Netherlands Equine Law Schenkeveld

31/08/2020

The following reminder for all horse entrepreneurs. As of September 27, 2020, the obligation applies for (almost) every entrepreneur included in the Trade Register to pass on the company's UBOs to the Trade Register. UBOs are the natural persons who directly or indirectly have more than a 25% interest in the company. Note that a UBO is often also a shareholder, but does not have to be. If there are no UBOs, pseudo UBOs must be passed on. Failure to provide correct information can be an economic offense. A transition period of 18 months applies to existing companies. Make sure that the UBO register can be consulted by the entire public. It is not possible to inspect which persons have consulted the UBO register. How often it was checked .. By combining the UBO register with the annual accounts that most companies have to publish, it quickly becomes clear to third parties how wealthy the UBO is. Protection can only be requested if the UBO is a minor or if there is a disproportionate risk of fraud, kidnapping and blackmail (this only applies if you are protected by the government). It is not possible to invoke the GDPR. You have no right to privacy in this regard. The purpose of the UBO Register is to get a grip on terrorist financing and money laundering. It applies to all companies established in the European Union. It does not apply to non-EU companies.

27/05/2020

In the judgment of the District Court of Gelderland on 1 April 2020 the liability for damage caused by a horse was discussed. The judgment was about a horse that was examined clinically and radiologically by a vet. While taking the X-rays, the horse had kicked against the X-ray equipment. The X-ray equipment was damaged. The repair of the X-ray equipment cost EUR 26,850. The insurance of the vet reimbursed the costs. The insurance then claimed the damage costs at the owner of the horse because, according to them, she was liable for it. The owner's insurance had declined her liability.

Article 6:179 BW states that the holder of a horse is, in principle, liable for the damage caused by the horse. In this case the holder was also the owner. This article contains a clause, in which case the holder is not liable after all. The clause implies that the owner is not liable if she would not have been liable to the vet for the damage if she had controlled the horse's kick. That situation would be the case if the horse could kick the X-ray equipment without this being unlawful against the vet. The judge determined that this situation was not the case here.

In addition to the appeal about the clause, the owner stated that it was not her who was liable, but the vet was, because during the examination the veterinary practice used the horse for their practice purposes (Article 6:181 BW). If a horse is used for the purposes of a business (for example, a riding school), the liability for damage caused by that horse rests on that business. In that situation the owner is not liable. However, the judge determined that the vet had only researched the horse and had not used the horse for its own benefit. Therefor the owner was liable.

You can read the judgment (in Dutch) through: https://bit.ly/2XCwdRI

04/05/2020

Dutch Equine law: Another remarkable judgment. This is the judgment of the Sub-District Court in Noord-Nederland of 26 November 2019 about the purchase of a young Spanish stallion. The buyer of the horse had to prove that the horse did not meet her expectations, because he was not ridable.

In the context of the burden of proof, the buyer submitted videos of the horse and presented herself as a witness. She stated that the horse had no balance due to irregularity and therefore could not be ridden. According to the buyer, the videos show that the horse moves irregularly. Because the buyer is a litigation party, her statement has only limited evidential value and can only support other evidence, according to article 164 paragraph 2 Rv. The videos also have a limited evidential value, as they can only be used with the explanation of the buyer. The judge is not an expert who can judge the videos of the horse. The buyer had not appointed an expert to judge the videos. With this evidence the judge can therefore not conclude whether the horse can or cannot be ridden. As a side note, the judge states that there may have been something wrong with the horse at the time of the purchase and the pre-purchase examination may have been too limited in that regard. In this case it is at the risk of the buyer that, in consultation with the vet, she has bought the horse on the basis of what was examined. She saw no reason for further examination and therefore she did not do so. This is at her risk. It has not been established to prove that the horse can’t be ridden and therefor did not have the qualities that the buyer could expect based on the purchase agreement.

If you have the burden of proof and you want to prove that the horse does not have the qualities you could expect, you should have your evidence assessed by an expert. You may be able to support the expert's statement with your own statement as a witness, but a single statement from you as a party is insufficient.

You can read the judgment (in Dutch) through: https://bit.ly/3d38Wyq

15/04/2020

An interesting judgment by the district court Overijssel. X owned a horse, which he sold to buyer. Buyer leaves the horse with X for training. X then placed the horse for training at A. Then X goes bankrupt. The curator is of the opinion that the horse is (still) owned by X and wants to sell it. However, buyer believes that he is the owner. Buyer wants to prove this by means of a sales confirmation and proof of payment. X has also stated that he sold the horse to buyer. However, for transfer of ownerships a delivery is required. The horse was not delivered to buyer after the sale, but stayed with X and later went to A. X continued to pay all costs for the horse and was also listed as owner on competition lists. Furthermore, the payment by buyer was not made according to the agreed arrangement an there were mistakes in the proofs of payment. Because al foregoing, buyer has failed to prove that he has become owner of the horse.
Read the judgment (in Dutch) through: https://bit.ly/3e6bZY5

30/03/2020

On April 20, 2018 a Grand Prix dressage horse from Portugal was sold to a professional Dutch dressage rider for more than EUR 1 million. Before the purchase the horse was very successful and participated in the European Championship in 2015. A Dutch vet checked the horse before purchase on April 3, 2018. During this inspection the main vet of the seller was also present. Despite the fact that the main vet indicated that the front right hoof joint was checked several times in 2017, the Dutch vet did not look at these reports. During the purchase inspection the horse did not show any sign of lameness and a positive purchase advice was given. In the purchase agreement the parties had appointed the Oost-Brabant District Court, declared Dutch law applicable and excluded the Vienna Sales Convention. A few days after the purchase the horse appeared to be lame in the front right. This was confirmed by a vet on April 25, 2018. The seller was informed by e-mail and the buyer indicated that she wanted to undo the purchase. After that the horse got colic and was put down on May 27, 2018 during an operation. The buyer avoided the purchase agreement on the basis of an error regarding the hoof joint and other factors and demanded the purchase price to be refunded. According to the buyer, the seller had withheld information. The judge determined that the medical reports were available, but that the Dutch vet chose not to study these reports. Therefore there was no incorrect or incomplete information given by the seller. Alternatively the buyer claimed dissolution of the purchase. The seller referred to the following clause in the purchase agreement: “The Buyer declares to accept the Horse upon delivery in the condition in which it is found at the time of delivery”. According to the seller this clause indicated that the visible and invisible defects had been accepted and that an appeal to error could not succeed. This was a so-called prompt delivery. The District Court ruled that the buyer had not stated why an appeal on that clause should not succeed. The judge determined that the horse was accepted by the buyer on April 20, 2018 in the condition it was in at the time of delivery and that therefore she could not avoid nor dissolute the purchase. The Dutch dressage rider was unsuccessful. Prompt deliveries are legally very dangerous. Consumers are legally protected, but that was not the case here. Pay attention, especially if the horse has a medical history.

You can read the Dutch judgment of the Oost-Brabant District Court on March 4, 2020 here: https://bit.ly/39tBsY7

11/03/2020

Dutch Equine law: Another remarkable judgment. The Arnhem-Leeuwarden Court of Appeal determined on the 25th of February 2020 (https://bit.ly/2THgfoT) that a sold mare did not comply with the agreement. Three months after the delivery the mare appeared to be lame. This may not have been discovered before because during the purchase the mare was treated with the medicine Prednisolon for skin problems. The vet declared that this medicine can mask lameness. A report from that vet also showed that the mare already had fragments before the sale. The fact that the seller was also unaware of the lameness is, according to the Court, irrelevant: “even when he did not know it, he was a seller who failed to meet the contractual obligations because he delivered a horse that did not have the qualities that [appellant] could expect: a healthy, not lame horse”. The judgment is so unfortunate because the seller had won in the first instance and had no more money for the appeal. Therefor he only referred to his previous propositions. The buyer had the burden of proof, at the moment of purchase the horse walked fine and afterwards also, even some time after the delivery the horse went nuts in the paddock and there was no indication that the lameness had anything to do with the fragments. How can the Court of Appeal establish with reasonable certainty that the horse was lame at the time of delivery and punish the seller who was not financially powerful? This again calls for specialized equestrian judges!

24/02/2020

Dutch Equine Law: on February 20, 2020, the Bundesgerichtshof, the highest court in Germany, ruled in a case about who is the breeder of a foal. It was a foal from Weihegold OLD, the mare who is very successful in dressage under Isabell Werth.

In 2011 the mare was trained by Johann Hinnemann. In exchange for that training, Hinnemann has bred a foal through embryo transplantation. He placed the embryo in one of his own mares. When a foal was born, Hinnemann registered himself as a breeder. The owner of Weihegold could not agree. She was of the opinion that, as the owner of the mare, she is the breeder of the foal. The Bundesgerichtshof, like the lower judges, disagreed with her and ruled that Hinnemann is the breeder of the foal.

According to the Bundesgerichtshof, the breeder is the person who makes the choices in the breeding process. In this case the mare stood in the stables of Hinnemann, he chose the stallion himself and is also the one who paid for the entire process. That is why Hinnemann is the breeder of the foal.

Are you in a situation that is comparable to that of the owner of Weihegold and do you want to be registered as a breeder? Make clear agreements about this.

11/02/2020

Equine law: Nice “Comment” at Supreme Court, 15 February 2019. Only at the Supreme Court did well: a dressage horse is being purchased. Problems from the outset. The buyer has a physiotherapist come in. The buyer - a consumer - does not complain to the seller. Only ten months later does it appear that the horse has kissing spines in the back that should have led to the problems. The buyer now wants his money back from a professional seller. The question is whether the buyer has complained within a reasonable time. If not, he loses the case anyway. Based on Article 7:23 of the Dutch Civil Code, the consumer must complain within a reasonable time after he has discovered the defect. According to established case law, the buyer has discovered the defect if he had to assume with sufficient certainty that the bought object did not comply with the agreement. What was that moment in this case? When the physiotherapist came or the moment the vet said the horse had kissing spines? The buyer says he only discovered it after the vet's examination. The District Court and the Court of Appeal agreed with the seller: complaints should have been made the moment the physical therapist was called in. At that time, the buyer should have complained. The Supreme Court does not follow the Court of Appeal and the District Court. The Supreme Court says that the Court of Appeal has not provided sufficient insight into which criterion the Court of Appeal has “used” and that the Court's judgment is not sufficiently substantiated. Simply put: in this case it should have been assumed that the consumer discovered the defect after the vet's examination. Only then he could have established with sufficient certainty that the agreement had not been complied with. Good reasons must be given for determining an earlier moment. They were not given and therefore the judgment was wrong, The case has then referred been back to the Court for further consideration in accordance with the judgment of the Supreme Court. We do not yet know the outcome. Read the verdict here: https://bit.ly/31RhRyQ.

23/01/2020

Dutch Equine law: Do you mediate in the sale of horses? Make sure that you inform the buyer and seller in advance that you are acting on behalf of the seller on the basis of a power of attorney. If the seller is a consumer and you are a professional then add that the seller/ owner is a consumer.
If you do not mention this, it is possible that you will be held to be the seller in a legal proceeding and, if you are a professional, you will have the burden of proof during the first six months on the basis of European Union law. If the power of attorney is clear but you do not report that the owner is a consumer, the owner is considered a professional if you are a professional. No one wants that. You can confirm this in writing as follows (for example in WhatsApp) and possibly combined with other conditions:

To seller/owner:

Dear (name seller),
We have agreed that I will sell the horse (horse's name) for you. I hereby confirm that we are selling on the basis of a power of attorney. PROFESSIONAL SELLERS: In addition, I will report to the potential buyer that you are a consumer and not a professional seller.

To buyer:

Dear (name buyer),
You contacted me about the horse (horse's name). We are selling this horse on behalf of the owner on the basis of a power of attorney. PROFESSIONAL SELLERS: The seller is not a professional. It concerns a consumer.

If you send this and save the message in a proper archive, you will not be held liable as the seller if the purchase goes wrong and the seller/owner - if he is a consumer - does not have the burden of proof.

16/01/2020

Dutch Equine law: our Equine law section works closely together with the Sports law section of Schenkeveld Advocaten. Yesterday, the KNSB Disputes Committee ruled in favor of the KNSB with regard to the selection of Kjeld Nuis for the World Championship in Salt Lake City. The KNSB was represented by Colin Burger of our office. The decision clearly points out how the Committee checks the decision of the sport association KNSB: the Disputes Committee can only check whether the SCL could reasonably reach this decision within his competence. According to the Disputes Committee, the KNSB met this test. We wish Kjeld Nuis and Jesper Hospes (World Cup Calgary) lots of success in the upcoming competitions.

Link to the KNSB website:

Verweij en N’tab probeerden via de Geschillencommissie alsnog kans te maken op een startbewijs voor de WK Afstanden in Salt Lake City, op respectievelijk de 1500 en 1000 meter. Mulder vroeg om een ticket op de 500 meter voor ISU World Cup 5 in Calgary.

14/01/2020

The pets and hobby animals list.

The Dutch Animals Act describes that it is forbidden to keep animals that are not approved by the minister. There will be a new list that determines which animals are approved to be kept in a domestic context in the Netherlands. That list replaces the Domestic Animals Positive List of 1 February 2015 that lost its force on 28 March 2017. Around 260 mammals will be assessed in the coming months. An assessment framework has been developed based on Article 1.4 of the Animal Husbandry Decree. The assessment framework contains risk categories based on risks to human and animal health and welfare. Among other things the risk categories contain: the possibility to transmit diseases, dangerous behavior and the possibility to guarantee the welfare of a captive animal. An animal can score negatively in several risk categories. The number of risk categories per species determines the degree of danger and is subdivided into risk classes A - F. The species in class A represent the least danger and species in class F the most. Whether or not the animal will be added to the list is not yet certain. The minister has to determine when the risk of a species is acceptable to be kept. The draft is expected to be published after the summer of 2020. As soon as it is available we will share it with you.

If you keep a mammal in The Netherlands as a domestic animal and you are wondering if your animal is being assessed, you can check the following list: https://www.rvo.nl/sites/default/files/2019/12/Alle-zoogdiersoorten-die-in-Nederland-worden-gehouden-1.0.pdf. A similar list for birds, reptiles and amphibians is not yet available.

Is your domestic animal not listed? Then make a notification here: https://mijn.rvo.nl/dieren-voor-de-huisdierenlijst-melden. If you do not notify, then the animal will probably not be listed and cannot be kept afterwards in The Netherlands (unless of course someone else notifies).

The ferret is currently missing from the list. Do you keep a ferret? Then we advise you to make a notification.

16/12/2019

Dutch Equine law: a recent judgment by the district court Noord-Nederland. Buyer bought a horse from seller. Buyer wanted to terminate the sale, because the horse was unsuitable to be ridden. To prove this, she delivered an examination by the Utrecht University that shows the horse has a defect. In an interim judgment, the judge considered this did not prove that the horse was unsuitable to be ridden. Buyer got an order to produce evidence. Buyer then delivered her own statement and a USB-stick with video images. The court considers this insufficient to prove the horse could not be ridden. The judge was unable to conclude anything form the images, because he isn’t an expert in that area. Therefore, the judge can only go by the buyers statement. This is not enough to come to the objective opinion that the horse was unsuitable to be ridden. The claims of the seller are denied.

This judgment once again shows how important it is to deliver sufficient proof. A statement of a person testifying on his/her own behalf, such as the statement by the buyer in this case, has limited evidentiary value. It can only serve as support of other evidence. With a statement by a vet or other expert, this case could have ended very different.

You can read the judgment (in Dutch) through: https://bit.ly/2ElT9LR