposal.
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- Created on Tuesday, 12 April 2011 15:13
Piet Holtrop, HOLTROP S.L.P. Transaction & Business Law
The action was brought before the court on February 11 2011, and the issue at stake are valuation rules. According to the European Commission, Article 17(1) of Royal Legislative Decree 4/2004 of 5 March approving the consolidated text of the Law on Corporation Tax, the Kingdom of Spain has failed to comply with its obligations under Article 49 of the Treaty on the Functioning of the European Union and Article 31 of the Agreement on the European Economic Area.
The provision at issue introduces special treatment for unrealised capital gains on assets of companies that transfer their residence to another Member State of the European Union, cease their activity in Spain in order to continue it in another Member State or transfer their activities to another Member State. In those cases, Spain taxes the unrealised capital gains at the time of exit, so that the affected companies must settle a tax debt in respect of unrealised and hypothetical revenues which may never be realised. That regime amounts to an exception to the normal rule according to which tax is levied
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