Luxembourg, 08/06/2001 (Agence Europe) - The Court of First Instance of Ghent will itself have to put an end to an uncertainty surrounding the Belgian law of 1990 on insider trading. Belgium punishes an insider trader who has unintentionally exploited privileged information, whereas the European directive of 1959 demands that he had deliberately wanted to exploit this information. The Belgian legislation is thus more severe than the directive but may be authorized on condition that this severity applies to all companies. Yet, in Belgium, information at the disposal of a holding company is not regarded as privileged information. The Court in Ghent had asked the European Court of Justice if this treatment between companies rendered the Belgian law incompatible with the directive, thus inapplicable to a presumed "criminal", Jean Verdonck, prosecuted for insider trading.
Director of the company Ter Beke NV, Mr. Verdonck had bought shares in Ter Beke in February 1996. In March, the shares increased by 15.3% after Ter Beke had made public a statement of its intention of taking over Chilled Food Business, a branch of Unilever Belgium.
The Belgian Government claimed that the Belgian law had general application, the provisions on holding companies being purely technical, due to the very nature of that type of company. Mr. Verdonck claimed that as holding companies benefited from a better system, the severity of the Belgian law was not general, the 1990 law "illegal" and not applicable to him. The Court stipulates that it is up to the Belgian judge to take a stance and rule between these two interpretations which each have their partisans and adversaries in Belgian legal circles.
The Netherlands condemned for not having taken adequate measures to combat pollution in the Escaut basin as demanded of it by the European directive combating hazardous substances in water. The Court rejects the Dutch excuses claiming "scientific difficulties in identifying toxic substances the content of which the authorities were held to monitor".
Another condemnation for the Netherlands: it has not completely transposed the European directive of 1993 on abusive clauses in contracts concluded with consumers. The Dutch government stated that the EU Treaty allowed Member States total freedom in the choice of forms and means necessary to transpose the directive. That's true, the Court replies, but on three conditions: national legislation must guarantee full implementation of the directive; the legal situation must be clear and precise; the beneficiaries must know "all their rights". Especially, it stipulates, when the directive is aimed at "protecting citizens in their role as consumers". The Dutch legislation is not clear and precise enough, the Curt observes.
In addition, Italy could not itself decide on its own transitional period of liberalizing road transport. According to the 1992 directive, all Member States had to free all quota and authorization schemes for combined transport (trucks/trains or trucks/boats) at latest by 1 July 1993. The Italian Government admitted that its decree of 1992, which transposed the directive into Italian law was contrary to the directive, but claimed that its decree in force since 1 January 2001 was beyond all reproach. The "short interim period" in which it was not in compliance had led to no inconvenience for operators", it explained.
In another case, the German and French customs did not agree with importers in the tariff classification of their merchandise. A baby-carrier is not a rucksack, said the Court. In a baby-carrier, it is the material that composes it, assembled by solid stitching, that constitutes the essential elements of a baby-carrier. The carrying of a child by an adult does not necessarily involve the presence an aluminium frame which is there more for the comfort of the baby or the adult. The company Vau De Sport will have to side with this Court's opinion, which was that of the German customs. And pay higher customs duties than it expected.
Finally, let's mention the Balguerie case, regarded as sound sense by experts, but important for the interested party, Edouard Balguerie, customs broker who had re-packaged batches of dates from the United States. The re-packaging of dates in smaller packets, within the same range of weight which would allow him to benefit from reduced customs duties, cannot be a presumption of fraud, contrary to what the French authorities claimed.