Alliance partner Katrien Beelen wins case and purchase agreement dissolved

Clients had purchased a horse for their daughter to compete with. After the horse was delivered to the clients in Canada, it turned out that it had a shivering disease. This makes the horse unsuitable for intended purpose of the purchase agreement. This was the reason why clients wanted to annul the purchase agreement.

Katrien Beelen successfully argued on behalf of clients that it was a consumer purchase whereby the horse showed a defect within two years of delivery, for which the seller was liable. The Antwerp (BEL) Court of Appeal shared the clients’ view. As the horse is suffering from an incurable disease which makes it impossible for it to function normally, the horse is not suitable for the use for which it was purchased.
The Court dissolved the purchase agreement and orders the seller to repay the purchase price.

Humanity is far from the norm in Lausanne

Luc Schelstraete and colleague Piotr Wawrzyniak were brought on board by Hermès’ owner Joop van Uytert in the case between the KNHS and the FEI concerning the rejection of Hermès’ registration for the Olympic Games. Schelstraete, who not for the first time found himself face to face with the FEI, saw this rejection coming. “As an experienced legal counsel in this field, I was afraid this would happen. As a person, however, you would hope for some measure of compassion and humanity from Lausanne. It was not to be.” Participation is now out of the question, but this is not the end of the story. Schelstraete still has some aces up his sleeves. Schelstraete announced on behalf of Joop van Uytert that further legal action was to be expected, and the KNHS represented by the director of top sport Iris Boelhouwer did not exclude joining this further legal action.

Hope

Schelstraete took some measure of faith in the CAS from the case that he and Wawrzyniak won in the Karlsson case at the CAS. “You would think they would be aware of their own jurisprudence and act on this in cases that follow. In the Karlsson case, the CAS protected the athlete’s position, judging that the FEI cannot hold other parties such as the athletes, organisers, or the French Equestrian Federation accountable for the FEI’s errors and mistakes.

Appeal against FEI Tribunal decision

But this turned out to not be the case. The CAS verdict came back ‘rejected’ to the request for an interim injunction. So what is next? An appeal against the FEI Tribunal decision has already been filed, “This has to be processed within ten days of the original decision.”

Holding both the FEI and Ingmar de Vos liable

But that is not all. Pending the CAS verdict about the interim injunction, Schelstraete has held the FEI and its president Ingmar de Vos liable for the mistakes made by the FEI in the database. “The files provided by the FEI for debate in the FEI Tribunal clearly show that they are responsible for the error regarding the nationality of Joop van Uytert in the database. I have summoned the FEI and president Ingmar de Vos to correct that mistake by 17.00 this evening.” Schelstraete does not expect much to come out of this. “Knowing the FEI, they will do nothing.” Schelstraete also tried to move the FEI in ‘the right direction’ through Frank Kemperman, chairman of the FEI Dressage Committee. He gave no response.

Second ace

Schelstraete’s second ace is a civil lawsuit in the Netherlands. “The FEI always supposes that a Dutch court shall have no jurisdiction and that cases against the FEI always have to be handled in Switzerland. But in the case of an unlawful act (tort), a judge in the country where the damage was suffered also has jurisdiction. I would very much like a Dutch court to have a look at this case.”

Dual interest

In this case, there is a dual interest, in addition to the sporting interest of the Dutch national dressage team (which is considerable: theoretically, Hermès was a big asset to the team that would have markedly increased the chances of a team medal), there is also the interest of Joop van Uytert as a stallion owner. A breeding stallion that went to the Olympics of course would be of much higher value than a breeding stallion that was turned away from the Olympics.

Incredible

Schelstraete thinks this case is an incredible shame. “Imagine your city council accidentally registers you as a Polish or Russian national. There is just no way.” The FEI did just this, however, and the international equestrian federation will not budge. “Of course they know that in case of any trouble, they will find a warm welcome at the FEI Tribunal. We recently did the rounds of the various offices and concluded that the FEI Tribunal has recently never ruled against the FEI in any of their cases. Statistically, this is just wrong.”

KNHS never suggested Tribunal candidate

About whether or not the KNHS ever noticed before that Joop van Uytert was registered as a German national, Schelstraete said; ‘you can certainly form an opinion on that’. But neither has the KNHS ever taken action to look after their own (and particularly their athletes’) interests on the FEI Tribunal. “Every national federation can put forward candidates for the FEI Tribunal. The KNHS has never made use of this. That creates this situation where people from Mexico or another non-dressage nation sit in judgment. People who are far detached from the actual reality of the sport. This quickly became apparent in the Karlsson case; the members of the Tribunal had no insight whatsoever into the actual inner workings of the jumping sport.”

Source Horses.nl

Photo by Hippo Foto

No injunction, Hermès definitively out of the Games

It is the end of the line for Dinja van Liere and Hermès. Participation in the Olympic Games is now definitively out of the question for Joop van Uytert’s nine-year-old stallion. CAS did not grant an interim injunction, and therefore the KNHS will not be able to register Hermès before the deadline at midnight tonight.

CAS has so far not provided reasoning for its decision to deny an injunction. “You are given a note with a single sentence: rejected. No explanation, nothing,” says lawyer Luc Schelstraete, brought on board by Hermès’ owner Joop van Uytert in this case between the FEI and the KNHS.

Schelstraete says he has a few aces up his sleeves as far as further steps are concerned, but he does not expect the results to force a change in time for the Games. “Knowing the FEI, they will do nothing to correct their mistake and register Hermès properly after all.” The case and this story will be continued…

Source: Horses.nl

Olympic champion Van Liere’s fate in CAS’ hands

Just imagine. As an athlete you have a good chance to go to the Olympics, but because of an administrative error by someone else you may miss it. It happened to dressage rider Dinja van Liere.

When handing in the paperwork for ‘Tokyo’, it appeared one and a half week ago that the owner of her horse Hermès was registered as a German at the international equestrian federation FEI. The FEI has admitted to sister organisation KNHS that a mistake was made when digitising their own administration. But, according to the federation, Van Liere and the KNHS should have checked whether Hermès had Dutch nationality. The responsibility lies with them.

According to Joop van Uytert, the owner of Hermès, the mistake was made because he owned a horse together with the German horse breeder Paul Schockemöhle: Diarado. When Schockemöhle introduced his hometown Steinfeld into the new FEI system, he was carried along in his slipstream. “I never gave the order to change my place of residence,” says Van Uytert, who compares the course of events with the Dutch benefits affair, in which parents were wrongly accused of fraud by the tax authorities and were only proven right years later. “Actually, what happened is impossible, but it happened anyway,” he says.

Because the FEI did not want to cooperate with an emergency procedure to correct its own mistake and allow Van Liere to participate in the Games, KNHS asked the sports tribunal CAS for a so-called interim provision. The ruling requests that Hermès be temporarily renamed a Dutch horse and that the case be heard before mid-July, when the horses are put on a plane to Tokyo. Hermès would then go into quarantine until the ruling.

Should the KNHS fail in their appeal – and that will become clear on Monday morning – the federation and Van Uytert can take further steps through the civil courts or CAS. According to Luc Schelstraete, Van Uytert’s lawyer, the latter is certainly possible, because if Hermès does not compete in Tokyo due to an administrative error, not only the entire dressage team will suffer, but also his client. Hermès is a breeding stallion. The ‘higher’ ranked he is, the greater the interest in his semen. According to Schelstraete, going to court is a long and complicated process. “But we think the CAS should correct.”

Iris Boelhouwer, director of top sport at the KNHS, does not exclude that the federation joins Schelstraete in a follow-up procedure, should the CAS come up with a disappointing decision on Monday. She has been ‘foaming at the mouth’ the past few days about the state of affairs. According to her, the FEI is reacting out of fear, because the association is afraid of setting a precedent. “In the past they have rejected many cases. What if they all have to be reviewed later on?”

The financial consequences of the administrative error could be huge for Hermès’ owner, but the primary focus now is on Van Liere, who according to national dressage coach Alex van Silfhout has made ‘super progress’ recently. He will announce his selection for Tokyo early this week, after the CAS decision, but hinted that Van Liere had a great chance to go to Tokyo as number three, along with Edward Gal and Hans Peter Minderhoud. “By something silly her Olympic dream could be wiped out,” he said. “It’s unimaginable that the FEI is more concerned about the rules than what this issue is doing to the sport.”

Source NRC

Photo by Hippo Foto

Summary procedure won: horse of client returned

In this case, Schelstraete Lawyer’s client had brought her horse to the counter party’s yard for boarding and training in early 2020. Over a year later, the client terminated the boarding- and training contract and asked the counterparty to return her horse. However, the counterparty refused to deliver the horse. The counterparty submitted all kinds of claims, appealing to their right of retention. These claimed had never been brought up by the counterparty before. There was also no connection at all between the client’s request for the return of her horse and the claims by the counterparty.

As a result, Schelstraete Lawyers opened summary proceedings for the client, requesting that the horse be returned.

The court followed Schelstraete Lawyer’s argumentation. The court determined there were urgent interests on the part of the client, given the breach of her property rights by the counter party’s refusal to return the horse after the boarding- and training contract was terminated. The court also determined – after extensive debate and exchange of documents – that there was insufficient clarity about the existence of the counterparty’s claims. In addition, the court also judged that, contrary to the counterparty’s statements, the counter party had no claims against the client. The courts appointed the claims of the client, denying the counterparty’s claim for the refunding of boarding- and training expenses made after the termination of the contract.

Schelstraete Lawyer’s client was advised by mr. Irma Uwe-Ntukabumwe

Photo by Hippo Foto

Schelstraete wins enforcement of summary proceedings

The judge in preliminary relief proceedings of the District Court of Almelo recently allowed the enforcement (execution) of a judgment obtained on appeal in a judgment dated 7 May.

After years of legal dispute, the client of Schelstraete was completely vindicated on appeal. The Court of Appeal was of the opinion that the client had validly invoked the annulment of a purchase agreement because the horse purchased was afflicted with a serious defect (in coordination of the hind legs), as a result of which the horse could not be used for dressage. The court ordered the seller to repay the purchase price of €55,000 and to pay damages. This amounted to more than €100,000. After payment, the seller was to collect the horse from the client and take possession of it.

However, the seller refused to make payment. This was because the horse had died of colic before the court made its final decision. The client assigned her claim by virtue of the judgment to a third party (assignment), who then proceeded to enforce it by means of seizures. The seller subsequently instituted summary proceedings against the client (and not against the enforcing third party). In these proceedings he claimed the suspension of enforcement.

The judge in preliminary relief proceedings saw no reason to suspend enforcement. The final judgment of the court of appeal was the starting point for the assessment. This judgment expressly established the seller’s payment obligations. This did not apply to a restitution obligation of the client. The judge in preliminary relief proceedings did not anticipate a possible legal remedy against the final judgment or the discussion in new proceedings about the death of the horse. The judge in preliminary relief proceedings was also of the opinion that the seller had summoned the wrong party. He should have summoned the enforcing third party.

The conclusion was that the seller had to fulfil his payment obligations.

The judgment of the court in preliminary relief proceedings has been published on rechtspraak.nl:
http://deeplink.rechtspraak.nl/uitspraak?id=ECLI:NL:RBOVE:2021:1937

The client was assisted by L.M. Schelstraete.

Mathilda Karlsson’s successful appeal to the CAS against the FEI

Mathilda Karlsson and Sri Lanka Equestrian Association prevail in their appeal to the Court of Arbitration for Sport (CAS) in Lausanne, Switzerland against the FEI.

The CAS sets aside the decision of the FEI Tribunal and the FEI Secretary General and reinstates the Olympic rankings of Mathilda Karlsson.
The CAS also reconfirms that Mathilda Karlsson as athlete bears no fault or guilt in the matter.

The CAS protects the position of the athlete and rules that the FEI may not keep other parties like the athletes, the organiser of the French Federation responsible for its own errors, mistakes and faults. The CAS observes that the FEI’s own negligence caused the rule violation in the approval process of the official schedules of the Villeneuve-Loubet events. Therefore, the FEI must stand in for the consequences. The CAS holds that numerous different deadlines applicable under the FEI’s rules and regulations are not easy to understand and it cannot be expected from a rider who reviews the schedules that he or she readily discovers a mistake that two federations (FEI and the French NF) with professionally equipped administrative bodies have overlooked. According to the CAS the FEI as the supreme regulatory body of the equestrian sports must observe utmost care in the approval process of the schedules. Important to note is also that the CAS cleared the organizer of the Villeneuve-Loubet of all unfounded charges and allegations confirming that the organiser handled in full compliance with the applicable FEI Rules and Regulations.

As a consequence of the CAS decision an individual quota place for the Jumping Competition at the Tokyo 2020 Olympic Games to take place in July-August 2021 is now confirmed in favour of Mathilda Karlsson.

Mathilda Karlsson and Sri Lanka Equestrian Association were represented by Mr Luc Schelstraete and Mr Piotr Wawrzyniak of Schelstraete Law Firm from the Netherlands.

They comment the case as follows: It is a landmark decision for the equestrian sports as this CAS decision illustrates that the FEI’s discretionary powers are limited and that the FEI needs to observe utmost care in approving equestrian events where ranking points are to be earnt. All this for the benefit of the riders. For further enquiries please contact Mr P.M. Wawrzyniak at p.wawrzyniak@schelstraete.nl or +31 13 511 44 20.

CAS 2020/A/7232 Mathilda Karlsson & Sri Lanka Equestrian Association v. FEI dated 19 April 2021

Photo by Hippo Foto

FEI has decided to increase the number of starting places in St. Gallen

The Longines CSIO St. Gallen (3-6 June) will host this year’s first FEI Nations Cup™ competition after the long enforced break due to  the Corona virus. As there were no nations cups last year and several CSIOs have been cancelled this season, the FEI has decided to increase the number of starting places in St. Gallen from eight to ten.
As Sweden’s nations cup at Falsterbo, Great Britain’s nations cup in Hickstead and Ireland’s nations cup leg in Dublin have already been cancelled for this year due to the pandemic, the FEI wants to offer more starting places at the competitions that can take place and distribute the places as evenly as possible.
This means that France’s originally entered team in St. Gallen will be replaced by Italy and that in addition to Brazil, Germany, Great Britain, Mexico, the Netherlands, Sweden and Switzerland, Egypt and Norway will also be competing for victory at the 25th nations cup in Switzerland.

Source Spring-reiter.de

Photo by Hippo Foto

Olympic dressage rider Inna Logutenkova wins proceedings over payment of commissions

Recently the court ruled in favour of a client of Schelstraete Lawyers, named Inna Logutenkova, in a case about unpaid commissions in connection with the sale of horses. Inna Logutenkova trained six horses for a former owner of an equestrian training centre in North Brabant. The purpose of the training agreement was that Inna Logutenkova would participate in the Olympic Games in Tokyo 2020 with at least one of the horses. Part of the training agreement was that Inna Logutenkova would receive 10% of the sales price as commission when one of the horses was sold. To Inna Logutenkova’s surprise, the former owner sold all six horses without her knowledge and then refused to pay her the agreed commission.

Inna Logutenkova was successful in proving that there was a binding agreement between the parties regarding the commission, which was due from the sale of the horses. The court therefore disagreed with the former owner, who argued that any agreement with Inna Logutenkova had ended with the sale of the horses. It ruled that the former owner was liable for the payment of the agreed commission. Schelstraete Lawyers successfully seized the former owner’s property. Following the court’s ruling, all commissions owed to Inna Logutenkova were settled.

The client was assisted by Piotr Wawrzyniak & Joelle Bongers.

If you would like more information or advice on this matter, please feel free to contact us.

Important Publication from the FEI Regarding the Case of our EUAEL Alliance Partner Vincenzo Giardino

“Dear Athletes,

Following recurring cases in which human medication excreted via urination in horses’ stables has resulted in horses testing positive for prohibited substances, the FEI Tribunal has urged the FEI and all athletes to reinforce the information and education provided to support personnel about this avoidable contamination risk.

This advice is particularly relevant for all athletes right now. It is not always possible for an athlete to prove no fault or no negligence in order to eliminate or reduce the standard sanction and, while the FEI is proposing greater flexibility for applicable sanctions in contamination cases to be voted on at the online FEI General Assembly in November, equine contamination through human urination is completely avoidable.

In the most recent case of this type, for which a Final Decision was issued on 26 August, the athlete was able to establish that the prohibited substance entered the horse’s system through the ingestion of straw bedding contaminated through urination by the support personnel.

In its Decision, the Tribunal stated that it is “concerned regarding the number of recurring cases where urinating in the horses’ boxes led to cross contamination of those horses. In the view of the Tribunal those are clearly cases which could easily be avoided if all stakeholders in equestrian sport were properly educated about the risks of this kind of contamination. The Tribunal therefore strongly encourages the FEI, as well as those expected to educate others, for example riders that are supposed to educate their Support Personnel, to reinforce their information and education duties.

In a bid to raise awareness and draw attention to the risks of contamination, we strongly encourage all athletes to review all the documentation and ensure their support personnel are also fully aware of the Clean Sport rules and ramifications.

A dedicated page to contamination prevention outlining best practices to avoid positive samples due to contamination, including urination by personnel in stables, is available on the FEI website. The comprehensive FEI Clean Sport for horses hub is aimed specifically at athletes, grooms and support personnel and provides all necessary information regarding the FEI’s Equine Anti-Doping and Controlled Medication Programme and associated testing procedures, test results, equine prohibited substances and resources related to the medication of horses and educational material.

The FEI will continue to develop its educational material on FEI Campus in relation to Clean Sport and we look forward to promoting these new courses in the near future.

Thank you for your cooperation in this important task of educating and raising awareness on this specific contamination risk.”

EUAEL Italian Alliance Partner Vincenzo Giardino Won a Doping File from the FEI

Gelo Delle Schiave (“the “Horse”) participated at the CDI-W in Lipica, Slovenia, from 24 to 26 May 2019 which was ridden by Mr. Pierluigi Sangiorgi (the Person Responsible “PR”), was selected for sampling. The FEI approved laboratory reported an adverse analytical finding of ‘Aripiprazole’ which is a banned substance under the FEI list. The FEI legal department notified the PR through the National Federation of Italy (“ITA-NF”). Consequently, the PR was suspended for 2 years and the horse was suspended for 2 months from the date of notification.

The Groom who has escorted the horse to the event admitted that he had frequently fulfilled his physiological needs (urine) in the box of the Horse from the moment he arrived at the event. The PR presented a statement from the Groom’s doctor along with a copy of the prescription for the medication and an expert statement from a specialist in Toxicology.

In the FEI’s view, although the PR’s Support Personnel should have been aware of the risk of human to horse cross contamination through urination on the horse’s bedding, the PR in this case could not quite have acknowledged the fact that the Groom was on medication which could lead to the presence of the prohibited substance in the horse’s system. As a result, the FEI was convinced that the PR has proved that he bore No Fault or Negligence for the Rule violation and the applicable period of ineligibility (two years) shall be eliminated.

Strychnine: when a herbal medication for humans triggers a positive doping test

Doping: a case involving Strychnine

In this edition of Horse International I would like to share with our readership some thoughts on doping cases. In my daily practice I often represent athletes and horse owners in doping cases pending for instance before the Fédération Equestre Internationale (the “FEI”). In a recent case I represented an equestrian from the Middle East who was very likely in the wrong place at the wrong time. That case involved Strychnine [C21H22N2O2, FW 334.41] and may illustrate that using medicines by humans may cause a positive doping test of an equine and may lead to a violation of the doping regulations.

Risk liability of the Person Responsible

Contrary to criminal proceedings the doping regulations worldwide assume that the person responsible (the term under the FEI jargon for the person accountable for the horse) is guilty until he proves otherwise. In other words, a presumption of innocence by the defendant / person responsible does not apply under the doping regulations. It is the person responsible who needs to prove that he/she is not guilty. Talking about the equestrian sport it boils down to the following: the person responsible accused of a doping violation needs to demonstrate that he/she can explain how a specific substance got into the horse’s system. Stating “I do not know” has no use. This is not an explanation at all because under the doping regulations the strict liability principle applies. Having explained how the prohibited / controlled substance got into the horse’s system, the person responsible has to prove that he/she has not had “significant fault” or “negligence” with regards to the violation of the doping regulations. The factual circumstances of the specific case remain crucial.

In connection with the above case of Strychnine the undersigned travelled recently to a country in the Middle East. This in order to investigate the venue of the event where the violation happened and gather additional information on the case.

Strychnine poison and herbal medicine

Strychnine is an alkaloid derived from the Strychnos nux-vomica tree. This tree is native to India and to southeast Asia. Strychnine is a neurotoxin that inhibits the neurotransmitters glycine and acetylcholine in the central nervous system, interfering with the inhibitory effect of glycine on motor neurons. The effect of Strychnine is lowering of the threshold for muscle contractions. The clinical signs of a Strychnine overdose are spasms.

Extracts of the seeds and bark of the Strychnos spp. plants have been used over centuries as remedies for many conditions of humans especially in traditional medicine in India, China and southeast Asia. Traditional medicine in this part of the world recommends Nux Vomica inter alia for stomach problem, vomiting, abdominal pain, constipation, intestinal irritation, hangovers, heartburn, insomnia, certain heart diseases, circulatory problems, eye diseases, depression, migraine headaches, nervous conditions, problems related to menopause, and respiratory diseases in the elderly. In folk medicine, it is used as a healing tonic and appetite stimulant. Nux vomica is a common homeopathic medicine prescribed for digestive problems, sensitivity to cold, and irritability. In Hindi Nux Vomica may be referred to as: जहर jahar, कजरा kajara, कुचला kuchala.

During the investigation in the Middle East the undersigned visited various pharmacies making inquiries about the availability of Strychnine. Strychnine was not available at those pharmacies. Neither it was available on the market. Inquiries were also made into homeopathic and/or herbal medicines containing Strychnine like for instance Nux vomica. Again, we were told that Nux vomica was not available at the pharmacies. By the way, also when it comes to the use of Strychnine as a rodenticide such was not registered in the respective country in the Middle East. As it seems it is a global trend that rodenticides containing Strychnine are being withdrawn from the market.

Irrelevant Urinary Concentration

The investigation on the location of the equestrian facility where the violation took place is in the Middle East proved that there were no Nux vomica trees around whose seeds could have caused the cross-contamination. Furthermore, Strychnine turned not registered as a rodenticide in that country either. The rat poison used at the equestrian facility itself did not contain Strychnine. In addition, the analysis of the A and B samples collected from the horse revealed a urinary concentration of Strychnine below 1% of what is expected from the therapeutic dose. In other words, Strychnine had no clinical relevance at all. Neither it had any influence on the performance of the horse. With regards thereto it should be mentioned that in 2002, the French Pharmacologist, Pierre Toutain, first acknowledged this concept and recommended that drugs whose effects are driven reversibly by plasma concentration, be regulated by the determination of their irrelevant plasma/blood or urinary concentrations. Pierre Toutain is of the view that any level below 1% of what is expected from the therapeutic dose is consistent with an irrelevant Plasma or Urinary Concentration. The FEI does not recognize this concept (yet). An irrelevant Plasma or Urinary Concentration may influence the sanction as such but is not relevant for the violation itself.

Traditional medicine / human source of cross-contamination

In the science it has been also acknowledged that Strychnine in human urine demonstrates a significant risk for contamination of a horse. Strychnine is eliminated unchanged in the urine and may be present in concentrations in excess of 59 ng/mL. Going back to our case in the Middle East it turned out during the investigation that the box where the horse had been stabled during the event was the most distant from the lavatories. Getting to a lavatory would mean going out of the FEI stables and passing through the main entrance of the indoor arena (100m – 200m). The investigation at the equestrian facility also revealed that the vast majority of the employees were from India and more in general of Asian descent. In other words, the employees were coming from the countries in which Strychnos Nux Vomica tree grows and finds its applicability in traditional medicines. For instance, the ancient Indian medicine of Ayurveda recommends Nux vomica for treatment of various health issues. Strychnos nux-vomica is also, included in proprietary Chinese medicines, including “Maqianzi Powder”, “Jiufen Powder”, “Fengshimaqian Tablet”, “Shufengdingtong Pill”, “Shenjinhuoluo Pill”, “Biqi Capsule”.

Considering that the equestrian facility employed many employees from India and the Indian subcontinent as well as the fact that the horse in question was the only one positive on Strychnine during the event with a relatively low dosage, a cross-contamination with human urine seems very likely to be the cause of the positive doping test. The toxicologist analysing the samples A and B stated in her report that the dosage was Irrelevant Urinary Concentration of Strychnine. The toxicologist also stated that the Urinary level of Strychnine in the horse was 0.6 ng/mL. If the horse had been exposed to the drug one to two hours prior to being tested at the event, the total dose of Strychnine required to achieve this inconsequential level of Strychnine would have been 510 ng. This level would have required less than a drop of urine from a human source contaminating the environment of the horse.

In this context we need to keep in mind the cultural background of the employees of the equestrian facility. Reportedly, it is not uncommon in India to urinate on street. At this moment further investigations are taking place in the Middle East in order to interview the employees who worked there during the event. The aim is to establish the source of this cross-contamination. The total group of the Indian / Asian employees at the facility amounts to 200. This group needs to be narrowed down to those who were at the venue during the event. Hopefully, this will help discover the source of contamination. Once the source has been found, then the athlete shall be able to explain how Strychnine got into the horse’s system.

Conclusion

This case demonstrates again the seriousness of the strict liability principle under the doping regulations in the equestrian sports. The person responsible may be exposed to various external risks he may not even foresee and he may not be aware of. Having investigated this case at the venue of the event, seeing large number of the employees having unlimited access to the stables, I think it is not surprising that so many – at first sight unexplainable – doping cases occur in the Middle East compared for instance to Europe or the United States. I am convinced that in many cases it is not the person responsible who is to blame for the violation. The FEI rules and regulations are very strict and it is obviously good that they are so but on the other hand when an event is organized under the auspices of the FEI, it should the FEI who shall oblige the organizing committee to implement proper safety and security measures at the venue to mitigate the risks for riders and owners of the horses.

This article was previously published in Horse International.

T12_HI_LegalJournal P_2214331 (003)

Schelstraete C.S. wins Court procedure on behalf of Columbian show jumping rider against Dutch horse trader

The Court hearing took place at March 11, 2020, right before the Court closed for hearings in person due to the Covid-19 crisis.
Our client – a Columbian show jumping rider – bought a five year old jumping mare from a Dutch horse trader located in Gaanderen. When visiting the stables our client found out that the horse was not as talented as shown on the video sent by the horse trader before buying. The horse trader regained the trust of our client and parties agreed that the horse trader would train and resell the horse for our client: everything would be arranged he assured. Unfortunately nothing happened: the horse trader did not sell the horse for over a year, but claimed training and stabling costs over this period our client. Without full payment he refused to let go the horse to our client.
As our client lost trust in the horse trader ever selling the horse our client paid the training and stabling costs and send a transport company to the premises of the horse trader to get the horse he bought. To great annoyance of our client the horse trader still refused to release the horse to the transport company and he claimed more and more money from our client. As a result our client was forced to start a legal procedure in the Netherlands to get the horse he bought.
The Dutch Court rendered a verdict stating that the horse trader should have released the horse almost a year ago as everything was paid by our client. The horse trader is not allowed to claim any further costs regarding the horse as its was unlawfully in his possession. Furthermore the horse trader is convicted to pay the transport costs our client made regarding the failed transport and the legal costs of our client.
Unfortunately the hose is still not released to our client, despite of a conviction under penalty of EUR 500,00 a day. The horse trader now claims the horse died in a stable in Italy due to Rhino (kind of comparable with the human Covid-19 virus) on the date the verdict was rendered by the Court (?!). Sufficient proof of this is not delivered and of course the horse trader was not allowed to transport our client’s horse to Italy without his permission. So to be continued…
The verdict is published under number: ECLI:NL:RBGEL:2020:2264 > https://uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:RBGEL:2020:2264

Informative article in the Polish equestrian magazine Hodowca i Jeździec

Polish statute of limitation in equine related cases The Polish partner of the Alliance of the European US Asian Equine Lawyers published recently an informative article in the Polish equestrian magazine Hodowca i Jeździec (breeder and rider) with regards to the statute of limitation applicable under Polish law in equine related cases. The recent amendment of the Polish law (9 July 2018) shortened considerably the statute of limitation. The article is available in Polish.

Should you require more information please do not hesitate to contact us or Lex Hippica directly.

46-47_HiJ-65_wiosna-2020_PORADY

SEL advises client successfully on legal dispute regarding income tax and social security contributions

Amanda Brouwers and Piotr Wawrzyniak – from Schelstraete C.S. Advocaten – successfully assisted a Mexican showjumper and horse trader residing in the Netherlands in a legal dispute with his former employer regarding income tax and social security. According to Dutch law an employer may not demand payment of particular social security contributions from an employee. The former employer of our client refused to pay back the amount of approximately 10.000 euro regarding social security contributions which was paid by our client via a settlement agreement. Eventually, Court proceedings were not necessary and the employer / the tax advisor of the employer repaid voluntarily the full amount to our client.

Cutting down salaries in response to the Covid-19 crisis?

Amanda Brouwers – Attorney-at-law, Schelstraete C.S. Advocaten

Recently I have been asked regularly whether an employee could be required to meet the employer by accepting less salary or by accepting a scale down of other employee benefits due to the Covid-19 crisis. This is a hot topic in the media as well: insurance multinational Aon has asked its employees worldwide to accept a cut down in gross salary of 20% for the remainder of this year in exchange for employment guarantee during this period.

Is this possible under Dutch law?

Employees can of course be asked to meet the employer during these difficult times. If the need for this is substantiated, this can cause employees to agree voluntarily. But what if employees don’t agree voluntarily?

Under Dutch law, employment conditions cannot simply be changed unilaterally by the employer, certainly not when it concerns an essential part of the employment agreement, such as salary. There must be a substantial business interest on the side of the employer, which interest should be so substantial, that the employee’s interest should reasonably be set aside.

In the Netherlands the NOW-measure is in place. An employer whose turnover falls back by 20% or more due to the measures taken by the Dutch Government, the Dutch Government pays a part of the gross salary of the employees in the coming months up to 90%. In principle it is up to the employer to file a request for this measure and to inform his employees about it. The condition attached to this arrangement is that the employer is not allowed to terminate the labour agreement based on financial circumstances during this period: doing so will result in a fine.

The NOW makes it less necessary for employers to request a cut in salary from their employees: a substantial part of the labour costs are subsidised. If the employer does not qualify for the NOW because the turnover did not fall back by 20% or more, there will in principle not be a substantial business interest on the part of the employer. Enforcing acceptance of a cut down in salary will therefore be difficult.

One could argue that an exception could be made in the event that full payment of the salaries – despite the NOW – will result in bankruptcy of the company. But even Dutch department store chain V&D was ordered by the Dutch Court to reverse a one-sided cut down in salary of 6% in 2015. Shortly after the company went bankrupt.

If this happens, the employee will as a result lose his job. The question raises – hindsight based – whether the employee would not have been better off accepting the cut down in salary (or other employee benefits), if this could have saved his employer.

Employment law related questions? Please contact our colleague Amanda Brouwers.

FEI introduces important changes for the organizers of showjumping competitions

The most remarkable changes:
– the existing Rules for CSI 5*, CSI 4* and CSIOs, have been confirmed.
– the CSI Invitation Rules have been temporarily suspended for CSI2*,
– Going forward switching dates from one Event to another by the same Organizers only allowed and reviewed on case-by-case basis.
– All CSIOs to be prioritized as far as date clashes are concerned being considered to allow teams preparation in the build-up to the upcoming Olympic Games.
– The Executive Board of the FEI looks into the financial consequences of Covid-19

For more details please refer to https://inside.fei.org/content/fei-board-approves-jumping-calendar-task-force-resolutions-0

If you have any questions please contact Luc Schelstraete or Piotr Wawrzyniak of Schelstraete Equine Lawyers

Fighting the Corona crisis together.

The world comes to a standstill as many countries are shutting themselves off from the rest of the world trying to fight the Coronavirus outbreak. Sport events are cancelled, boarders are closed and countries are imposing travel bans.

It goes without saying that this new situation obviously also impacts the equine business. You and your business may be facing problems with contracting parties, governments, customs and sport authorities. Your horses may be in a country that imposed a travel ban whereas you are somewhere else. You may be asking yourself what to do with your employees, how to protect them against the Coronavirus and at the same time how to protect your business and its going concern.

The Alliance of the European US Asian Equine Lawyers (EUAEL) have their representatives in all equine countries around the globe. Our EUAEL Lawyers are always by your side not only in case of emergency but also when it comes to advising you on how to face and survive this crisis. They are there for you to deal with the authorities, to (re)negotiate with your clients or suppliers, to answer your questions on the employment law, to assist you with obtaining state’s aid and to do whatever needs to be done in these difficult times.

Do not hesitate to contact us!

 

 

We are moving

We would like to inform you that Schelstraete Advocaten and European US Asian Equine Lawyers head office will be moving to a new location in the week of 23 March 2020. As per 30 March 2020 we will be in operation at our new office which will be located at:

Hoflaan 7-9
5223 LT ‘s-Hertogenbosch (Paleiskwartier)

As per the above date our office in Oisterwijk shall not be available any longer. The meeting room in Amsterdam at Herengracht 450-454 will remain unchanged.

All other contact details remain unchanged:

Phone: (+31) (0) 13 511 44 ​​20
Fax: (+31) (0) 13 511 42 90
Mail: info@europeanequinelawyers.com

Due to our moving to ‘s-Hertogenbosch our availability will be limited in the week of 23 March 2020. We would be honoured to welcome you at our new location.

Luc Schelstraete – Piotr Wawrzyniak – Vincent Zitman

FEI doping case Sharjah

Messrs. Luc Schelstraete and Piotr Wawrzyniak of Schelstraete Equine Lawyers have been to the UAE this week in connection with an FEI doping case in Sharjah. On the last day of their visit they attended the Al Shira’aa Horse Show at Al Forsan in Abu Dhabi meeting clients and making acquaintance with new contacts in the Middle East. They also paid a visit to the Supreme Court of the Emirates.

 

#schelstraete #equinelaw #sportslaw #doping #prohibitedsubstances #horse #artlaw #lawyer #showjumping #UAE #Emirates

Schelstraete C.S. wins Court procedure against Mexican show jumping rider and horse trader

The Court hearing took place at November 29, 2019 and the Court already rendered a verdict in this case on December 24, 2019, right before Christmas. Normally it takes the Court a minimum of six weeks to render a verdict; but in obvious cases Courts sometimes decide to render a verdict on an earlier term.

The counterparty, a Mexican show jumping rider and horse trader, claimed substantial amounts from our client. According to the counterparty our client did not pay the sale price regarding a horse in full which he claimed was owned by him and sold by our client. Furthermore he claimed that our client sold his horse without him knowing and without him paying the sale price. To top it off he claimed that our client stole his helmet and saddle, which in his opinion were worth together
€ 5000,00. The total claim of the counterparty against our client: € 175.000,00.

The counterparty sued our client in person; while in the opinion of our client he never conducted business with the counterparty in person; but via his limited liability entity (B.V.) Regarding most of the claims the Court left the answer to the question – did our client in this case conduct business in person or via his entity –  somewhere in the middle. As the claims where contradicted by our client with a credible and coherent story and the counterparties arguments where vague and incoherent and he did not substantiate the claims sufficiently the Court rejected all claims of the counterparties. The Counter party is convicted in the legal fees of our client.

Our client was represented by Luc Schelstraete and Amanda Brouwers

Founding partner Schelstraete Law Firm 30 years existence

Our founding partner, Schelstraete Law Firm, has been in existence for 30 years on 4 December 2019. That means that for 30 years we have been providing our (mostly international) clients with legal advice on all business, art and equestrian related issues. Over the past 30 years, Schelstraete Advocaten has grown into a unique law firm with 12 employees and a multitude of satisfied clients!

Would you like to use our expertise? Contact us!

BELGIUM – Horse sold during the lease agreement. Refund of advanced payment.

A company from Bermuda, the client of Schelstraete and Beelen Advocaten from Leuven, Belgium, and a company from Belgium agreed on a lease agreement regarding the lease of a horse.

The lease price needed to be paid by the client of Schelstraete and Beelen at the beginning of each year. The costs for the first year were € 100.000,- and for the second and third year € 50.000,-. In the agreement was also a clause on the sale and purchase of the horse during the lease agreement. In the event of a sale and purchase the first € 300.000,- benefits the Belgian company and everything above this amount would be equally distributed between the client and the Belgian company.

During the last year of the lease agreement, in September, the horse was sold. The revenue was distributed as set out before.

The client of Schelstraete and Beelen was of the opinion that she could claim the refund of the lease price of € 12.500,- for the months October, November and December because the lease agreement prematurely terminated in September at the sale and purchase of the horse. The client also asked for the documents regarding the sale and purchase of the horse because she was the commissionaire.

Court of first instance
The Belgian Company disputed this allegation so the client of Schelstraete and Beelen was forced to start a litigation at the Court of first instance Gent, district Dendermonde.

The client of Schelstraete and Beelen based her claim on undue payment. Based on Belgian Law two conditions must be fulfilled to speak of an undue payment: a payment and a lack of cause of this payment. The payment of € 12.500,- was done at the beginning of the year and has no cause because the lease agreement prematurely terminated and the horse was not leased from October until December.

The client of Schelstraete and Beelen won the case.

Appeal
The Belgian company could not agree and appealed against this decision at the Court of Appeal in Gent. Also the Court of Appeal ruled in favour of the client from Schelstraete and Beelen because it would be against all reasonableness and fairness that the full lease price would be due when the lease agreement was prematurely terminated.

The client was represented by Mr. Luc Schelstraete from Schelstraete Advocaten (The Netherlands) and Mr. Bert Beelen from Beelen Advocaten (Belgium).

Schelstraete and Beelen are both members of the Alliance European US Asian Equine Lawyers, a collaboration between Equine Lawyers all over the world. You can find more information on https://www.europeanequinelawyers.com/.

Are you in need of advice or are you having a dispute with an party abroad? Contact us via e-mail on info@schelstraete.nl or info@europeanequinelawyers.com or call us on
+31 (0) 13 511 44 20.

Client Schelstraete Equine Lawyers (SEL) wins appeal case concerning a dispute about a swap agreement.

The seller of the horse delivered a horse to an English client of SEL which did not comply with her expectations. On the invoice was a clause which stated that she had the right to exchange the horse for another horse within a period of six. Client invoked this right and arranged with the consent of the seller the transport of the horse back to the Netherlands. After she transported the horse she did not hear from the seller again.

Because of the fact that our client lost all confidence in the seller she was claiming alternative compensation consisting of the purchase price of the horse. In breach of the agreement the seller did not deliver another horse to our client.

The seller defended herself with the statement that the horse was never delivered back to her and that client herself sold the horse in England. The lower realized purchase price was paid to client’s account and an invoice with her name on it was sent.

A peculiar course of business as our client transported the horse with a transport company partly owned by the seller and she received the message from the joint owner of the transport company that the horse was received in good order. To substantiate her claim the seller handed over a very questionable written statement of a witness.

The District Court granted the claims of our client by advanced verdict, but against all expectations the seller lodged an appeal.

Like the District Court the Dutch Court of Appeal in Den Bosch dismissed the implausible defense of the counterparty resolutely by advanced decision as well. The seller is convicted to pay to our client a substantial amount of procedural costs.

Our client was represented by Ms. Amanda Brouwers.

Link: http://deeplink.rechtspraak.nl/uitspraak?id=ECLI:NL:GHSHE:2018:5183

EUAEL International Equine Law Congress 2019

International Equine Law Congress during The Dutch Masters – Indoor Brabant

In 2019 the Dutch Masters – Indoor Brabant Horse Show in ’s-Hertogenbosch, The Netherlands to be held from 14 until 17 March 2019 shall again fully focus on the crème de la crème of the International Equestrian Sport.

The Dutch Masters belongs together with CHI Genève, CSIO Spruce Meadows Masters and CHIO Aachen to the Rolex Grand Slam. Of course, European US Asian Equine Lawyers could not be missed at this international top event.

EUAEL International Equine Law Congress 2019

Schelstraete Lawyers, the founder of the Alliance European US Asian Equine Lawyers, is organizing on Friday, 15 March 2019, for the first time in its history and for the first time during The Dutch Masters – Indoor Brabant the EUAEL International Equine Law Congress with the subject:

Does your horse survive the pre-purchase exam?”

Topics

Interesting subjects as International Horse Deals and the pre-Purchase Vetting will be discussed.  Non-Conformity and Consumer Sales will be a topic for discussion too and with regards to this also International Litigation will pass by. At least the subjects Doping and VAT in the Equine Industry will be discussed too.

The Dutch Masters – Indoor Brabant offers the perfect occasion to discuss these subjects.

Interested?! https://internationalequinelawcongress.com/

EUAEL Hospitality lounge

You can find European US Asian Equine Lawyers and its Alliance Partners from 14 until 17 March at its hospitality lounge in the VIP area of The Dutch Masters 2019 in the middle of 4 days of top equine sports with among others the FEI World Cup Dressage Freestyle on Saturday afternoon and the Rolex Grand Prix on Sunday afternoon. The perfect opportunity for you to come and to have a chat in our hospitality lounge!

Buyer loses case because of not trying expensive jumping horse herself before purchase

A SELLER, REPRESENTED BY LUC SCHELSTRAETE, WINS CASE ABOUT EXPENSIVE JUMPING HORSE

The client of SEL sold in 2015 a horse to a Canadian stable.

At the end of 2015 the stable commissioned her trainer to search for a suitable jumping horse. The horse of the client of SEL came under the footlight of the trainer. At that moment the horse was stabled in Germany for training.

De trainer tried the horse and was very enthusiastic about the horse. In fact, during the test ride the trainer jumped 155-160 cm with the horse! De Canadian Stable never took a look at the horse nor rode the horse before the purchase. However, she received some videos of the horse from the trainer.

In January 2016 the horse was exported from Europe to Canada. The purchase price was a sum of € 650.000,-.

Almost half a year later the client of SEL received a letter of the Canadian Stable which stated that the horse wasn’t able to jump high fences, the horse does not want to be ridden on a grass surface and the horse couldn’t be transported smoothly. The Canadian Stable terminated (“ontbinden”) de purchase based on error (“dwaling”) respectively non conformity.

To rely upon non conformity it must be assessed if the horse implies with the purchase agreement at the moment of the sale and purchase.

In this case the competition results from the FEI were very clear. The horse regularly jumped a 140-160cm course so the horse is suitable for jumping that high. With regards to the transport of the horse, the Court ruled that the sole fact that the horse during its travel to Canada, in a foreign environment and without a familiar person, injured itself is not enough to conclude that the horse couldn’t be transported for long distances. Also the claim the horse doesn’t want to be ridden on a grass surface was non-substantiated. The horses competed regularly on a grass surface with very good results. Thereby, the Canadian Stable had to complain earlier and most important argument from the Court to deny the claim was the single fact that the Canadian stable didn’t test ride the horse before buying.

Thus, the claims of the Canadian stable were rejected and the by Luc Schelstraete represented client won the case.

Our Alliance is expanding with a new Alliance Partner from Canada!

We are very happy to welcome Julien-Pierre Côté from KSA Avocats in Québec, Canada.

KSA Avocats is a midsize firm and counts over 30 law professionals (both lawyers and notaries) in their offices in Lévis, Québec City and Trois-Rivières.

Julien-Pierre is a member of the Quebec Bar since 2005. In the recent years he has been working on developing his practice in equine law. He rode showjumpers for a few years and groomed for a racing stable in Ireland as well as a Canadian well known Olympic Rider. But his main passion is breeding and for the past 7 years he has been operating a small breeding program outside of Quebec City under the name Haras des Jardins.

You can find more information on https://www.europeanequinelawyers.com/alliance/ksa/

 

Client of Schelstraete Equine Lawyers defended successfully against a request for an expert opinion

The client of Schelstraete Equine Lawyers (SEL) sold a horse. After six months the Seller took the view the horse wasn’t what she expected because of an inflammation in its back and bad behavior.

The client of SEL refused to pay back the purchase price and refused to pay for the alleged damages suffered by the Seller because there was nothing wrong with the horse when the client sold the horse to the Seller. In view of this the Seller requested the Court for an expert opinion to ensure the horse was suffering due to the aforementioned medical defects at the time the Seller bought the horse from the client. More specific the Seller requested the Court to appoint a farrier as expert.

SEL convinced the Court to refuse the request of the Seller. The Court stated that there wasn’t enough information to prove the condition of the horse at the time the Seller bought the horse. So a medical research from an expert wasn’t of importance because the expert wouldn’t be able to compare the condition of the horse at the time of the sale and purchase with the condition of the horse at this time.

The Court refused the request of the Seller due to lack of interest and agreed with the statement of the client of SEL.

The client of SEL was represented by Mr. Luc Schelstraete and Ms. Joëlle Bongers.

Katrien Beelen – Koopvernietiging in het hippisch recht

Wanneer bij aankoop van een paard achteraf blijkt dat het paard een bepaalde ziekte of afwijking heeft, of nog, wanneer het niet over de verwachte kwaliteiten beschikt, op basis waarvan kan de koopovereenkomst dan worden ontbonden of vernietigd? De bijdrage behandelt de mogelijkheid tot nietigverklaring of ontbinding van de overeenkomsten tot koop-verkoop van paarden.Eerst wordt er stilgestaan bij de wet van 25 augustus 1885, die een bijzonder regime ott Stand brengt bij de nietigverklaring van koop en ruil bij o.a. paarden. Vervolgens gaat deze bijdrage in op de Wet Consumentenkoop, de wilsgebreken dwaling en bedrog en het Weens Koopverdrag. Tot slot wordt kort de bevoegdheid behandeld.

Wet van 25 augustus 1885

Een overeenkomst tot koop of ruil kan nietig worden verklaard op grond van verborgen gebreken op basis van de artikelen 1641 e.v. van het Burgerlijk Wetboek. Een verborgen gebrek maakt de zaak ongeschikt voor het gebruik waartoe men ze normaal bestemt of vermindert het gebruik ervan aanzienlijk. Bij de koopovereenkomst van een paard moet daarbij echter rekening worden gehouden met de wet van 25 augustus 1885. Volgens artikel 1 van deze wet worden bij de verkopingen of ruilingen van paarden, ezels, muilezels en andere huisdieren die tot het schapen-, runder- of varkensras behoren, de ziekten of gebreken die door de regering vastgesteld worden, voor koopvernietigende gebreken gehouden en zullen zij alleen aanleiding geven tot de vordering voorzien bij artikel 1641 BW.

Het KB van 24 december 1987 betreffende de koopvernietigende gebreken bij verkoop of ruiling van huisdieren somt de verschillende koopvernietigende ziekten en gebreken op. Bij paarden worden slechts twee ziektes als koopvernietigende gebreken beschouwd, nl. malleus en infectieuze anemie (art. 1, 1°).

De vernietiging van een overeenkomst tot koop-verkoop of ruil van een paard op grond van de artikelen 1641 e.v. BW heeft in de praktijk dus weinig relevantie omdat een overeenkomst enkel nietig kan worden verklaard op grond van verborgen gebreken wanneer het paard één van deze twee ziektes heeft.

Het is dan ook niet verwonderlijk dat het Grondwettelijk Hof zich reeds diende uit te spreken over deze regeling. Aan het Hof werd de volgende prejudiciële vraag gesteld: “Zijn de artikelen 1 tot 12 van de wet van 25 augustus 1885 en het koninklijk uitvoeringsbesluit ervan van 24 december 1987 in overeenstemming met de artikelen 10 en 11 van de Grondwet in zoverre zij een regeling invoeren die afwijkt van het gemeen recht van artikel 11641 van het Burgerlijk Wetboek,
– doordat, inzake de verkoop van een huisdier van de paardensoort dat niet bestemd is voor een snelle slachting voor consumptiedoeleinden maar voor elk ander gebruik zoals een sportieve loopbaan, die bepalingen het instellen van de vordering tot koopvernietiging van de koper beperken door de enkele gebreken die een dergelijke vordering kunnen verantwoorden te beperken tot twee ziekten en door, op straffe van absoluut verval, een termijn van negen dagen op te leggen vanaf de dag na de levering van het dier om de vordering tot koopvernietiging in te stellen,
– terwijl inzake de verkoop van een huisdier van een andere soort dan die welke worden beoogd in de wet van 25 augustus 1885 en dat niet bestemd is voor een snelle slachting voor consumptiedoeleinden maar voor een sportieve loopbaan, zoals de honden die worden gefokt voor de windhondenrennen of de duiven die deelnemen aan wedstrijden in de duivensport, de vordering tot koopvernietiging van de koper wordt onderworpen aan de voorwaarden van de regeling van het gemeen recht van artikel 11641 van het Burgerlijk Wetboek, zowel voor wat betreft de definitie van de toelaatbare koopvernietigende gebreken als wat betreft de termijn om die vordering in te stellen?”

Het Grondwettelijk Hof beantwoordde de prejudiciële vraag ontkennend. De bij wet van 25 augustus 1885 bepaalde regeling wijkt af van de artikelen 1641 tot 1649 BW, maar zij wijkt niet af van de andere bepalingen van het Burgerlijk Wetboek inzake koop. De koper kan derhalve op grond van artikel 1110 BW een vordering tot nietigheid instellen wegens dwaling of een vordering tot ontbinding op grond van de artikelen 1184 en 1604 BW. Bovendien bieden de artikelen 1649bis tot 1649octies BW een bescherming aan de consument die voorrang moet krijgen op de bij de in het geding zijnde wet bepaalde afwijkende regeling (GwH 13 februari 2014, nr. 28/2014).

De wet van 25 augustus 1885 met zijn uitvoeringsbesluit van 24 december 1987 staat er dus niet aan in de weg dat de koopovereenkomst nietig wordt verklaard op grond van een wilsgebrek of de Wet Consumentenkoop.

Wet Consumentenkoop

Toepassingsgebied

De Wet Consumentenbescherming is integraal van toepassing op de koopovereenkomsten van paarden. Wanneer een paard gekocht wordt in het kader van een consumentenkoop, bieden artikel 1649bis tot en met artikel 1649octies BW een belangrijke bescherming ten aanzien van de consument.

Deze wetgeving is enkel van toepassing wanneer een professionele verkoper een consumptiegoed verkoopt aan een consument.

De beoordeling van wie juist een professionele verkoper dan wel een consument is, behoort tot de feitelijke appreciatie van de rechter en heeft niets te maken met het begrip ondernemer uit het handelsrecht.

Een professionele verkoper wordt gedefinieerd als iedere natuurlijke persoon of rechtspersoon die consumptiegoederen verkoopt in het kader van zijn beroepsactiviteit of zijn commerciële activiteit (art. 1649bis, § 2, 20 BW).

Volgens het Hof van Cassatie is elke persoon die op een duurzame wijze een economische activiteit ontplooit, met uitsluiting van de persoon die niet beroepshalve handelt, een verkoper in de zin van artikel 1649bis BW (Cass. 21 januari 2010, AR C.08.0482.N).

Men hoeft geen KBO-nummer of officiële registratie als handelaar te hebben om als professionele verkoper te worden beschouwd in het kader van de Wet Consumentenbescherming. Het criterium bestaat uit de vraag of de verkoop louter hobbymatig is dan wel een professioneel karakter heeft.

De vaststelling dat de verkoop op een duurzame wijze moet geschieden, impliceert dat dit moet gebeuren met een zekere regelmaat, vanuit een zekere structuur of organisatie. Een particulier die occasioneel of sporadisch een goed verkoopt, zal dus niet als een verkoper in de zin van artikel 1649bis, § 2, 2° BW beschouwd kunnen worden (R. STEENNOT, G. STRAETMANS, E. TERRYN, B. KE1RSBILCK en WYSEUR, “Overzicht van rechtspraak consumentenbescherming (2008-2014). Marktpraktijken (2011-2014)”, TPR 2015, 1806, nr. 508).

Het begrip “professionele verkoper” in de zin van de artikelen 1649bis e.v. BW valt niet noodzakelijk samen met het begrip onderneming in de zin van artikel I.1, 10 van het Wetboek van economisch recht. Artikel I.1, 1° WER definieert een onderneming als elke natuurlijke persoon of rechtspersoon die op duurzame wijze een economisch doel nastreeft, alsmede zijn verenigingen. Het gaat om het duurzaam ontplooien van een economische activiteit, met andere woorden het aanbieden van goederen of diensten op een bepaalde markt (J. STUYCK, Handels-en economisch recht. Deel 2 Mededingingsrecht. A. Handelspraktijken, Mechelen, Kluwer, 2015, 57, nr. 31).

Het hof van beroep te Antwerpen sprak zich in het kader van de verkoop van een pony uit over het begrip “professionele verkoper” in een arrest van 4 juni 2012 (Antwerpen 4 juni 2012, onuitg.). Eiseres kocht van verweerster een pony die spoedig na de aankoop een ongebruikelijk gedrag vertoonde. Uit onderzoek bleek dat het paard leed onder zomereczeem en rugproblemen had, vermoedelijk het gevolg van het zadelmak maken op een te korte periode en op een te jonge leeftijd. Eiser vorderde de prijsvermindering op grond van de Wet Consumentenkoop. De verkoper betwistte echter de pony te hebben aangeboden in het kader van een professionele activiteit. Het hof was echter van mening dat verweerster wel degelijk een professionele verkoper, minstens een feitelijk handelaar was waardoor de Wet Consumentenkoop in casu van toepassing was. Uit advertenties uitgaande van de verkoper bleek dat zij bepaalde zaken die met paArden te maken hebben, had verkocht en dat met de bedoeling hieruit een winstgevende activiteit te ontwikkelen. Het feit dat zij tewerkgesteld was als bediende, doet hieraan geen afbreuk. Gelet op de advertenties en aanbiedingen met een gespecialiseerde omkadering en omschrijving, aanvaardde het Hof niet dat de verkoop in kwestie een louter toevallige, eenmalige verkoop zou zijn geweest.

Het begrip “consument” wordt gedefinieerd als iedere natuurlijke persoon die handelt voor doeleinden die geen verband houden met zijn beroepsactiviteit of zijn commerciële activiteit (art. 1649bis, § 2, 1° BW).

Om als consument te worden beschouwd, is het niet vereist dat deze persoon handelt met doeleinden die elk beroepskarakter uitsluiten (Cass. 9 maart 2018, AR C.17.0065.F). Ook aankopen verricht door een natuurlijk persoon voor een gemengd gebruik kunnen dus binnen het toepassingsgebied van de wet vallen wanneer het aangekochte goed hoofdzakelijk voor private doelen wordt gebruikt (Antwerpen 30 juni 2009, NjW 2010, 504, noot R. STEENNOT).

Er kan nog worden opgemerkt dat het loutere feit dat een consument ingeschreven is bij de Kruispuntbank van Ondernemingen niet volstaat als bewijs dat hij het consumptiegoed heeft verkregen in het kader van zijn beroepsactiviteit (Bergen 10 september 2015, TBBR 2016, 462).

Ten slotte moet een “consumptiegoed” worden verkocht. Ook een paard is een consumptiegoed in de zin van artikel 1649bis, § 2, 30 BW, aangezien ook dieren roerende lichamelijke goederen zijn (Gent 2 mei 2012, DCCR 2012, 101; Bergen 15 december 2010, DCCR 2012, 117; Rb. Dinant 16 oktober 20l3, JLMB 2014,237; Vred. Antwerpen 11 december 2014, RW2015-16, 1429).

Wanneer de Wet Consumentenkoop van toepassing is, is de verkoper garantieplichtig voor elk gebrek aan overeenstemming dat bestond bij de levering van het paard en dat zich manifesteert binnen een termijn van twee jaar vanaf de levering (art 1649quater,§ 1, eerste en derde lid BW). Als dit gebrek zich manifesteert binnen de 6 maanden na de levering, wordt het gebrek overeenkomstig artikel 1649quater, paragraaf 4 BW vermoed te hebben bestaan op het tijdstip van de levering.

Zo oordeelde het hof van beroep te Gent in een arrest van 2 mei 2012 (Gent 2 mei 2012, DCCI? 2012, 101) over volgende feiten. Een vrouw kocht voor haar 13-jarige dochter een rijpaard. Een maand na de koopovereenkomst ging de dochter op de openbare weg rijden met het paard. Het paard steigerde voor de aankomende voertuigen. De dochter durfde sindsdien niet meer met het paard rijden en het paard werd op stal geplaatst. In casu was de Wet Consumentenkoop van toepassing, aangezien de verkopers het paard verkochten in het kader van de uitbating van hun handelszaak en de koopster het paard had aangekocht binnen de private sfeer als geschenk voor haar 13-jarige dochter. Door de rechter in eerste aanleg werd een gerechtsdeskundige aangesteld, die tot de bevinding kwam dat het paard een (intrinsiek) karakterieel gebrek vertoonde, aangezien het zicht agressief en onvoorzienbaar gedroeg in de stal en wanneer het werd bereden. Het hof besloot dat het paard niet geschikt was om door een 13-jarige ruiter te worden bereden en dat deze bestemming de verkoper genoegzaam bekend was en ontbond de overeenkomst.

Ook de rechtbank van eerste aanleg te Leuven ontbond de koopovereenkomst van een paard op basis van de Wet Consumentenkoop (Rb. Leuven 27 januari 2016, onuitg-.). Eiseres kocht als consument een paard van een professionele paardenhandelaar. Het betreffende paard was bestemd voor jumping op amateurniveau. Kort na de levering bleek het paard niet te willen springen, zelfs niet over beperkte hindernissen. Het stopte bij het nemen van een sprong, ook als het werd bereden door een professionele ruiter. De verkoper beweerde dat het feit dat het paard niet (meer) sprong, een gevolg zou zijn van de castratie die kort voor de levering had plaatsgevonden. De rechtbank was echter van oordeel dat de verkoper dit niet aantoonde en dat hij als professioneel verkoper, terwijl de eiser een “consument” is, de koper had moeten meedelen dat een castratie gevolgen zou kunnen hebben gehad voor de prestaties/springcapaciteiten van het paard. De vordering tot ontbinding van de koopovereenkomst ten laste van de verweerder wegens niet-conforme levering werd gegrond verklaard.

Lex specialis

De regels met betrekking tot de Wet Consumentenkoop vormen een lex specialis t.a.v. de gemeenrechtelijke regels van de artikelen 1640 e.v. BW aangaande de verborgen gebreken en tevens t.a.v. de wet van 25 augustus 1885. Dit wil zeggen dat ook buiten de opgesomde gebreken in de wet van 1885, een overeenkomst in het kader van de Wet Consumentenkoop ontbonden kan worden. Dit werd bevestigd in het bovenvermelde arrest van het Grondwettelijk Hof van 13 februari 2014.

Wilsgebreken

De koopovereenkomst van een paard kan ook nietig worden verklaard op grond van de wilsgebreken dwaling en bedrog. Uiteraard kan ook een beroep worden gedaan op het wilsgebrek geweld (art. 1111 BW), maar dit zal in de praktijk minder relevant zijn.

De wet van 25 augustus 1885 en de gemeenrechtelijke wilsgebreken

De afwijkende regeling van de wet van 25 augustus 1885 doet geen afbreuk aan deze gemeenrechtelijke regeling (F. VRANKEN, Koop en ruil van dieren, Gent, Story-Scientia, 1979, 193-212, nrs. 290-313). Dit werd reeds bevestigd door, zowel het Grondwettelijk Hof in het reeds aangehaalde arrest van 13 februari 2014, als door het Hof van Cassatie. Het Hof van Cassatie stelde in zijn arrest van 8 mei 2014 uitdrukkelijk met betrekking tot het wilsgebrek bedrog: “De bepaling dat een gebrek dat niet als koopvernietigend gebrek is opgenomen in artikel 1 van het koninklijk besluit van 24 december 1987 betreffende de koopvernietigende gebreken bij de verkoop of ruiling van huisdieren geen aanleiding kan geven tot een vordering tot vrijwaring op grond van artikel 11641 Burgerlijk Wetboek, staat niet eraan in de weg dat zulk gebrek aanleiding geeft tot een vordering tot vernietiging van de koopovereenkomst wegens een bedrieglijke verzwijging van dit gebrek op grond van artikel 11116 Burgerlijk Wetboek” (Cass. (lste k.) 8 mei 2014, AR C.13.0022.N).

De rechtspraak paste dit principe al reeds langer toe. Zo bevestigde het hof van beroep te Brussel dat de koper de keuze heeft, hetzij de koopvernietiging te vragen overeenkomstig de voorschriften van de wet van 3 juli 1894, die artikel 13 van de wet van 25 augustus 1885 verving, hetzij de nietigheid van de verkoop te vervolgen overeenkomstig de bepalingen van het gemeen recht, in welk geval de rechtsregels van de wetten van 25 augustus 1885 en 3 juli 1894 niet hoeven te worden nageleefd (Brussel 23 maart 1983, RW 1985-86, 685).

De rechtbank van koophandel te Hasselt aanvaarde dat een koop-verkoopovereenkomst kan worden vernietigd op grond van dwaling als een ziekte niet valt onder de toepassing van de wet van 25 augustus 1885 op de koopvernietigende gebreken bij dieren (Kh. Hasselt 20 november 1991, Limb.Rechtsl. 1994, 102, noot). De vrederechter te Hasselt bepaalde het volgende: “De koper van een dier dat aangetast is door een ernstige ziekte die niet is opgenomen in het KB van 24 december 1987 betreffende de koopvernietigende gebreken, ter uitvoering van de wet van 25 augustus 1885, is gerechtigd de ontbinding van de koop te vorderen wegens een verborgen niet-conforme levering” (Vred. Hasselt 15 september 2004, RW 2006, 777). Tot slot kan ook nog worden verwezen naar een vonnis van de rechtbank te Hoei waarbij vastgesteld werd dat de koper de ontbinding van de koop kan vorderen op grond van dwaling wanneer een dier aangetast is door een ernstige ziekte die niet is opgenomen in de wet van 25 augustus 1885. Immers, “de wet van 1885 doet in niets afbreuk aan de algemene regels van het BFK doch heeft enkel, voor welbepaalde gevallen, een bijzondere procedure in het leven geroepen” (Rb. Hoei 2 mei 1973, TL 1972-73, 301).

Dwaling

Een overeenkomst kan nietig worden verklaard op grond van dwaling, wanneer gedwaald

wordt over de zelfstandigheid van de zaak, die het voorwerp van de overeenkomst uitmaakt. Artikel 1110 BW bepaalt hieromtrent het volgende:

“Dwaling is alleen dan een oorzaak van nietigheid van de overeenkomst, wanneer zij de zelfstandigheid betreft van de zaak die het voorwerp van de overeenkomst uitmaakt.
Zij is geen oorzaak van nietigheid, wanneer zij alleen de persoon betreft met wie men bedoelde te handelen, tenzij de overeenkomst hoofdzakelijk uit aanmerking van deze persoon is aangegaan”.

Dwaling kan worden gedefinieerd als “een niet-uitgelokte verkeerde voorstelling van de werkelijkheid die een partij bij een contract heeft aangaande een bestanddeel van de overeenkomst, op het ogenblik dat zij die overeenkomst sluit” (A. DE BOECK en J. WAELKENS, “Dwaling” in Bijzondere overeenkomsten. Artikelsgewijze commentaar met overzicht van rechtspraak en rechtsleer, bijgewerkt tot 1 september 2017, 191, nr. 3).

Opdat dwaling als wilsgebrek in aanmerking kan komen, dient zij betrekking te hebben op de zelfstandigheid van de zaak (Cass. 31 oktober 1966, Arr.Cass. 1967, 301; Cass. 3 maart 1967, Arr.Cass. 1967, 829; Cass. 27 oktober 1995, Arr:Cass. 1995, 920). De zelfstandigheid van de zaak is ieder element dat de partij er hoofdzakelijk toe bewogen heeft het contract aan te gaan, zodanig dat zonder dit de overeenkomst niet tot stand zou zijn gekomen (Cass. 23 januari 2014, AR C.13.0114.N).

Bovendien moet de dwaling verschoonbaar zijn, wat betekent dat ieder redelijk mens de dwaling zou hebben begaan (Cass. 28 november 2013, AR C.12.0556.N).

De veterinaire keuring van een paard bij aankoop is geenszins een verplichting en in het algemeen kan men van een contractant niet vereisen dat hij zich zou laten bijstaan door een deskundige op het moment van de aankoop (Luik 11 december 1989, Act. dr 1991, 210). Zelfs wanneer een contractant zich laat bijstaan door een deskundige en zich vergist, kan de dwaling nog verschoonbaar zijn (R KRUITHOF, BOCKEN, F. DE LY en B. DE TEMMERMAN, “Overzicht van rechtspraak (1981-1992). Verbintenissen”, TPR 1994, 339).

Zo zou er sprake kunnen zijn van dwaling indien een koper een paard koopt om hiermee deel te nemen aan jumpingwedstrijden op een hoog niveau. Als hij deze doelstelling bekendmaakt aan de verkoper op het moment van de verkoop, behoort deze eigenschap tot de zelfstandigheid van de zaak Als de verkoper vervolgens niet kenbaar maakt aan de koper dat het paard enkele jaren voordien een medische aandoening heeft gehad en achteraf blijkt dat het paard door deze aandoening niet op een hoog niveau kan deelnemen aan jumpingwedstrijden, heeft de koper gedwaald over de zelfstandigheid van de zaak als ieder redelijke persoon gedacht zou hebben dat deze aandoening de deelname aan jumpingwedstrijden op een hoog niveau niet zou in de weg staan.

Bij dwaling dient de koper immers te bewijzen dat het gebrek of de ziekte bestond op het ogenblik van de verkoop. Hij kan geen beroep doen op een wettelijk vermoeden. Een uitgebreid overzicht van oude rechtspraak die een overeenkomst nietig verklaart op grond van dwaling, is te vinden bij F. VRANKEN (F. VRANKEN, Koop en ruil van dieren, Gent, Story-Scientia, 1979, 199-204, nrs. 298-302bis).

Bedrog

Daarnaast kan een overeenkomst ook nietig worden verklaard op grond van het wilsgebrek bedrog:

“Bedrog is een oorzaak van nietigheid van de overeenkomst, wanneer de kunstgrepen, door een van de partijen gebezigd, van dien aard zijn dat de andere partij zonder die kunstgrepen klaarblijkelijk het contract niet zou hebben aangegaan. Bedrog wordt niet vermoed, het moet worden bewezen” (art. 1116 BW).

Opdat er sprake zou zijn van bedrog, dient zowel een materieel element als een intentioneel element te worden bewezen. Bedrog veronderstelt dat de mede-contractant kunstgrepen (materieel element) aanwendt om de andere partij tot contracteren te bewegen (intentioneel element).

Enerzijds moet de mede-contractant dus kunstgrepen aanwenden. Kunstgrepen kunnen bestaan uit positieve handelingen of daden, zoals leugens (R. DEKKERS en VERBEKE, Handboek burgerlijk recht. Deel III. Verbintenissen, bewijsleer, gebruikelijke contracten, Antwerpen, Intersentia, 2007, 30, nr. 48). Ook de verzwijging van een partij bij het sluiten van een overeenkomst kan in bepaalde gevallen bedrog opleveren in de zin van artikel 1116 BW wanneer zij betrekking heeft op een feit dat, indien de wederpartij ervan op de hoogte was geweest, ertoe zou geleid hebben dat zij de overeenkomst niet zou hebben gesloten of ze tegen een goedkopere prijs zou hebben gesloten (Cass. 16 september 1999, TBBR 2000, 688; Cass. 17 februari 2012, Arr.Cass. 2012, 397).

Anderzijds moet de list tot contracteren bewegen. Dit wil zeggen dat zonder het bedrog de tegenpartij niet zou hebben gecontracteerd (R. DEKKERS enA. VERBEKE, Handboek burgerlijk recht. Deel III. Verbintenissen, bewijsleer, gebruikelijke contracten, Antwerpen, Intersentia, 2007, 30, nr. 48). Bij bedrog draagt de koper aldus een zeer zware bewijslast, aangezien hij ook het bedrieglijk inzicht van de verkoper moet bewijzen, nl. het oogmerk om te misleiden.

Wanneer een verkoper bijvoorbeeld moedwillig verzwijgt dat een paard aan een bepaalde medische aandoening lijdt, zoals `kissing spines’ of hoefkatrol, dan kan de overeenkomst worden vernietigd op grond van bedrog. Er kan ook worden gedacht aan de situatie waarbij de verkoper wedstrijdresultaten of medische verslagen vervalst.

Het Weens Koopverdrag

Tot slot voorziet het Weens Koopverdrag (hierna CISG) nog een bijzonder regime voor koopovereenkomsten betreffende roerende zaken, gesloten tussen een koper en een verkoper die in verschillende staten gevestigd zijn. Indien beide staten partij zijn bij het CISG of wanneer volgens de regels van internationaal privaatrecht het recht van een verdragsluitende staat van toepassing is en de toepasselijkheid van het verdrag niet conventioneel werd uitgesloten, is dit regime van toepassing (art. 1 CISG). Het CISG is niet van toepassing op de koop van roerende zaken die gekocht worden voor persoonlijk gebruik of voor gebruik in gezin of huishouding, tenzij de verkoper te eniger tijd voor of bij het sluiten van de overeenkomst niet wist of had behoren te weten dat de zaken voor zodanig gebruik werden gekocht (art. 2, a) CISG).

Indien een paard om professionele doeleinden wordt verkocht tussen twee partijen die in verschillende staten (die partij zijn bij het CISG) gevestigd zijn, zal het CISG van toepassing zijn op deze overeenkomst.

Op grond van het CISG kan een koopovereenkomst worden ontbonden of kan een schadevergoeding worden gevorderd op basis van niet-conformiteit. Artikel 35, eerste lid CISG verplicht de verkoper om zaken af te leveren waarvan de hoeveelheid, de kwaliteit en de omschrijving voldoen aan de in de overeenkomst gestelde eisen en die zijn verpakt op de in de overeenkomst vereiste wijze.

Indien de overeenkomst uitdrukkelijk vermeldt dat het paard aan bepaalde kwaliteiten dient te voldoen, bijvoorbeeld dat het geschikt moet zijn om aan jumpingwedstrijden deel te nemen, zal het paard niet conform zijn wanneer het niet over deze kwaliteiten beschikt.

Vervolgens voorziet artikel 35, tweede lid CISG in vier subsidiaire regels die van toepassing zijn indien partijen niets anders overeenkwamen (S. DE GROOT, “Non-conformiteit volgens het Weens Koopverdrag. Een onderzoek naar de al dan niet uniforme wijze waarop rechters van verdragsstaten de artikelen 35, 38, 39, 40 en 44 van het CISG interpreteren en toepassen”, TPR 1999, 643):

“Tenzij partijen anders zijn overeengekomen, beantwoorden de zaken slechts dan aan de overeenkomst, indien zij:

a) geschikt zijn voor de doeleinden waarvoor zaken van dezelfde omschrijving gewoonlijk zouden worden gebruikt;

b) geschikt zijn voor een bijzonder doel dat uitdrukkelijk of stilzwijgend aan de verkoper ter kennis is gebracht op het tijdstip van het sluiten van de overeenkomst, tenzij uit de omstandigheden blijkt dat de koper niet vertrouwde of redelijkerwijs niet mocht vertrouwen op de vakbekwaamheid en het oordeel van de verkoper;

c) de hoedanigheden bezitten van zaken die de verkoper als monster of model aan dekoper heeft aangeboden;

d) zijn verpakt op de voor zodanige zaken gebruikelijke wijze of indien er hiervoor geen gangbare handelwijze bestaat, op een met het oog op bescherming en behoud van de zaken passende wijze.”

Ook wanneer partijen niet in de overeenkomst omschreven aan welke kwaliteiten het paard diende te voldoen, kan er sprake zijn van niet-conformiteit als het paard niet geschikt blijkt te zijn voor gewoonlijk gebruik van een paard of wanneer het paard niet geschikt is voor een bijzonder gebruik dat uitdrukkelijk of stilzwijgend aan de verkoper ter kennis is gebracht op het tijdstip van het sluiten van de overeenkomst.
Artikel 35, derde lid CISG bepaalt nog dat de verkoper niet aansprakelijk is ingevolge het in het voorgaande lid onder a), d) bepaalde voor het niet-beantwoorden van de zaken aan de overeenkomst, indien de koper op het tijdstip van het sluiten van de overeenkomst wist of had behoren te weten dat de zaken niet aan de overeenkomst beantwoorden.

Het CISG vereist geen wezenlijke niet-conformiteit. Het is aldus irrelevant om te onderzoeken of de niet-conformiteit de bruikbaarheid, de verhandelbaarheid of de waarde van de goederen aantast (13. TILLEMAN, Beginselen van Belgisch Privaatrecht X Overeenkomsten. Deel 2 Bijzondere overeenkomsten. A Verkoop, deel 2 Gevolgen van de koop, Antwerpen, Kluwer, 2011, 444, nr. 533). De impact van de niet-conformiteit is echter wel relevant voor de gevolgen van de niet-conformiteit. De koper kan immers enkel de ontbinding van de koopovereenkomst vorderen in geval van een wezenlijke tekortkoming vanwege de verkoper (art. 49 CISG).

Artikel 38 CISG verplicht de koper om de zaken binnen een, gelet op de omstandigheden, zo kort mogelijke termijn te keuren of te doen keuren. Deze keuring kan gebeuren door de koper of door zijn aangestelden (B. TILLEMAN, Beginselen van Belgisch Privaatrecht X Overeenkomsten. Deel 2 Bijzondere overeenkomsten. A Verkoop, deel 2 Gevolgen van de koop, Antwerpen, Kluwer, 2011, 499, nr. 591). Vervolgens dient de koper binnen redelijke termijn nadat hij de non-conformiteit heeft ontdekt of had behoren te ontdekken de verkoper hiervan in kennis te stellen onder opgave van de aard van de tekortkoming (art. 39, eerste lid CISG). In ieder geval moet de koper zich binnen een termijn van twee jaar na de datum waarop de zaken feitelijk aan de koper werden afgegeven, de verkoper in kennis stellen dat de zaken niet aan de overeenkomst beantwoorden, tenzij er in de overeenkomst een andere garantietermijn werd opgenomen (art. 39, tweede lid CISG). Het protest kan zowel schriftelijk als mondeling gebeuren, aangezien artikel 39 CISG geen vormvereisten voorziet (S. DE GROOT, “Non-conformiteit volgens het Weens Koopverdrag. Een onderzoek naar de al dan niet uniforme wijze waarop rechters van verdragsstaten de artikelen 35, 38, 39, 40 en 44 van het CISG interpreteren en toepassen”, TPR 1999, 667).

Wanneer de niet-conformiteit vaststaat, kan de koper zich op verschillende remedies beroepen. De koper kan een vordering instellen tot nakoming van de verbintenis van de verkoper (art. 46-47 CISG), hij kan zijn eigen prestatie opschorten, de ontbinding vorderen (art. 49 CISG), de prijsvermindering vragen (art. 50 CISG) of een schadevergoeding eisen overeenkomstig de artikelen 74 tot 77 CISG.

Bevoegdheid

Overeenkomstig artikel 591, 150 van het Gerechtelijk Wetboek behoort het tot de bijzondere bevoegdheid van de vrederechter om, ongeacht het bedrag, kennis te nemen van de vorderingen tot koopvernietiging en de vorderingen tot nietigverklaring op grond van een gebrek van de zaak, bij verkoop of ruiling van dieren. Ook wanneer de nietigverklaring van de koopovereenkomst wordt gevorderd op grond van dwaling of bedrog, zal de vrederechter bijgevolg bevoegd zijn.

Wanneer het daarentegen gaat om een vordering tot ontbinding op grond van de Wet Consumentenkoop, behoort het niet tot de bijzondere bevoegdheid van de vrederechter om hier kennis van te nemen. Het is in dit geval de rechtbank van eerste aanleg die op basis van zijn volheid van bevoegdheid bevoegd zal zijn om uitspraak te doen over deze vordering (art. 568 Ger.W.).

Vaak wordt echter, zowel de ontbinding van de koopovereenkomst gevraagd op grond van de Wet Consumentenkoop, als de nietigverklaring van de overeenkomst op grond van dwaling en bedrog. Wanneer het gaat om samenhangende vorderingen, zal het ook de rechtbank van eerste aanleg zijn die bevoegd is op basis van artikel 566 Ger.W, jo. artikel 565, 2° Ger.W. De bevoegdheid van de vrederechter op grond van artikel 591, 15° Ger.W. is immers een bijzondere bevoegdheid en geen uitsluitende (F. VRANKEN, Koop en ruil van dieren, Gent, Story-Scientia, 1979, 186, nr. 283).

Wanneer het gaat om de verkoop van een paard tussen ondernemingen en bijgevolg een daad van koophandel gesteld wordt, is de rechtbank van koophandel bevoegd om kennis te nemen van dit geschil (art. 573 Ger.W.; Kh. Turnhout 13 januari 2016, RW2016-17, 272).

Het vredegerecht te Meise was echter een andere mening toegedaan. De vrederechter achtte zich wel bevoegd om uitspraak te doen over vorderingen tot nietigverklaring inzake de verkoop van een paard tussen twee kooplieden. Volgens de vrederechter zijn de bijzondere bevoegdheden opgesomd in artikel 591 Ger.W. niet alleen van toepassing “ongeacht het bedrag van de eis” maar eveneens “ongeacht de hoedanigheid van de partijen” (Vred. Meise 23 februari 2006, onuitg.).

Wat de territoriale bevoegdheid betreft, kan de vordering naar keuze van de eiser worden gebracht voor de rechtbank van de woonplaats van de verweerder of voor rechter van de plaats waar de verbintenissen zijn ontstaan of moeten worden uitgevoerd (art. 624 Ger.W.).

Katrien BEELEN

Bron: Tijdschrift voor Agrarisch Recht

Gulliksson är samarbetspartner till Flyinge AB

Gullikssons hjärta slår för det lokala samhället och därför är det en självklarhet för oss att vi tar ansvar för och stödjer utvecklingen av förening- och näringslivet i vårt närområde. Genom samarbetet med Flyinge AB vill vi stötta barn och ungdomsidrotten men även de lokala företagen.

Flyinge är en av Sveriges tre riksanläggningar för ridsport. Här utvecklas kunskap, hästar och människor. Flyinge bedriver även ett antal utbildningar och kurser med målet att bli Swedish Equestrian Center of Excellence. Anläggningen är ett modernt hippologiskt kompetenscentrum. Flyinge är ett av världens äldsta stuterier med anor från 1100-talet. Anläggningens huvudfokus är utbildning och evenemang inom ridsport och hästnäringen. Läs mer om Flyinge här.

Genom sponsorsamarbetet kommer det att under det närmsta året att ske mycket spännande evenemang på Flyinge där Gulliksson kommer att synas som samarbetspartner. Bland annat under höstens stora händelse, Henrik Von Eckermanns Clinic som går av stapeln den 31 oktober men också under den framstående tyske topptränaren ”Kaisers” träningar där två högprofilerade ryttare representerar Gulliksson, fälttävlansryttarna Niklas Lindbäck och Niklas Jonsson. Gulliksson kommer även att vara på plats under det unika samarbetet ”Triss i Kaptener” där Sveriges landslagskaptener i hoppning, dressyr och fälttävlan gemensamt håller i en clinc.

I december kommer dessutom vår Partner Cecilia Tholse Rogmark hålla ett föredrag på Flyinge om ”Att köpa, äga och sälja häst – en genomgång av de vanligaste juridiska frågorna för hästägare” boka biljetter och läs mer om detta här.

Gulliksson och Equine Law
Gulliksson erbjuder rådgivning i alla affärsjuridiska frågeställningar och har inom teamet en djup kunskap om hästnäringen och erbjuder rådgivning och specialistkompetens inom Equine Law.
Equine Law är bland annat en del av civilrätten som reglerar köp- och skadeståndsrättsliga frågor men omfattar även områden som idrottsjuridik, arbetsrätt, avtalsrätt, bolagsrätt företagsöverlåtelser samt fastighets- och entreprenadrätt. Gulliksson hanterar alla slags affärstvister – vid allmän domstol, förvaltningsdomstol, myndighet och skiljenämnd. Vi för klientens talan vid förhandlingar, domstolsprocesser, skiljeförfaranden, medling, internationell tvistlösning och vid alternativt tvistlösningsförfarande.

Source: https://www.gulliksson.se/gulliksson-ar-samarbetspartner-till-flyinge-ab/?fbclid=IwAR300bUxlKeEg-as0er2vu6-IIuthoS-fLWKPOa9lKULg3GmefGTIJcrmB4

Schelstraete is successful at The Court of Appeal for a large Equine Business Owner

The client of Schelstraete Equine Lawyers (SEL) is a large Equine Business Owner and organizer of Equine Events all over the world. The client of SEL was negotiating with a Caterer about the catering for an event in Italy.

At some point, the client of SEL was forced to withdraw from the negotiations with the Caterer about the Event in Italy. Because the client of SEL canceled the catering shortly before the event, the Caterer was of the opinion that the client of SEL owed her a very substantial cancellation fee of about € 200.000,-.

The Court of First Instance

The client of SEL was of the opinion there was never an agreement between her and the Caterer and a cancellation fee was not to be paid. The Caterer started a procedure at the Court of Oost-Brabant. On December 21, 2016 the Caterer won the case for the most part.

The Court of Appeal

The client of SEL could not agree with this decision and started an appeal procedure at the Court of Appeal ‘s-Hertogenbosch. The Court of Appeal issued its decision on October 2, 2018 and came to the conclusion that there never was an agreement between the client of SEL and the Caterer. The Caterer needs to pay the amount of about € 200.000,- back to the client of SEL.

Procedure for the determination of the damages

However, The Court of Appeal also ruled that the client of SEL was not yet entitled to stop the negotiations with the Caterer.

The Caterer must now substantiate what her real damages are due to the cancelation. As of the expectations of the client these damages will be only a fraction of the original cancellation fee.

You can find the judgement on www.rechtspraak.nl under number ECLI:NL:GHSHE:2018:4029

The client of SEL was represented by Mr. L.M. Schelstraete en Mr. V. Zitman.

Accident during a horseshow

In this edition of Horse International we would like to discuss the position of the Organizing Committee when it comes to its civil liability arising from or in connection with accidents during an equestrian event. You might have already asked yourselves what happens in terms of liability when an accident occurs during a horse show. Unfortunately accidents do happen and cause damages both to horses and people that at least to some extent might be remedied. This article may shed some light on this matter from the juridical point of view. Drafting this article we decided to discuss the matter based on the example of an event organized under the auspices of the FEI because the FEI provides the Organizing Committee with a legal framework to cover possible liabilities arising from or in connection with the horse show. The FEI schedules have been binding upon various equestrian events around the globe.

Schedule and the exclusion of liability clause

An Event under the auspices of the FEI is organized based on a schedule approved by the FEI. These schedules (usually following from an FEI template) contain inter alia various provisions including an exclusion of liability clause. This clause stipulates that to the greatest extent permitted by law, the organizer, the organizing committee and all persons working for the organizing committee shall not be liable for any material or physical damage, accident or illness which may occur to owners, renters, competitors, horses and grooms, under any circumstances, within or out of the competition ground before, during or after the competitions.

Does this provision work in all cases?

A lawyer confronted with an exclusion of liability clause would try to “attack” this clause on (at least) two levels: i.) the formation of the contract and ii.) the execution of the contract. It is beyond the purpose of this article to go into details regarding the juridical question of the formation of the contract, in other words when and whether the provisions of the schedule had been agreed with the participants. Such would very much depend on the facts and circumstances of an individual case. It is however fair to state that from the juridical point of view, at least in some cases presented to our law rm, the applicability of these provisions in relation to the participants was rather questionable and could be successfully contested. So think of this point whenever the Organizing Committee confronts you with the exclusion of liability clause. For now, let us assume that the provisions of the FEI schedule have been properly agreed upon so that a participant is bound by them. In other words, as this exclusion of liability applies, does this mean that the Organizing Committee cannot be held liable when things go wrong during an event? The FEI developed various rules in order to ensure riders’ and horses’ welfare and safety. With regards to the welfare of the horse, the FEI argues that at all times, the welfare of the horse must be paramount. Welfare of the horse must never be subordinated to competitive or commercial influences. It is good to keep this in mind when interpreting the FEI Regulations and the provisions of the FEI schedule (including the exclusion of liability). Some (local) governments may also impose rules (indirectly) regarding animal welfare. For example, in many countries a permit from the local administrative bodies to organize an event in mandatory. For example, the regulations regarding additional safety measures during extreme weather conditions and re precaution regulations. Getting back to the exclusion of liability clause it is obviously a standard defense of the Organizing Committee or its insurance company to invoke the provisions of the schedule and to argue the Organizing Committee cannot be held liable. It is of course understandable that the Organizing Committee invokes the exclusion of liability. But does this mean that the exclusion of liability implies that the Organizing Committees are not liable for damages in case they breach those regulations that are designed and adopted to protect the people and the horses present during the event?

Intentional misconduct and gross negligence

Under many law systems throughout the world it is not possible to exclude liability for all possible events. For instance, already since the Roman law it has been generally acknowledged that one cannot exclude his liability for “intentional misconduct” or “gross negligence”. Under Dutch law from the facts and circumstances of the individual case it can follow that an exclusion of liability clause can be set aside based on the principles of reasonableness and fairness (redelijkheid en billijkheid). A violation of the FEI Regulations and / or other safety regulations could therefore lead to the Organizing Committee’s liability even if the exclusion of liability has been agreed upon. The Dutch Court held for instance the Organizing Committee of an eventing competition liable because of the fact that during the cross country part of the competition an obstacle was not secured – which is mandatory according to FEI rules. The horse stumbled, the obstacle turned over and the horse broke its back. The horse needed to be euthanized directly. The Organizing Committee was liable despite the exclusion of liability. The judgment was subsequently upheld by the Court of Appeal. The Organizing Committee argued before the Court that when a competitor enters the competition with his horse it implies that he accepts the risk that both the horse and the rider could be injured during that competition, especially during a risky activity like eventing. This argument of an implied waiver by the participant did not help the Organizing Committee: the Organizing Committee was held liable for the damages consisting of i.) the value of the horse and ii.) the damages suffered by the competitor who got injured during the accident as well. Participants of the equestrian events must be of course aware of the risks involved into the equestrian sport but it is the job of the Organizing Committee to keep those risks as low as possible by strictly following the FEI

Regulations and local governmental regulations.

But where is the line drawn between being liable and not being liable? If the Organizing Committee makes a mistake during the organization of the event or during the event itself, does this always imply that they could successfully be held liable? Will the exclusion of liability clause be then of no effect? A good example is a case decided more than ten (10) years ago by a Court in the South of the Netherlands with regards to an FEI World Cup Dressage competition. During this Event a horse got injured because of a ve (5) cm nail in the riding surface of the arena. Soon rumors emerged that more nails where found just before the competition started, but this could not be proven. Although the Organizing Committee of this dressage event was by law liable for the damage suffered as a result of the nail found in the arena the Court decided that the exclusion of liability clause was applicable. The applicability of the exclusion of liability clause led to the Organizing Committee being released from liability. Additionally, the Court was of the view that the rider could not prove that there were found multiple nails and that the rider was not able to prove that the Organizing Committee failed in taking enough precautions. The outcome of this case was from our point of view not satisfactory. We believe that the Organizing Committee must – in the light of the FEI Regulations – at all times ensure a safe arena for the horses competing in the event in question.

Conclusion

The answer whether an Organizing Committee can escape liability by invoking the exclusion of liability clause or not depends on the relevant facts and circumstances of the case. But one thing may be regarded as certain: an Organizing Committee should always keep in mind that all the FEI regulations and (local) governmental regulations need to be implemented and respected, if not, this could lead to ‘negligence’ and liability instead of acceptable sport risks. According to the FEI, an Organizing Committee should also be properly insured against these liabilities. Unfortunately, in practice this is not always the case. On a separate note, obviously it is advisable for the participants to be properly insured against damages and losses following from an equestrian event. The insurance may also remedy damages and losses in times when an Organizing Committee has complied with the FEI Regulations and/or (local) governmental regulations and can successfully escape liability for the damages suffered by the participants.

Provisional suspension and disqualification due to contaminated hay

The Person Responsible is a jumping rider for Ireland and took part with his Horse at the CSI5* GCT/GCT in Hamburg, Germany.  Samples for testing were taken from the Horse on 27 may 2017.

The banned substance Demecolcine was found in the A sample of the Horse. Demecolcine is used for Rheumatic treatment and Chemotherapy and is classified as a banned substance under the FEI Equine Prohibited Substances List. The Person Responsible and the Horse both had imposed a Provisional Suspension of two months.

Since the proceeding were opened Demecolcine was reclassified on the FEI Equine Prohibited Substances List as a **Specified Substance on 1 January 2018. Demecolcine is a metabolites of the Autumn Crocus and therefore can enter the Horse’s system through contaminated hay.

The most likely plausible explanation for how the Substance entered the Horse’s system is contamination of Autumn Crocus in the feed at the Event. Further, there are other cases from 2017 in which the Horse also ate the hay at the event.

The FEI agreed the Person Responsible bore no fault or negligence for the Substance in the Horse’s system. The Person Responsible and the Horse were automatically disqualified from the event but the FEI ruled that no further sanctions should be imposed.

Information on all substances is available on https://inside.fei.org/fei/cleansport/ad-h/prohibited-list. Further information on this case can be found on https://inside.fei.org/fei/your-role/athletes/fei-tribunal/ead-decisions

Received a letter from the FEI yourself? Please contact us and we are happy to give you advice and represent you in the procedure with the FEI. You can reach us via info@schelstraete.nl or +31 (0)13 511 44 20.

Source: www.fei.org

Schelstraete Equine Lawyers wins first digital case

The dispute

An international jumping rider from Kuwait had a shared ownership in seven horses and three foals together with a Dutch Stable. After spending the summer in The Netherlands for training, the client of SEL decided to go back to Kuwait and sell his ownership shares in the horses to the Dutch Stable in order to get the full ownership of the horses. Parties therefore signed a written agreement.

After being back in Kuwait the client of SEL had to conclude that the Dutch table wasn’t going to pay him for the ownership shares. That is why SEL submitted the case to the Court Gelderland, location Arnhem.

Digital case

Since September 1st, 2017 attorneys are obliged to submit their procedures at the Court Gelderland and the Court Midden-Nederland via a digital program called “KEI”. The aim of “KEI” is to make the law more understandable and the procedures quicker.    

In this case the Court ruled in favor of SEL’s client via digital judgement that the Dutch Stable is obliged to fulfil her payment for the ownership shares in the horses as agreed in the signed agreement.

U can read more about “KEI” and the digital procedure on www.rechtspraak.nl

The client was represented by Mr. P.M. Wawrzyniak as litigator at the Court and Ms. C.M. van Zundert from Schelstraete Equine lawyers.

If you have any questions or if you are having a dispute yourself, please don’t hesitate to contact us via info@schelstraete.nl or +31 (0)13 511 44 20, we are happy to assist you.

Former Eurocommerce Director and His Son, Sentenced to Pay Back More Than 11 Million Euros to the State.

The bankruptcy of Eurocommerce in 2012 was one of the largest in the Dutch real estate history. Eurocommerce was at the time the owner of the world renowned, 2012 Olympic silver medalist, horse London, which was ridden by Gerco Schröder.

The horse owner and real estate mogul stood trial for bankruptcy fraud, money laundering, fraud and forgery as it turned out that Mr. Visser had taken loans from banks on basis of forged lease contracts. When his company went bankrupt in 2012, he owed the banks more than 700 million euros.

In 2016, the court sentenced Mr. Visser and his son to three and a half and one year in prison respectively for bankruptcy fraud.

However the case has proven to be far from done; last week the District Court of Overijssel in the Netherlands ruled that much of the money obtained by the father and son was obtained illegally as they had, just before the bankruptcy, withdrawn millions of euros from Eurocommerce.

The court therefore sentenced Mr. Visser to pay back € 6.4 million and his son € 5.2 million. According to the court, despite the business and the private bankruptcy of Visser, there is no reason to believe that he and his son are not be able to pay back.

Agent Liability and Personal Liability of Company Director Who Sold a De-Nerved Horse as a Sporthorse for €320.000

Buyer, a German legal entity, bought a mare from Seller, a Dutch legal entity, for € 320.000. The rider of the horse acted as the agent in the sale.

The purchase agreement implied, that the horse was bought with the intention to use it as a competition horse.

Shortly after purchase the horse turned out to be lame and the veterinarian noticed that the horse had been de-nerved, (A.k.a. Neurectomy, which is a type of nerve block involving the severing or removal of a nerve) and the horse could no longer be used as a competition horse.

First Instance

Buyer annulled the purchase agreement on grounds of mistake and the court in first instance (2011), ordered Seller to take back the horse and to refund the purchase price within 48 hours after judgment.

Seller first declared she would pay back the purchase price however ultimately she did not fulfill her payment obligation and nine months later informed Buyer that she was not able to refund the purchase price because there are no assets left in the company.

Court of Appeal – Director’s liability

Since Seller was unable to effect the payment to Buyer, the refund was claimed from the director of Seller, The Company,

The court indicated that the director of a legal entity (even a limited liability company) can, if the claim of a creditor remains unpaid, be held liable for compensation if he has acted carelessly.

The Court of Appeal therefore ruled that The Company, Management Company B.V. and [Seller 3], as (indirect) directors of Seller, acted negligently towards Buyer in such a way that they can be personally blamed for this, because:

– either, Seller still has sufficient assets or financing capacity to fulfill its obligations to refund, but have failed to use these assets to fulfill her obligation,

– or, while the capital required for the fulfillment of its obligations to Buyer was still present in Seller in 2011, they as directors, had withdrawn it from Seller and thus ensured that this capital was no longer available to refund Buyer.

Liability Agent

With regard to the agent, the Court of Appeal ruled that he had acted unlawfully against Buyer by giving incorrect and / or incomplete information to the vet about the medical history of the horse during the horse´s pre-purchase inspection and ordered the agent to pay damages amounting to € 36,212.54.

This is because when the veterinarian asked about the medical history of the horse, the agent did not disclose information about the treatment and lameness of the horse. The Court argued that an agent who has relevant information about the horse is expected to share this information with the buyer, at least if asked about it.

Source: https://uitspraken.rechtspraak.nl/inziendocument?id=ECLI:NL:GHDHA:2017:3209

FEI Parental-and-Medical-Leave Rule Change for Dressage World Rankings

The FEI has adjusted its rules regarding dressage rankings. Riders will soon be able to take parental and medical leave and still retain part of their ranking points.
During the period under which an athlete has stopped to compete due to pregnancy or a medical condition, he/she will retain 50% of the Dressage World Ranking points earned from the corresponding month of the preceding year until he/she recommences competing internationally.

The minimum length of time for which an athlete may be granted a maternity/medical leave is six months. If the leave lasts less than six months no points will be retained from the corresponding month of the previous year. While the maximum length of time an athlete may benefit from a maternity/medical leave at one time is twelve months. The Athlete concerned will have to inform the FEI Dressage Director when he/she resumes international participation.

Source: FEI

2nd Annual Alliance Meeting

On the 5th and 6th of July 2018, the second Annual Alliance meeting will be held in Paris. In this meeting our partners will have the opportunity to share experiences and get acquainted with our three new Alliance Partners from IndiaPoland and the USA,

Partners and external speakers will share their view on Horse Welfare, Equine Deals, Pre purchase vetting and other equine related topics.

Newly Formed Teams for World Equestrian Games 2018; The Trend of Changing Nationality.

The World Equestrian Games (WEG) are just around the corner and the worlds equestrian teams are getting ready. In previous years several riders changed nationality to Ukrainian to benefit their riding career, some of these have recently changed back to their original nationality.

In September 2018 Israel will have a show jumping team representing the country on the international stage of equestrian sports for the first time.

American Ashlee Bond is one of several riders to switch to Israeli citizenship recently. Alberto Michan, previously of Mexico, did so as well earlier in 2018 and Daniel Bluman, formerly of Columbia, took up the Israeli nationality in 2017. 

Although all countries have their own rules on how to acquire their nationality, the Fédération Equestre Internationale (FEI) also poses some additional rules for riders who change their nationality.

The FEI must approve the sport nationality changes in order for those to be valid. The FEI has also inserted a waiting period requirement consisting of a two-year gap between the last FEI Championship or CIO team participation for the previous country and the first participation in these categories under the new sport nationality. There is also a “residency “ requirement however this has many exceptions such as birth in the country or nationality acquired by means related to family heritage.

Additional requirements may be imposed by the Olympic Committee.Bye-law to rule 41 of the Olympic Charter states that a competitor who has represented one country in the Olympic Games, in continental or regional games or in world or regional championships recognized by the relevant International Federation (IF), and who has changed his nationality or acquired a new nationality, may participate in the Olympic Games to represent his new country provided that at least three years have passed since the competitor last represented his former country. This period may however be reduced or even cancelled, with the agreement of the National Olympic Committees (NOCs) and IF concerned, by the International Olympic Committee (IOC) Executive Board, which takes into account the circumstances of each case.

FEI World Equestrian Games 2018 will be held at the Tryon International Equestrian Center in North Carolina (USA) from 11-23 September 2018.

We wish all the participants best of luck.

Rider Suspended For Two Months After Extensively Whipping His Horse

FEI Rules On Yellow Cards And Use Of Whip.

Rider Ben Talbot got suspended for two month following a second yellow card within the short timeframe of 3 months. The rider struck the horse Everglade with his whip a several times and spurred him repeatedly after a refusal coming to the water jump. The onsite ground jury reacted immediately, ringing the bell and calling the athlete to the jury box. The rider was disqualified from the entire show and asked to take all his horses leave the showground.

The FEI code of conduct for the welfare of the horse states that abuse of a horse using natural riding aids or artificial aids (e.g. whips, spurs, etc.) will not be tolerated and article 243 of the General Regulations state when the use of whip is excessive. It states: 1) The whip may not be used to vent an Athlete’s temper. Such use is always excessive; 2) The use of a whip on a Horse’s head is always excessive use; 3) A Horse should never be hit more than three times in a row. If a Horse’s skin is broken, it is always considered excessive use of the whip; and 4) The whip is not to be used after Elimination;

Moreover it says that an athlete identified as misusing or excessively using the whip will be disqualified and may be fined at the discretion of the Ground Jury

The rider had been given the first yellow warning card by the ground jury at the CSI4* Arezzo horse show in April. As this violation was the riders second yellow card, he got suspended for two months following article 169.7.2 of the FEI general regulations. (20 June 2018).

EUAEL’s network expanding with new partners in India and Poland

Our network of alliance-partners is growing! We are happy and proud to introduce two new Alliance-partners: Kevic Setalvad from Mumbay (India) and Lex Hippica, based in Warsaw (Poland).

Both law firms have strong ties with the Equine industry; Anita Garnuszek (from Lex Hippica) has worked for an arbitrator of the Court of Arbitration for Sport at the Polish Olympic Committee, also as legal advisor for Polish and foreign breeding and sport stables.

Kevic Setalvad is a 4th Generation Lawyer practising in the Bombay High Court, the Supreme Court of India and the various other High Courts across India. His association in the equestrian world is as one of the prominent owners of sport horses in India. Both his sons, Kaevaan Setalvad and Zahan Setalvad, are the premier showjumping riders of India.

Read more about Lex Hippica.

Read more about Setalvad.

 

The horse Justice, an unusual plaintiff, is suing his previous owner for neglect.

The horse called Justice is the plaintiff in a recently filed case in Hillsboro, Oregon (USA). The horse was neglected at his previous home and sustained injuries. The previous owner pleaded guilty to animal neglect in criminal court and paid all restitution costs up until July 2017. Now the horse is suing his previous owner for, amongst others:   

– Economic damages for costs of care incurred from July 6, 2017 to present and future costs of care in an amount to be determined at trial but not less than $100,000;

– Non-economic damages for pain and suffering in an amount to be determined at trial;

According to Animal Legal Defense Fund Executive Director Stephen Wells, Oregon law already recognizes an animals right to be free from cruelty and that therefore this lawsuit simply expands the remedies available when abusers violate animals’ legal rights.

Although the law in Oregon legally classifies animals as property/goods, the Oregon Supreme Court has already recognized in an earlier case that animals should be considered individual “victims” in criminal animal cruelty cases.

We at Schelstraete Equine Lawyers are curious to see how this case will evolve. Perhaps in the future, animals will be able to sue other animals?

You can read the Animal Legal Defense Fund´s statement and the legal claim by following this link: http://aldf.org/press-room/groundbreaking-lawsuit-argues-animals-right-sue-abusers-court/

 

Horse With Sweet Itch Declared Non-Conform: Purchase Agreement was Dissolved and Damages Awarded

In this most recent case won by Schelstraete Equine Lawyers (SEL) before the Court of Appeal in The Hague, a horse, which was sold to be a dressage horse, turned out to have sweet itch (also known as: SSRD or summer itch). Sweet itch is a chronic, season-related skin allergy which often shows as rash-looking sores on the horses body.

Unsuitable for Sport

The sweet itch was severe and made the horse very sensitive and difficult to ride. Veterinarians affirmed that horses with sweet itch are less suitable to be performing physical work as sweating may cause severe itching. Some horses might even not be able to have a saddle on.

Judgment of the Court of Appeal

SEL were able to prove that the horse had sweet itch already before it was sold and it appeared that the seller was aware of this but did not communicate it to the buyer. The Court of Appeal agreed with SEL´s argumentation and ruled that the horse was non-conform, as it is not fit as a sport horse. On the basis of this, SEL´s client could dissolve the contract and receive the money she paid for the horse back.

SEL´s client was also awarded damages for stabling costs, transport and treatment of the horse.

The buyer was represented by Ms. Amanda Brouwers from Schelstraete Equine Lawyers

Image: TDS-saddlers.com

Alleged Neurectomy Case Won by Schelstraete Equine Lawyers

Graphic from Cornell University’s College of Veterinary Medicine. Source


In the case at hand Schelstraete Equine Lawyers (SEL) assisted the seller of a horse. Prior to the realization of the purchase agreement the horse was inspected at the request of the buyer, which resulted in a positive sales advice from the vet. A year after the purchase of the horse, the buyer reported to the seller (our client) that her veterinarian suspected that the horse had undergone a neurectomy procedure. (This is a type of nerve block involving the severing or removal of a nerve, also commonly called de-nerving).

According to the counterparty, due to the neurectomy, the horse would not be suitable for the purpose for which it had been purchased: to partake in FEI dressage competitions. According to FEI rules, a horse which has undergone neurectomy procedure may not participate in FEI competitions.

In the legal proceedings the buyer claimed termination or annulment of the purchase agreement, whereby both the purchase price and damage suffered as a consequence were claimed.

The judge rejected the claims of the buyer. The judge agreed that indeed the FEI rules state that a horse may not participate in FEI competitions after neurectomy is performed, however, it is up to the buyer to prove that competing in FEI competitions was the intention of the agreement and the purpose of the horse. The court ruled that the counterparty failed to prove that the intention with the purchase and purpose of the horse was to partake in FEI competitions.

For this reason, the question whether or not a neurectomy procedure had been performed was left unanswered. Whether or not a neurectomy had been performed was unimportant as even if it had been performed, this does not stand in the way of using the horse for recreational purposes as seemed to be the case in the case at hand.

Our client was represented by mr. Luc Schelstraete and mr. Amanda Brouwers

Schelstraete C.S. Advocaten wins procedure: claim of buyer of horse about an alleged problem in the coffin bone is rejected

Above Hoof Illustration by Elisa Crees.


SEL represented the seller of the horse, she owned the horse for more than 20 years. Seller stated that the horse was never lame and always sound. Due to personal issues in life seller decided to sell the horse to the son of a friend of her. A full vet check was performed, advice: ‘acceptable risk’. No MRI-scan was performed. A couple of days after delivery a farrier treated the horse and attached new shoes. A few days later the horse was suddenly lame when lunged. The buyer brought the horse to the vet and because of the fact the horse did not recover within a couple of weeks a MRI-scan was performed. Outcome? Damage of the bone oedema in the coffin bone. The horse was not suitable as a dressage sport horse now and in the future.  

The buyer annulled the agreement and claimed damages from the seller, the client of SEL, as well as the vet, stating that the horse did not comply with the agreement. Only a couple of weeks after the delivery the opinion of the vet was that the horse was not suitable as a dressage sport horse, while the buyer bought the horse as a sport horse.

The Court dismissed all claims and the client of SEL won the case. There was no consumer purchase and the buyer did not prove sufficiently that the horse suffered from the injury in the coffin bone at the moment of delivery. Also the claims of the buyer against the vet were dismissed: performance of a MRI-scan is not standard during a pre-purchase examination so there was no professional misconduct at the side of the vet. The problem of the buyer was that the lesion in the coffin bone could be the result of a long term progressive condition or the result of an acute injury. As there is no consumer purchase the buyer needs to convince the judge that the problem was there at the moment of delivery. When an injury could have multiple causes the risk of not being able to prove the exact cause is on the buyer.  

The client was represented by Luc Schelstraete and Amanda Brouwers.

FEI Blood Rule Eliminates Rider During the 2018 World Cup in Paris

Irish rider Denis Lynch was eliminated after the second leg of the Longines FEI World Cup Jumping Final in Paris after blood was found on his horse All Star 5. Dennis did not compete further in the 3d round.

A statement from the event organizers said: “All Star 5, the horse ridden by Ireland’s Denis Lynch, has been eliminated under FEI jumping rule article 241.3.3 after blood was found on the horse’s flanks in the post competition check.”

“Elimination under article 241.3.3 and article 241.3.31 does not imply that there was any intent to injure the horse, but it is crucial that the rules are enforced in order to ensure that horse welfare is protected.”

To find out more about the FEI Blood Rule and the discussion around it, read Horse Internationals interview with us on the topic, by following this link.

Source: Horse and Hound

The Dutch Foundation Dier & Recht calls for more legislation in the Equine sector.

The Dutch Foundation Dier & Recht (Animal & Law) conducted research into the life situation of stabled horses. The inspectors of Dier & Recht are reportedly very concerned about the wellbeing of the horses. – They ruled that in 85% of the riding schools the welfare of the horses was ‘insufficient’ to ‘bad’.

The inspectors visited a total of 53 riding schools. The report called ‘Abuse at ridging schools’ states that: ‘A large proportion of the horses have serious psychological and physical problems, due to the living conditions in these stables.’

What the animal rights organization particularly noticed was that the stables were far too small. They were sometimes completely closed so that the horses could hardly enter into ‘long-term relationships’ with each other. The report also pointed out that the horses had far too little free movement and not enough or bad quality feed.

Worrying Conclusions

‘The way of dealing with the welfare problems in stables is worrying’, said the foundation Dier & Recht. Equine companies ‘are grossly inadequate in animal-friendly management of their business’.

‘Legislation is needed’

In both the Netherlands and Belgium there is no specific legislation for horses and it is assumed that it is a ‘self-regulatory sector’. ‘That does not work’, a spokeswoman for Dier & Recht now concludes. “The government must protect horses. And that requires legislation.’

The foundation would prefer that inspectors learn to recognize the welfare problems and receive guidelines from the animal police so that they can enforce them. According to Dier & Recht, the 2011 Horse Decree (Paardenbesluit, 2011), drawn up by the Dutch Animal Protection organization, could be a good start for arriving at legislation.

The report has received some criticism of being vague in relation to what kind of facilities were inspected and for focusing on temporary issues at time of inspection. The Federation of Dutch Equestrian Sports Centers has announced that they want to discuss this report with Dier & Recht and the Dutch Animal Protection organization to find out more about the basis of this report.

We at Schelstraete Equine Lawyers are curious to follow the development post the release of this report.

Source: RTL Nieuws / Hoefslag

FEI´S Back Boot Ban Did Not Effect Carlos Lopez´S World Cup Participation…

…But Might Have Influenced His Sunday Decision.

Carlos Lopez´s Friday round in the World Cup certainly drew a lot of attention as the horse Admara 2 jumped clear with a rather excessively stretched out hind end over the jumps. The exaggerated leg use raised questions during the press conference after the class.

Back boots will be banned

The FEI jumping director John Roche responded that the FEI has taken the decision to get rid of performance enhancing hind boots over a staggered period of time, referring to the back boot rule change which is gradually coming in to force between 2019 and 2021. The time frame for this rule is based on the qualification system for the Olympic games.

Roche did however continue with: “Having seen the horse participate this evening one could definitely consider that this [the horse’s action] was totally exaggerated and for sure that’s something we’ll be taking up with this particular rider.”

The Sunday World Cup Round

It was later announced that the rider informed the FEI that the horse would only wear hind boots for protective purposes in the Sunday class. The FEI also stated that “As with all jumping horses competing at FEI events, the horse’s hind boots will be checked prior to the competition.” No other measures were taken.

FEI 2018 Jumping Rules

Article 257 2.5 of the Jumping Rules banns the use of hind boots other than those used for protective purposes only. The rule will come into effect gradually during a three-year period, starting with pony riders, children, amateur owners, and veterans on 1s of January 2019.

The Article states: For implementation as of 1 January 2019: Only boots used solely for protective purposes, as described in the FEI Jumping Stewards’ Manual, may be used in FEI Competitions for Pony Riders, Children, Amateur Owners and Veterans.

For implementation as of 1 January 2020: Only boots used solely for protective purposes, as described in the FEI Jumping Stewards’ Manual, may be used in FEI Competitions for Juniors, Young Riders and U-25.

For implementation as of 1 January 2021: Only boots used solely for protective purposes, as described in the FEI Jumping Stewards’ Manual, may be used in FEI Jumping Competitions.

We at Schelstraete Equine Lawyers encourage our readers to familiarize themselves with these new rules.

image: Thin Line

FEI Blood Rule Eliminates Rider During the 2018 World Cup in Paris

Irish rider Denis Lynch was eliminated after the second leg of the Longines FEI World Cup Jumping Final in Paris after blood was found on his horse All Star 5. Dennis did not compete further in the 3d round.

A statement from the event organizers said: “All Star 5, the horse ridden by Ireland’s Denis Lynch, has been eliminated under FEI jumping rule article 241.3.3 after blood was found on the horse’s flanks in the post competition check.”

“Elimination under article 241.3.3 and article 241.3.31 does not imply that there was any intent to injure the horse, but it is crucial that the rules are enforced in order to ensure that horse welfare is protected.”

To find out more about the FEI Blood Rule and the discussion around it, read Horse Internationals interview with us on the topic, by following this link.

Source: Horse and Hound

No provision has been made (yet) for the free movement of horses once the UK leaves the EU

The following interesting article drew the attention of one of our alliance partners (Jeremy Kleinfeld of DKLM). The article warns about the lack of provisioning regarding free movement of horses between the Europe and the UK. This article was written with horse racing in mind, but the issue will also affect other disciplines, such as dressage.

The article can be read on Dailymail.

Schelstraete Equine Lawyer’s wins appeal in summary proceedings regarding the inaccurate seizure of client’s horses as well

In August 2017 Schelstraete Equine Lawyers (SEL) needed to file a summary proceeding before the court of Zeeland-West-Brabant to fight the inaccurate seizure of the horses of Mr. van der Endt, a client from SEL. Mr. van der Endt returned home from his holiday, only to find out that his two horses had been seized by a bailiff. Mr. van der Endt as well as SEL contacted the bailiff to inform her that Mr. van der Endt was the owner of the horses and substantiated the ownership with documents. Despite this substantiated claim the bailiff refused to release the seized horses.

SEL won the case but the bailiff filed an appeal against the Court decisions. The questions is why. She did not file a complaint against the decision of the Court regarding the lift of the seizure on the horses, but only complaint against the fact that Mr. van der Endt filed a summary proceeding against the bailiff office (and her as a bailiff) next to the seizures of the horses as well.

The Court of Appeal judged that the bailiff office did not have a legal interest in filing the appeal against the verdict of the Court and rejected – after pleadings of both lawyers – the appeal of the bailiff office. The bailiff office was convicted in the procedural costs of Mr. van der Endt again. Another victory for Mr. van der Endt in this case. SEL is now busy preparing a lawsuit against the seizures of the horses as well as the non-cooperative bailiff to claim damages.”

Special (part 3): Meet the EUAEL Alliance in an Interview with the Partners

Group-Alliance-special-HI

AN ALLIANCE OF THE WORLD’S LEADING EQUINE LAW FIRMS
European US Asian Equine Lawyers is an Alliance Group founded by Schelstraete Holding B.V. with its head office in Oisterwijk, the Netherlands. The Alliance Group has independent partners in Europe, Asia and the United States and is still growing. The Alliance Group can help clients world- wide with contracting, purchase assistance, Sports law, FEI Doping cases and Litigation. It is our pleasure to introduce to you the last two members of the Alliance Group.

 

Monika Gattiker, LANTER Attorneys & Tax Advisors

ZÜRICH-SWITSERLAND

m.gattikker

How many lawyers does your firm comprise?
11 lawyers.

Which eld of law does your firm specialise in?
We provide specialised lawyers for all legal requirements of corporate clients.

Who are your “most common clients” in the equine law practice?
The riders.

Which other fields of law do you often see applied together with equine law?
Commercial law.

How come you chose to specialise in equine law?
As a horse owner and person with more than 40 years of riding experience it seems self- evident to work in this eld. My commercial focus and the special interest in life sciences and health care is also very useful for my work in equine law.

What are the ties of the firm to the equine world?
One of our partners used to own racehorses, and as mentioned earlier, I have close ties to the equine world.

Why do you find it important to have lawyers specialising in equine law?
In order to assist equine law clients and serve their best interest it is required to have broad knowledge about horses, the horse business and in fact the entire equine world, as well as, to have experience in the equine world. Further, there is a speci c arbitration law applicable to equestrian sport matters, which comprise a number of traps for persons who are not familiar with these rules and regulations. Equine law is a specialisation as, for example, maritime or aviation law.

What are the most common issues arising in the field of equine law?
Medication/doping cases and disputes related to horse purchases.

What has been one of your most challenging cases?
A horse abuse case in 2008 involving a very well known rider. There was no evidence except from 8 statements of witnesses on behalf of the FEI. Finally, we could prove that the witnesses had been “briefed” by the deputy chief steward. The hearing was 10 hours, and it was a tough ght to achieve relieve from the accusations. The FEI Tribunal made clear in its decision that it would have suspended the rider for at least two years had they been convinced of the accusations.

Longest/shortest case?
2 years/3 weeks

How do you see equestrian law has developed through the last years?
It is a growing industry, getting more professional and more commercial.

How do you see the eld developing in the future?
There will be more international and more substantial horse deals.

Which issues within equine law do you see appear (more often) in the coming years?
Disputes between seller and buyer.

How long has your rm been a part of the EUAEL alliance?
One year.

Why is it so important to have a worldwide alliance of equine lawyers?
The equine world is international, and therefore there are often questions related to a different jurisdiction.

How does your client bene t from the rm being a part of the EUAEL alliance?
We can also cover our client’s requests if they concern questions related to foreign law or cross border issues.

 

MR. LUC SCHELSTRAETE, SCHELSTRAETE EQUINE LAWYERS

OISTERWIJK, THE NETHERLANDS

Luc-uitsnede

How many lawyers does your firm comprise?
Six lawyers, two paralegals.

Which field of law does your firm specialise in?
Equine law at an international level.

Who are your “most common clients” in the equine law practice?
Our most common clients are the horsedealers, top riders and equine business managers.

Which other fields of law do you often see applied together with equine law?
Together with equine law we are also very active in doping cases, international procedural and transctional law, business law and tax law. Also veterinary legal issues are being dealt with.

How come you chose to specialise in equine law?
Before I founded the law firm Schelstraete Advocaten in the Netherlands, I was riding horses. I competed in jumping, dressage and also a little bit in eventing. So I was already infected with the equine bacteria in my childhood days. After finishing law school I was immediately consulted by clients with equine related issues which made me conclude that the equine legal business was an enormous niche. At first our scope was limited to Dutch clients, but as the legal world developed into an international arena we developed our international practice.

What are the ties of the firm to the equine world?
Our ties as equine lawyers with the equine world and sports are very tight. Several of our employee’s and alliance partners are active as horse owners and even as riders. Separate from my activities as an equine lawyer I spend a lot of time in the equine sports. My wife Jonna is an international dressage Grand Prix rider and our daughters Amber (12) and Micky (13) ride dressage and show jumping ponies. Micky is member of the Dutch A squad of dressage ponies since 2017 and already competed at the European championships in Kaposvar. Jonna and I work together in selecting potential dressage ponies and horses which will be trained and competed with. Several of the top talents have left our stables and are still competed with international riders. I refer to Buriel with Juliette Ramel, this combination competed at the Olympic Games in Rio and Alcazar with Catherine Bateson but also to well known horses like Verdict, Bonzanjo, CSI, Witness, Cupido and Grand Charmeur. The last two are still in our possession and doing great.

Why do you find it important to have lawyers specialising in equine law?
To be able to handle equine cases it is mandatory to know the equine language and network without which you simply cannot act in the interest of your client. This is only possible if one is specialised.

What are the most common issues arising in the field of equine law?
The most common cases we deal with are assistance at selling and buying horses, contracting, dispute resolution if these deals cause problems, doping cases and corporate/tax advise for international clients investing in the equine business.

What has been one of your most challenging cases?
The most challenging cases were the claims of a Swedish family buying several very expensive dressage horses in Europe finding out that both horses were suffering from veterinary defects and their supposed independent trainers received large non disclosed sums from the sellers, therefore abusing the trust that this family gave them. In both les court claims were granted and settlements in favour of our clients achieved. These actions took on average 4 years. In these cases it was established and confirmed by the German Courts (also in appeal) that commissioners acting for the buyers are not allowed to accept payments from the sellers. The court of appeal in Celle (Germany) also ruled that the commissioner involved is liable to the buyer to compensate the complete investment in the horse bought. In this particular case the commissioner not only has to pay to buyer the commission fee but also the complete purchase price, all together more than 2 million euro.

How do you see equestrian law has developed through the last years?
I’m happy to observe that the equine law has developed into a niche contributing to make the equine business more transparent and professional. This will continue in the future with better due diligence when buying and selling horses with contractual documents and a more professional dispute resolution.

How do you see the eld developing in the future?
The number of doping files will absolutely grow. The same will occur in litigation regarding horse deals.

How long has your firm been a part of the EUAEL alliance?
From the very beginning, as I’m the founder of this Alliance. This Alliance is the best option to offer our clients high level equine law service and knowledge. Via this group of top equine lawyers in the world we can be very proactive and fast if trans border problems arise for our clients. Our bene t is being able to work with local well equipped partners who are ready to act immediately at a high professional level.

Not staying behind

In the recent editions of Horse International the Alliance and its members have been presented to the readers of this magazine reflecting on their firms and individual experiences in the equine business and equestrian sports. On behalf of the Alliance we would like to thank the readers, the members and the editors of the magazine for giving us this opportunity. We are convinced that in the future, international cooperation will only further increase, and that initiatives like the Alliance will prove its high added value to the clients. It is a fact that the world these days is undergoing the process of globalization, relativizing physical and geographical boundaries between continents and distances and differences between cities like Amsterdam, Shanghai, New York etc. You can physically be in Amsterdam and work on a case in Shanghai or in New York. The legal industry cannot stay behind this development. International and specialized legal services are the right answer to the needs of our clients and the modern times.

Ramel Wins Insterburg Lawsuit on Basis of Fraud

Source: Eurodressage

Ramel and Insterburg (Photo © Astrid Appels)

For almost eight years, the Ramel family has been battling in court over the sale of the Trakehner licensed stallion Insterburg. The German appeal court in Celle has now ruled in favour of the Ramel family on the basis of “fraud”.

German equestrian magazine Reiter Revue broke the news that the Ramel family won in front of the Appeal court of Celle.

In April 2010 Antonia’s mom Henriette Ramel bought the then 11-year old licensed Trakehner stallion Insterburg (by Hohenstein x Giorgio Armani) from Dirk Schultzke, who had inherited the horse from his late father. He had no interest in keeping horses.

Under Carola Koppelmann, the black stallion had won the bronze medal at the 2005 Bundeschampionate and was becoming successful at Grand Prix level, finishing 8th at the 2009 German Grand Prix Championships.

Antonia Ramel tried out the horse twice. The first time outside in the forest instead of in the indoor arena, as the seller’s representative disclosed that the horse was going to be on the German national team and they did not want anybody to know they were going to sell it. Ramel acquired the stallion as her future Grand Prix ride.  Unfortunately only 2.5 months after the stallion’s arrival in Sweden he developed soundness issues and Ramel wanted to have him returned under warranty.

They first tried the Swedish court, but as the horse sold in Germany, they were referred to German court. The case was first presented in the Court of Hanover, where they won, but the defendants appealed. Then the case moved to the Appeal Court in Celle, where Ramel won again.

Ramel purchased Insterburg for 1.6 million, of which no less than five middlemen received commission fees. Owner Schultzke ended up with 1.04 million himself, from which he paid agent Alexandar Kretschmer 240,000 euro commission fee and rider Carola Koppelmann 120,0000 euro.Ramel’s German lawyer Burkart Fischer told Reiter Revue that “in horse dealing big commission fees are paid to consultants, riders, and trainers, often without the knowledge of the buyer. The verdict of the court now puts a stop to this bad habit.”

“The commission payments by the seller to the rider of Insterburg and his representative were as such not problematic for the Court of Appeal and its expert, the director of Landesgetüt Celle. Schultzke was free to do with the purchase price he had received what he wanted. However, I would say only in abstract terms because from my personal point of view a price of 1,04 million euro’s for a horse with severe injuries like Insterburg in 2010 was far too high,” said Ramel’s lawyer Piotr Wawrzyniak, who worked with Fischer on the case.

The remainder of 560,000 euro was split between three further agents, Mr Baumeister (120,000 euro), Ralf Isselhorst (130,000 euro) and Ramel’s Swedish based Danish trainer (310,000 euro). Ramel was unaware that her own trainer and confidant had also received commission fee.

“Problematic was the payment of 560,000 euro, of which the plaintiff Ms Henriette Ramel was not informed of and of which large part was paid to her advisor. This payment was fraudulent,” said Wawrzyniak.


“In none-juridical terms we could call this situation a conspiracy meant to sell an ill horse for an astronomic amount of money to the Ramel family,” said Wawrzyniak. “It appeared later in the court proceedings, after the disclosure of the veterinary records (..) that the horse had a long list of injuries and illnesses including two colic cases.” 

Taking payments by Schultzke to Koppelmann and Kretschmer into consideration, then Insterburg’s sales price of 1.6 million euro was made up 920,000 euro commission fees, far above the market standard of 10% to 20%. The court considered 560,000 euro of those fees fraudulent. Furthermore, Insterburg had health issues which had not been disclosed by the seller and were not obvious from the pre-purchase exam.

Wawrzyniak added, “the Court ruled that the trainer, Baumeister and Schultzke are all jointly liable towards Henriette Ramel for the damages she suffered including the purchase price and other costs, all together almost 2 million euro. The conclusion is: you cannot serve two masters. If you act for the buyer and you receive a commission from the seller, the buyer has to agree to that. If not, a transaction can be considered fraudulent.”

Due to his career ending injury, Insterburg moved to the Zweibrucken state stud in 2013 where he has been standing at stud and being well taken care of.

Photos © Astrid Appels

The suspension of Sanne Thijssen has been lifted, effective immediately

The suspension of half a year, which show jumper Sanne Thijssen received from the FEI last week, has been lifted with immediate effect. However, the involvement of equine lawyer, Luc Schelstraete, was necessary.

The suspension was lifted after that Matthew O’Donell, the veterinarian who euthanized Sanne´s horse, Sara Galotière, in Liverpool, now declared that he used ketamine to anesthetize the mare before euthanizing her.

Turmoil and misunderstanding

“We are shocked that this has not been clarified earlier”, says Mr. Schelstraete. “This has of course caused a lot of turmoil and misunderstanding, but also damage.”

Veterinarian admits to FEI

It is very common that ketamine is given by euthanasia to calm and anesthetize the horse before a lethal substance is injected. Initially, the veterinarian in question stated that he had not given ketamine, but he has now admitted in a statement to the FEI that he did indeed use the substance.

Automatic suspension

The FEI automatically suspends the rider allegedly involved in doping and use of banned substances.

Source: Horses.nl

Hungarian showjumper accused of doping team members’ horses prior to the European Championships in Gothenburg.

A rider from the Hungarian national team in jumping has been suspended by his national federation after being accused of doping two of his national team members’ horses.

Entered stall with apple and syringe

At a show in Slovakia, preceding the European Championships, two Hungarian riders noticed unusual signs and behavior from their horses and requested to have them tested. Both tests came back positive for the drug Acepromazine, a sedative commonly available and known as ACP or ACE.

According to two witnesses the Hungarian team member Laszlo Toth was seen going towards one of the horseboxes with an apple and a syringe.

The riders did not compete in the Sunday grand prix, bearing the consequences of not earning any points.

The motive?

The FEI has stated that based on the evidence, it is considered highly likely that Laszlo Toth, who was meant to be the reserve rider for the Hungarian team during the championships, has performed sabotage and injected the horses with the sedative drug. The motive was to be put on the team, which he would have been if one of the riders dropped out, or got suspended. The FEI has described the case as “truly exceptional”.

The Hungarian Federation has suspended Toth and has also asked FEI to review if he has committed another breach of the horse’s health and sabotage against the sport.

The Hungarian Federation put forward that they suspect that a crime has been committed by Laszlo Toth who allegedly violated the rules of the FEI General   Regulations (GR). Article   142   of   the GR sets forth:  “No person may abuse a Horse during an Event or at any other time. “Abuse” means an action or omission, which causes or is likely to cause pain or unnecessary discomfort to a Horse ( … )”

The riders of the horses have been freed from accusation and the FEI has reserved the right to open a case against Toth as an additional person responsible due to sabotage, and/or abuse of the horses.

This is indeed a very exceptional and unusual case and it shall be interesting to see if the FEI will proceed with opening a case against the Hungarian team member, Laszlo Toth.

Schelstraete Equine Lawyers have many years of experience with doping cases in the equestrian sport and invite you to take contact with us would you have any questions or issues you would like help with.

Special (part 2): Meet the EUAEL Alliance in an Interview with the Partners

 

European US Asian Equine Lawyers is an Alliance Group founded by Schelstraete Holding B.V. with its head of ce in Oisterwijk, the Netherlands. The Alliance Group has independent partners in Europe, Asia and the United States and is still growing. The Alliance Group can help clients world-wide with contracting, purchase assistance, Sports law, FEI Doping cases and Litigation. It is our pleasure to introduce you to the next three members of the Alliance Group. In the next issue of Horse International the last members will be introduced to you.

SASCHA MÜNCH AND DR. BURKART FISCHER LL.M - BERNER . FISCHER & PARTNER mbB

VERDEN - GERMANY

 

EUAEL-Sascha_4KANT

How many lawyers does your firm comprise?
We are a law firm composed of ten lawyers, two notaries and three tax advisors.

Which fields of law does your firm specialise in?
As an office counselling mid-sized companies, municipalities and consumers we provide experts in various fields of civil and especially commercial law. Of course, a particular specialty of our office is providing legal advice and representation with regard to equine cases.

Who are your ‘most common clients’ in the equine law practice?
The sellers, buyers, vets, trainers and breeding associations.

Which other fields of law do you often see applied together with equine law?
Considered dogmatically , the equine law is a mixture of various fields of law. In the most equine cases the legal frameworks of classic legal sectors are applicable. Therefore, we work on a lot of cases that are localized in purchase or liability law. Also issues of medical law are very common with regard to the responsibility of veterinarians. Particularly interesting are situations in which a fraud was committed by one of the parties. Such complex cases can have a close connection to criminal law.

How come you chose to specialise in equine law?
We are both riders and active in equine associations. Moreover, our law firm has a long-lasting cooperation with the Hanoverian breeding association and state studs in Germany. We counsel these clients in all matters of equine law. For example, we design individual sales contracts and the conditions of sale for the auctions of our clients. In this respect, we are happy being able to connect our personal passion with professional commitment.

What has been one of your most challenging cases?
In general, those cases in which the parties of a contract agree because of a fraudulent behavior on one side are very challenging. The identification and handling of a collusive bargaining between sellers and agents or trainers of high-quality and high-value horses need a lot of experience and judicial knowledge.

How do you see equine law has developed through the last years?
In the last decade the rights of consumer protection were strengthened under the in uence of the European law and the relative jurisdiction. We expect that this development will continue in the future as the European decisions will have a long-term and extensive impact on the respective national legislation and jurisdiction. Therefore, it seems likely that the number of legal disputes with regard to the purchase of horses will increase as far as consumers are involved as buyers.

How long has your firm been a part of the EUAEL alliance?
We work together with Schelstraete Advocaten in the Netherlands for a long time. Our cooperation even started before the formal establishment of EUAEL.

Why is it so important to have a worldwide alliance of Equine Lawyers?
The high-class equine sport and the corresponding contractual relations know no borders. As a result legal issues arise that cannot be solved without the knowledge of the legal situation in the different countries. It is crucial to know a reliable and highly qualified legal advisor in the countries concerned.

How does your client benefit from the firm being a part of the EUAEL alliance?
It is obviously a major advantage when a national client is provided with a competent advisor in the respective country without delay in a cross-border dispute. However, the alliance is also very helpful for our clients in a domestic lawsuit when the opposing party owns assets abroad as our network allows us to prosecute domestic decisions in the country of the opposing party instantly.

KATRIEN BEELEN, BEELEN ADVOCATEN

BRUSSELS - BELGIUM

EUAEL-Katrien_184kant

How many lawyers does your firm comprise?
17 lawyers.

Which fields of law does your firm specialise in?
We are specialised in several fields.

Who are your ‘most common clients’ in the equine law practice?
The riders, buyers, sellers, owners and horse dealers.

Which other fields of law do you often see applied together with equine law?
Penalty law.

How come you chose to specialise in equine law?
Due to my background as a competition rider.

What are the ties of the firm to the equine world?
For several years we organised an international jumping show, we stood at the base of the federalisation of the sport in Belgium.

Why do you find it important to have lawyers specialising in equine law?
To help people in a specialised way.

What are the most common issues arising in the eld of equine law?
That would be sales.

What has been one of your most challenging cases?
The battle around the horse Cornetto K.

Longest/shortest case?
Shotest 2 months and longest 8 years.

How do you see equine law has developed through the last years?
That there are more fights about money.

How do you see the field developing in the future?
Hopefully more written contracts.

Which issues within equine law do you see appear (more often) in the coming years?
In purchase, sale and the responsibilities of vets.

How long has your firm been a part of the EUAEL alliance?
Since the beginning.

Why is it so important to have a worldwide alliance of Equine Lawyers?
To know specialized lawyers in other countries for international cases.

How does your client (or riders in general) benefit from the firm being a part of the EUAEL alliance?
Through cross border service.

CECILIA THOLSE ROGMARK , GULLIKSSON AB

STOCKHOLM - SWEDEN

EUAEL-Cecilia_18

How many lawyers does your firm comprise?
Number of partners: 26 of which 5 lawyers.

Which fields of law does your firm specialise in?
Commercial law and intellectual property law.

Who are your ‘most common clients’ in the equine law practice?
The buyers.

Which other fields of law do you often see applied together with equine law?
Equine Law also covers civil law governing legal issues regarding transactions, indemnity and sponsoring and also other areas of general business law such as labour law, contract law, company law, mergers and acquisitions, property law, and construction law.

How come you chose to specialise in equinelaw?
Many people at Gulliksson breed, ride and sell/buy horses so it became natural to start a division around horses. We already had the knowledge and the contacts so we only needed the packaging. Our experience of processing also extends outside Sweden’s borders and our understanding and experience of equine law is extensive. Out most common clients includes buyers, sellers and riders.

What are the ties of the firm to the equine world?
We are several that practise riding (competition at lower level) and own horses. Some of us are also breeders. We also have some people very much active in the Swedish Equine Federation such as judges in dressage and showjumping but also two members in the Disciplinary Committee.

Why do you find it important to have lawyers specialising in equine law?
Gulliksson has specialist lawyers who frequently represent companies and businesses in this eld with varying directions. In addition to general law and regulations, specific regulations, statutes and policies for equine law will apply. Often in cross-border transactions international rules and regulations on jurisdiction and choice of law apply. We assist our clients in drawing up and reviewing commercial agreements and we also assist in a strategic advisory role for various types of business affected by Equine Law. We have indepth knowledge about the Sale of Goods act and Consumer law but also horses in general.

What are the most common issues arising in the field of equine law?
Complaints, re-claims and agreements (sale)

What has been one of your most challenging cases?
Reclaims where veterinarians disagree re the upcome (in time) of the injury.

How do you see equine law has developed through the last years?
Much more complex and higher price tags on the horses. Also the claims has increased in regards to not just re-claim the horse but also all the costs that are connected so called positive contract interest. Our clients range from professional riders, breeders, agents, veterinarians, equine authorities and investors that each and together form the backbone and drive development in today’s modern and successful equestrian sports and business.

How do you see the eld developing in the future?
The equine industry in Sweden today is a modern and expansive field that generates business opportunities both nationally and internationally. Equine law covers all kinds of legal matters that arise within this field. With reputable shows and competitions, top breeding, prestigious training, cross-border transactions, operation of businesses, and management of farm and land, many areas of business law are affected by the Equine Law.

Which issues within equine law do you see appear (more often) in the coming years?
Taxlaw, labourlaw, sports law (doping and similar) and cases are the competition itself.

How long has your firm been a part of the EUAEL alliance?
1,5 years.

Why is it so important to have a worldwide alliance of Equine Lawyers?
To exchange experiences and also to together have a common platform for certain questions.

How does your client bene t from the firm being a part of the EUAEL alliance?
Gulliksson represents individual athletes, entrepreneurs, clubs and associations at various authorities, courts and committees. We also assist in negotiations and sponsoring contracts due to our knowledge in Sports and Media law. With our partnership with EUAEL we all benefit thanks to our possibility to exchange experiences and also to together have an international and common platform for certain questions. Equine law is often complex and require specialist skills.

Special: Meet the EUAEL Alliance in an Interview with the Partners

European US Asian Equine Lawyers is an Alliance Group founded by Schelstraete Holding B.V. with its head office in Oisterwijk, the Netherlands. The Alliance Group has independent partners in Europe, Asia and the United States and is still growing. The Alliance Group can help clients world-wide with contracting, purchase assistance, Sports law, FEI Doping cases and Litigation. Its our pleasure to introduce you to the first three members of the Alliance Group. In the next issue of Horse International the other members will be introduced to you.

POLLY HEY-PANOS, HEY & HEY

SAN FRANCISCO-USA

Polly Hey Panos

Which other fields of law do you often see applied together with equine law?
Civil litigation is the most prevalent in our practice. Often a person does not have a quali ed equine attorney involved in their initial deal and when they come to us the only option left is litigation. Other elds of law that intersect with equine law are employment, immigration, and real estate law.

How come you chose to specialize in equine law?
It was a way for me (Polly) to combine my two passions, horses and the law. There was a huge need for an equine law rm in our area. The horse industry is a multimillion- dollar business in California alone and was an industry that was not being appropriately serviced. I grew up as a trainer’s daughter and saw many horse transactions go south. I have always maintained that it is much easier to prevent a problem than it is to x one. I counsel my clients on a daily basis on the importance of written contracts and transparency.

What are the ties of the rm to the equine world?
Polly grew up in the industry as a trainer’s daughter and saw first hand the ups and downs of the industry. Randy grew up on a ranch and has been involved in horses his entire life and more recently has been much more involved in show jumping.

Why do you find it important to have lawyers specializing in equine law?
First and foremost the horse industry is unique. It does not operate like any other industry around. There seems to be different rules and codes of conduct. An attorney who understands the horse industry is going to be able to better advise a client. They will be more efficient with their time and the drafting of contracts. The culture of the industry is also quite different. To be effective, an equine lawyer must to convey this unique culture to outsiders such as judges, mediators, and arbitrators.

What are the common issues arising in the eld of equine law?
We see a lot of breach of contract cases, defective product, lack of transparency, failure to disclose past health or training issues, and liability issues. The single most common issue we see is people entering into a deal based on a handshake and not memorializing their agreement with a written contract.

What has been one of your most challenging cases?
Due to con dentiality issues we cannot describe most of our very colorful cases. However, we’ve had multiple cases in which clients have purchased horses in foreign countries, over the Internet, site unseen and had something go wrong.

Longest/shortest case?
Often we can take care of a problem with one simple phone call because we know the players in the industry. However some civil litigation cases can last upwards of two years.
How do you see equine law has developed through the last years?
Here in the United States, we have seen an increase in laws requiring transparency in horse related transactions.

How do you see the eld developing in the future?
The interaction between the equine industry, the Internet and individual buyers is something that is always changing and evolving.

Which issues within equine law do you see appear (more often) in the coming years?
Disputes over defects in horses I think this will never go away. People are always overstating a horse’s ability or expected performance.

How long have you been part of the Alliance?
We just joined the Alliance.

Why is it important to have a worldwide alliance of Equine Lawyers?
As the sport continues to grow, more and more people are going outside of their home area to purchase, show, and train their horses as a result there are many more chances for something to go wrong in someplace other than home. Having a worldwide alliance allows the attorneys to be able to share ideas and how those might be implemented in different jurisdictions. When Randy was starting his legal career, it was very rare to see a horse bred in Europe competing in California, now that is almost the norm.

How does your client benefit from the firm being part of the alliance?
Having a network of attorneys in different areas benefits my clients because they are transacting business worldwide and thus now have resources to support their business in many countries. The most important thing my firm does is protect clients from litigation and from horse deals going south by having proper documents drawn up.

JEAN-PHILIPPE QUERNER, D’ORNANO QUERNER DHUIN

PARIS-FRANCE

Jean-Philippe Querner

How many lawyers does your firm comprise?
12 lawyers.

Which fields of law does your firm specialize in?
Equine and business law.

Who are your ‘most common clients’ in the equine law practice?
The vets.

Which other fields of law do you often see applied together with equine law?
Corporate law and civil law.

How come you chose to specialize in equine law?
Being a rider and a breeder, I have mixed my passion and my job very naturally.

What are the ties of the firm to the equine world?
Several of the lawyers of our firm are riders and/or own horses.

Why do you find it important to have lawyers specializing in equine law?
The experience and the multiplication of cases make it possible to develop a true skill.

What are the most common issues arising in the eld of equine law?
Hidden defects in the sale of a horse and the questioning of veterinary liability and doping cases.

What has been one of your most challenging cases?
The liability of a veterinarian who operated the wrong horse jamble!

Longest/shortest case?
4 years / a few days (negotiation).

How do you see equine law has developed through the last years?
The financial stake of the business has increased a lot.

How do you see the eld developing in the future?
The establishment of networks of equine lawyers turned towards international will be relevant.

Which issues within equine law do you see appear (more often) in the coming years?
Litigation relating to the cross- border trade.

How long has your firm been a part of the EUAEL alliance?
1 year and 6 years of cooperation with Mr. Luc Schelstraete’ firm.

Why is it so important to have a worldwide alliance of Equine Lawyers?
Because of the increase of litigation relating to the cross-border trade.

How does your client bene t from the rm being a part of the EUAEL alliance?
They bene t from a turnkey service regardless of the cross-border aspects of a file.

JEREMY KLEINFELD, DKLM

LONDON-ENGLAND

EUAEL-Jeremy_18

How many lawyers does your firm comprise?
21 solicitors plus trainees and paralegals.

Which fields of law does your firm specialize in?
Commercial law.

Who are your ‘most common clients’ in the equine law practice?
That would be the buyers.

Which other fields of law do you often see applied together with equine law?
The commercial aspects of the equine industry.

How come you chose to specialize in equine law?
Acting for commercial clients whose business and private interests included ‘equine’ issues led to the creation of a niche interest.

What are the ties of the firm to the equine world?
Membership of EUAEL and acting as above and for clients who own polo clubs and stables.

Why do you find it important to have lawyers specializing in equine law?
As a niche market it is important to know the specifics of the industry so that appropriate and focussed advice can be given.

What are the most common issues arising in the field of equine law?
All commercial issues arising from ownership of horses and associated business interests including the ownership of equine businesses.

What has been one of your most challenging cases?
The majority of work arises from non-contentious commercial work and this involves multi-jurisdictional issues on ownership and tax issues.

How do you see equine law has developed through the last years?
The growing need for greater specialisation of equine issues and the greater awareness by clients of issues arising in transactional work, including the need for focused due diligence.

How do you see the field developing in the future?
Growing need for organisations such as EUAEL as more work has cross jurisdictional aspects and the need to have “a team” who can represent client interests.

Which issues within equine law do you see appear (more often) in the coming years?
Cross jurisdictional particularly as the UK member considering the possible effects of Brexit on the equine industry such as the ability to move horses in and out of
the UK.

How long has your firm been a part of the EUAEL alliance?
Since incorporation in 2016.

Why is it so important to have a worldwide alliance of Equine Lawyers?
To be able to offer clients a one stop shop with the knowledge that their interests will be best served by the use of fellow “equine law” specialists.

How does your client benefit from the firm being a part of the EUAEL alliance?
To be able to offer clients a one stop shop with the knowledge that their interests will be best served by the use of fellow “equine law” specialists. Often horses will be moved across borders with each country have their own domestic laws and the ability to call on local knowledge.

Proposed changes to the FEI Rules…On doping and controlled medication

In this issue of Horse International’s Legal and Veterinary Journal we would like to draw our readers’ attention to the proposed changes in the Equine Prohibited Substances List and the sanctions imposed for violating these rules. The signi cance of these rules we will illustrate with a recent case that has been settled between the FEI and a participant of the Winter Equestrian Festival in Florida, USA.

EQUINE ANTI-DOPING RULES

The Equine Anti-Doping and Controlled Medication Regulations (EADCMRs) are based on the World Anti-Doping Code and are divided into two sections; the Equine Anti-Doping Rules and the Equine Controlled Medication Rules. The Anti-Doping Rules are applicable to any rule violation involving Banned Substances and the Equine Controlled Medication Rules are applicable to any rule violation involving Controlled Medication. Banned Substances and Controlled Medication are collectively known as ‘Prohibited Substances’ The Fédération Equestre Internationale (FEI) publishes the Equine Prohibited Substances List (EPSL) which outlines banned substances and controlled medication within the equine sport. ‘Banned Substances’ are substances that are deemed by the FEI to have no legitimate use in a competition horse and/or have a high potential for abuse. These are not permitted to be used at any time. This differs when it comes to controlled medication. ‘Controlled Medication’ are substances that are deemed by the FEI to have therapeutic value and/or be commonly used in equine medicine. Controlled Medication have the potential to affect performance and/or be a welfare risk to the horse. The Equine Controlled Medication (ECM) Rules prohibit the presence of a controlled medication substance or its metabolites or markers in a horse’s sample and therefore no controlled medication substance are allowed to be given to any horse during or close to an event unless the appropriate FEI guidelines for medication authorization have been followed. Furthermore, attempted use of a controlled medication substance or a controlled medication method’ is also prohibited and could also lead to severe consequences. The Equine Prohibited Substances List is reviewed on an annual basis by the FEI List Group and all members of the equestrian community are able to submit a suggested change to the List.

FEI ́S PROPOSED CHANGES TO THE EQUINE PROHIBITED SUBSTANCES LIST

FEI ́s changes to the 2017 FEI equine prohibited substances list for 2018 have been published and have added substances such as: Clodronic Acid, Ethanol, Quietiapine, Potassium Bromide and Piper Methysticum (Kava) to the list. It has also reclassi ed certain substances from Banned Substance to Banned Substance and Speci ed Substance; from Banned Substance to Controlled Medication and Speci ed Substance; and from Controlled Medication to Controlled Medication and Speci ed Substance.Consequences of Violating the Anti-Doping Rules There are four levels of consequences if the EADCM Regulations are violated. 1. Disquali cation: The horse and rider combination will be automatically disquali ed from the competition and any medals, prizes, money from this competition must be returned to the Organizing Committee. 2. Suspension: For Banned Substances, the suspension period (also referred to as ineligibility period) has an entry point of two years. This is consistent with the World Anti- Doping Agency’s Code for human athletes. This two year suspension can be reduced if the Person Responsible (PR) can show that he was not at fault or did not demonstrate signi cant fault or negligence. For Controlled Medication Substances, the ineligibility period shall be adequate to the seriousness of the offence, taking into account the underlying objectives and rationale of the ECM Rules and the FEI Medication Code, as well as principles of fair play. The period of suspension imposed on the Person Responsible is six (6) months, subject to any elimination or reduction as provided in Article 10.4, 10.6 ECM Rules or increase as provided in Article 10.5 ECM Rules. 3. Fine: A ne up to CHF 15,000 may be imposed, where fairness may in uence the amount. 4. Costs: The FEI Tribunal may also impose appropriate legal costs on the Person Responsible.

INTENTION AND MULTIPLE VIOLATIONS

Intent, fault, awareness or negligence is not necessary to establish an ECM Rule violation under Article 2.1. This article provides for a strict liability for the person responsible (“PR”) and thus a violation is established simply by proof that a Controlled Medication Substance was present in the horse’s system. However, if the If the PR can show that he/she bears no signi cant fault and no signi cant negligence for the rule violation, the normal six month suspension could be reduced to three a months suspension. This suspension reduction does however not apply if the PR has had multiple violations. In this case the provisions of the ECM Rules relating to multiple violations as set out in Article 10.8.1 will apply. It follows from this article that for PR ́s second ECM Rule violation within a four year period, the period of the suspension shall be the greater of (a) three months; (b) one-half of the period of Ineligibility
imposed for the rst ECM Rule violation without taking into account any reduction under Article 10.6; or (c) twice the period of suspension otherwise applicable to the second ECM Rule violation, treated as if it were the rst violation, without taking into account any reduction under Article 10.6.
The period for the suspension then established may subsequently be further reduced by the application of Article 10.6.

DETECTION TIME VS. WITHDRAWAL TIME

The FEI provides a list of detection time for certain controlled substances. The FEI has however stated that this list is merely a guide and that detection time is not to be confused with withdrawal time. Detection time is the estimated period of time for which a drug (or its metabolite) remains in a horse’s system and therefore can also be detected by a laboratory. Whereas the withdrawal time for a drug must be decided by the treating veterinarian and is likely to be based on the detection time and an added safety margin. The FEI has stated that this margin should be determined using professional judgment and discretion to allow for individual differences between horses such as size, metabolism, degree of tness, recent illness or disease to be taken into consideration. The detection time list is based of results on a very limited amount of horses and can therefore not be conclusive. The
safety margin in most cases should be at least multiplied with 2. The FEI has also stated that reliance on the list shall not be a defense in any proceedings taken under the FEI Veterinary Regulations and/or the FEI Equine Anti-Doping and Controlled Medication Regulations.
Positive Test Result at the Winter Equestrian Festival, FL Page Johnson ́s horse Luke Skywalker 46 tested positive for the banned substance Pramoxine, a local anesthetic, at the CSI2* in Wellington (USA) at the end of January 2017. In July 2017 the FEI Tribunal imposed, in accordance with the rules described above, a one-year suspension and a ne of 2,000 CHF and contribution of 3,000 CHF towards legal costs. As the athlete had been provisionally suspended from 5 April 2017 for three months, she would not have been eligible to compete until 4 April 2018.

APPEAL LED TO SETTLEMENT

However, the FEI recently announced that the Court of Arbitration for Sport (CAS) has approved a settlement between the FEI and athlete Paige Johnson. As the substance Pramoxine is to be reclassified from a banned substance to controlled medication in the new 2018 Equine Prohibited Substances List, the parties ultimately agreed on a settlement, which was approved by the CAS. According to the settlement, the athlete’s period of ineligibility has been reduced from one year to three months and the athlete is therefore now cleared to compete again. This settlement, adhering more to the controlled medication consequences, was deemed more appropriate in accordance with the rule of fairness and principle of proportionality. Schelstraete Equine Lawyers (SEL) advise athletes to read over and familiarize themselves with the Equine Prohibited Substances List before it enters into force in January 2018. SEL has many years of experience with doping cases in the equestrian sport and therefore invite you to take contact with us would you have any questions or issues you would like to discuss.

This article was written for HORSE INTERNATIONAL by: Nicol Dominiuk and Piotr M. Wawrzyniak.

Nicol Dominiuk practicing paralegal and Piotr M. Wawrzyniak practicing lawyer at Schelstraete Equine Lawyers and European US ASIAN Equine Lawyers in Oisterwijk and Amsterdam, the Netherlands.

KNHS Changes National Squad Criteria in 2018

The KNHS recently stated on their homepage that they have decided in consultation with the national coaches for dressage, eventing and reining to adjust the team/squad criteria for 2018.

The KNHS states that the goal that the new squad criteria reaches accurately reflect today’s top-sport performances.

Due to an ever increasing and evolving (international) level of the sport, the KNHS and its national coaches consider themselves obliged to set or revise the squad criteria in line with this high level. They state that firstly, an A-squad combination can be expected to qualify on the basis of their performance in a short period for an international championship (with medal opportunities. For a B-squad combination, this period is set to be slightly longer. Further is NOC * NSF also making stricter demands on the KNHS squads by for example setting a maximum number of riders per squad.

For these reasons it was decided to adjust the framework criteria as of 1 January 2018. The framework criteria, which are set out in the KNHS Participation Agreement 2018, are as follows as of 1 January 2018:

Seniors:

Olympic Squad:

For admission and re-qualification, the rider-horse combination must achieve a score of 72% in a 9-month period, at a minimum of 3 competitions in the Country Test (Landenproef), of which at least two are at a FEI competition.

B – Squad:

For admission and re-qualification, the rider-horse combination must achieve a minimum score of 70% in a Country Trial (Landenproef) at, at least 3 competitions, in a 9-month period, of which at least two at a FEI competition.

U25 / Young Riders / Juniors / Ponies / Children:

A Squad:

For admission and re-qualification, the combination must achieve a score of 71% in a 9-month period in at least 3 competitions in the Country Test (Landenproef), of which at least one in a FEI competition

B Squad:

For admission and re-qualification, the combination must achieve a minimum score of 69% in a 9-month period for at least 3 competitions in the Country Test (Landenproef), out of which at least one at a FEI competition.

These new rules create extensive changes in the earlier squads, bumping many down to the B-squads or off the squads completely.
For Hans Peter Minderhoud, one of the most famous Dutch dressage riders, this change leads to that he no longer is included in neither the A nor the B-squad.

The dressage squads of U25, young riders, juniors and ponies have also been considerably reduced. As the A-squad score has been increased from 70% to 71% and for the B-squad the requirement has been increased from 68% to 69%, many riders do not fulfill these high criteria.

Micky Schelstraete with Elin’s Noncisdador is the only A-squad combination of the pony riders which remains in the A-squad. Thessa Gilbers (Baumann’s Despino) and Shanna Baars (Camillo du Bois) are now included in the B-squad.

Source: KNHS/ dehoefslag.nl

Schelstraete Equine Lawyers Wins Dispute Clarifying When a Buyer is Considered Professional and When a Consumer

The opposing parties, an international rider and her Canadian equine company, purchased a horse from our client in The Netherlands. The opposing parties, who are now disputing the agreement, claimed that they bought the horse in the capacity of a consumer and that therefore the extensive consumer protection rights should apply to the case as well as that the Subdistrict Court (Kantonrechter) should be competent to hear the case.

Before substantiating the defense, Schelstraete Equine Lawyers (SEL) raised a jurisdictional incident with which the competence of the Subdistrict Court was disputed through arguing that the purchase was not a consumer purchase.

No Consumer Sale

A consumer is defined as any natural person who is acting for purposes which are not related to his trade, business or profession.

SEL put forward two main arguments disputing that it was a consumer sale and thus claimed that the Subdistrict Court is not competent to hear the case.

Firstly, it was reasoned that it was not the international rider who bought the horse but her equine company. This company was the party which was invoiced and which also fulfilled the payment for the horse.

Secondly, SEL added that even if the international rider would have been the buying party, it still would not necessarily mean that there was a consumer purchase since this rider is professionally operating in the equestrian business sphere by being the owner of the equine company which is active in breeding, competing, training and trading horses. Therefore, the purchase of the horse privately would be for the purpose which relates to the buyers trade, business or profession.

The Judgment

The Court agreed with SEL’s line of argumentation and stated that it is no consumer sale. It was verified that the invoice and payment went through the company and further the court stated that even if it would have been established that the horse was bought by the international rider and only sponsored by her company for the benefit of the opposing party, the court could still not conclude that this rider was purchasing in the capacity of a natural person who is acting for purposes which are not related to his trade, business or profession.

On these grounds the court declared itself not competent to further hear the case and referred the case to the Commercial Court in The Hague.

The client was represented by Ms. Britt Loeffen and Mr. Luc Schelstraete of Schelstraete Equine Lawyers

In the footsteps of Marco Polo – Mr Wawrzyniak speaking during the “One Belt, One Road” Conference in Cyprus

Mr Piotr Wawrzyniak* of Schelstraete Business Lawyers participated in the Annual Conference and the Board Meeting of the Global Legal Alliance (“GLA”) in Cyprus with the main subject “One Belt, One Road”. GLA was founded on 19 May 2016 as a global legal service alliance and an international platform for legal professionals, which is headquartered in Hong Kong and Beijing. GLA is a public platform where global legal service providers are able to network, communicate, and cooperate with each other. The term “One Belt, One Road” reflects on the ancient Silk Road, which comes from a historical network of trade routes started during the Han Dynasty (206 BC – 220 AD) between Europe, India, China, and many other countries on the Afro-Eurasian landmass. Marco Polo is the first European to describe his adventures and travels on the Silk Road.

The idea of the ancient Silk Road has been revived by the Chinese President Xi Jinping who raised the initiative of jointly building the Silk Road Economic Belt and the 21st-Century Maritime Silk Road. Essentially, the ‘belt’ includes countries situated on the original Silk Road through Central Asia, West Asia, the Middle East, and Europe. The initiative calls for the integration of the region into a cohesive economic area through building infrastructure, increasing cultural exchanges, and broadening trade.
Mr Wawrzyniak spoke about the trade relation between The Netherlands and Asia, especially China, and was promoting The Netherlands as one of the best places for the Chinese outbound investments along the Silk Road.
If you have any queries about investing in or cooperating with China, please contact us at info@schelstraete.nl.
*Mr Wawrzyniak holds a director’s position with the GLA’s Property Committee

View more on mp.weixin.qq.com

 

5.218 Horses Were Drug Tested In 2016. 82 Horses Tested Positive

In light of the recent FEI General Assembly, the FEI released a report on the FEI’s Equine Anti-Doping Control Medication (EADCM) Programme including figures of drug tests conducted in 2016.

The report shows that the number of sampled horses has been increasing over the last 3 years where the increase between 2015 and 2016 was of 122 horses.

Overall, 5218 horses were tested over a total of 690 FEI shows in 2016.  Out of these 5218 horses, 82 tested positive. This amounts to 1.57% positive doping cases in 2016. An average of 7.5 horses were sampled for each event targeted under the programme. The number of events targeted in 2016 were less than the 712 targeted in 2015. The figures show that the average cost per horse to collect and analyze the samples was 467 Swiss francs, roughly €400. The total costs to collect and analyze the samples was estimated at 2,452,150 Swiss francs, which is roughly €2,1 million.

Doping cases are often decided on the basis of details in the facts where legal advice is highly recommended. Schelstraete Equine Lawyers have many years of experience with doping cases in the equestrian sport and invite you to take contact with us would you have any questions or issues you would like to discuss.

Source: The FEI, Report of FEI EADCM Programme 2016

A personal injury claim before the English Courts was dismissed after livery fell off a horse that a yard owner advised her not to buy

A yard owner who had a substantial claim for personal injury against her after having accepted £30 from a novice rider to help her find a horse has had the case against her dismissed.

The rider/owner commenced an action for personal injury after falling from the mare two months after she was purchased — despite having been advised by the yard owner not to buy her.

The yard owner was asked to accompany the Claimant to view horses and accepted £30 on three occasions for her time.

Both parties went to see the mare who was described by the seller as “safe” and “sane” and “ideal for a beginner”. They viewed her at the seller’s outdoor arena and on the road.

When the Claimant decided to buy the mare and had her vetted, she was found to have a swelling on her stomach area. Both the vet and the yard owner advised the claimant against purchasing her because of the condition, but notwithstanding this advice the Claimant went ahead, having been told by the seller that the £200 horse would otherwise go for meat.

The mare was kept on DIY livery and after lessons no problems with her behaviour were noted.

At the recent 2 day trial the yard owner and her witnesses described how the Claimant had not accepted advice on how to care for and exercise the horse, often not riding her for days at a time.

It transpired that in late 2013 the mare was ridden without however when she next rode her in the school two weeks later when accompanied by a friend, she fell off.

In the court action the Claimant stated that the mare trotted and cantered off with her despite being asked to stop. She claimed the mare ran towards the fence, causing her to fall off and suffer significant injuries.

Although she had taken the £30, the court accepted the evidence of the yard owner that she had told the Claimant that she did not buy and sell horses as a living, she was not an instructor and she was not an expert in selecting horses for their owners. In the circumstances the judge found the yard owner had not “intended to create legal relations”.

In addition the judge found that as the mare had behaved well from the date of purchase until the date of the accident, despite the lack of exercise that the mare was suitable for the claimant at the time of purchase. It was also accepted that the yard owner had followed correct procedures in advising the Claimant to try the mare at the seller’s premises and to have the horse vetted.

It was noted that a new bridle had been purchased for the mare between her last ride and the date of the accident, and that the Claimant had fitted two holes too low in the horse’s mouth. The court found that this may have contributed to the loss of control.

BY Jeremy Kleinfeld – DLKM

The court of Appeal in ‘s-Hertogenbosch rules in favor of Schelstraete Equine Lawyers’ clients in case regarding breeding and purchase of embryos

Contractual agreement

Schelstraete’s clients contracted with the breeder for an embryo where a living foal as a result of the breeding was promised.

The clients decided the breeding lines and informed the breeder. The breeder was to flush the embryo and transfer it to a surrogate mare. The breeder stated that several attempts to flush the embryo were not successful and as a result there was no foal.

Mare pregnant with requested foal

It did however turn out later on that the breeder did manage to breed a foal out of the same mare and sire as the client had contracted for. The breeder did however not want to hand over the foal.

The breeder stated that she had not realized in time that the embryo was successful and once it was discovered, it was too late to take out the embryo and transfer it to a surrogate mare. The foal was therefore carried by and born from the breeder’s mare. The breeder argued that foal was not the client´s because the embryo was not transferred but was carried by her mare and therefore this would not fall under the contract.

In light of reasonableness and fairness

The court stated that the agreement did not cover situations as this one. The court ultimately followed Schelstraete Equine Lawyers’ (SEL) argumentation and ruled that in the light of the agreement and completed by the rules on reasonableness and fairness (Art. 6:248 lid 1 BW), the foal has to be handed over to SEL´s clients. The failure of following the courts decision could be fined by penalty sums of €5.000 per day with a maximum amount of €100.000.

Prohibition

With regards to other remaining embryos which were contracted for, the court ruled that the breeder is forbidden to act in any way which might stand in the way of the clients acquiring their bought embryos. This includes flushing embryos and /or harvest egg cells for herself or a third party, before the clients have received their purchased embryos. In this respect the court confirmed the first instance decision. However, the court ruled that contrary to the first instance decision the prohibition will only be in effect until the clients have received their purchased embryos and not until living foals are born.

The client was represented by mr. Vincent Zitman of Schelstraete Equine Lawyers

Positive Outcome in Appeal in Case Concerning a Horse With a Chronic Tendon Problem

A four year long court case ends in success for Schelstraete Equine Lawyers’ (SEL’s) client.  Contrary to the first instance decision, the Court of Appeal awarded all the client’s claims.

SEL’s client purchased a horse form the opposing party – in this case a Dutch trading stable which sold a dressage horse to our Israeli client – and the horse was subsequently delivered. Shortly after delivery the client noticed that the horse was unsound. When the client brought the horse to the vet the vet established that the horse had a chronic tendon inflammation which caused the lameness.

As the seller is a professional trader and our client is a consumer, rules on consumer protection in consumer sales may be applicable. Article 7:18 BW allows for a legal presumption of non-conformity at time of delivery if the good turns out to be non-conform within the period of 6 months post purchase. The exception to applying this article is when the nature of the good or the nature of the lack of conformity would deem the presumption to be incompatible.

The court of first instance refused to apply the rules of consumer protection to the situation as it deemed that the nature of the good, being a horse, and the nature of the injury, a tendon injury, excluded the application of consumer protection. The court deemed that horses, being subject to sudden injury, should not fall under goods which render the protection for consumers purchasing these goods.

The Court of Appeal in The Hague overruled the first instance decision and agreed with SEL’s argumentation in that animals, including horses, should not automatically be excluded from the application of consumer protection articles. It appear from the Dutch Parliamentary Documents (Kamerstukken) that this subject was also discussed and decided when first drafting the articles on consumer protection in consumer sales and it was made clear that the articles also apply in cases where the good sold is an animal. The nature of the deviation has been discussed as the situation in which it is clear that the non-conformity arose from the conduct of the consumer, for example, a damaged video camera undoubtedly caused by a fall of the camera.

The Court of Appeal ruled that the consumer protection articles are applicable to the case at hand and that subsequently, since the horse proved to be lame due to a tendon injury within the 6 months time frame, the presumption of non-conformity at time of delivery applies. It followed that in this case it was up to the seller to prove that the horse was healthy and sound at time of purchase and was not suffering from a chronic tendon injury.

The opposing party failed to deliver such proof and the claims of our client were awarded. The court affirmed that SEL had rightfully dissolved the clients contract with the opposing party and as consequence ordered the seller to transfer back the purchase price to the buyer and to pick up the horse.  The court also awarded the claimed damages which included vet check costs, veterinary expenses, stabling and care costs, insurance, quarantine, transportation-, court expert-, translation- and interpreter costs. – Due to the extensive time that the litigation took and the fact that the horse was in the care of our client, the damages amounted to nearly half of the horses purchase price.

The client was represented by mr. Luc Schelstraete of Schelstraete Equine Lawyers

New EUAEL Alliance Partner : Hey & Hey Attorneys At Law (LLC)

Hey & Hey Attorneys at Law was founded by Randy Hey and Polly Hey Panos, a father and daughter team who have committed their firm to offering a full range of equine legal services. While Randy has been practicing since 1971, the two formed the practice in the heart of horse country back in 2006. Together, they aim to provide counsel and assistance to anyone involved in the ownership, lease, or sale of a horse, involving all related legal matters.

National Federations agree with Schelstraete Equine Lawyers’ stance on the proposed FEI Blood Rule

In July this year the FEI proposed a change to the extensively discussed and disputed Blood Rule.

The proposed rules stated the following: blood on the horses flank caused by the athlete’s leg may lead to elimination (instead of disqualification) and (NB) minor cases of blood on the flank(s), as described in the Jumping Stewards Manual, will not incur elimination

Secondly, the proposal slightly amended the article on mandatory disqualification, which in the proposal stated that cases of marks and/or blood on the horse’s flank as a result of an excessive use of the spur(s) will be penalized with disqualification. The difference between elimination and disqualification appears to be the “excessive use of spur”, however, what defines “excessive use of spur” was not further clarified.

Schelstraete Equine Lawyers (SEL) were interviewed by Horse International regarding this proposal where we specified several legal concerns which arose and could become an issue would the rules come into force.

These concerns related mainly to the lack of legal certainty and the subjectivity the rules would allow for. You can find the full interview here.

National Federations agree with SEL´s urgings

Schelstraete Equine Lawyers is pleased to see that several National Federations have submitted analogous comments to the FEI and rejected a subjective component in the jumping sport.

The Spanish National Federation stated: “This rule, by definition, will be a judgement call. This situation will lead to many different possible problems because there is no clear guideline. “ as a comment to the elimination rule.

The Dutch National Federation commented the following in regard to the disqualification rule: “Art. 241.3.30: What are the criteria for a “minor” case of blood on the flank(s)? Art. 242.3: What are the criteria for “excessive” use of spurs/whip?
The criteria for these should be clear, transparent and objective. “

Final Proposal to the Blood Rule

After receiving comments from different stakeholders the final proposal to the Blood Rule now looks as following:

Article 241.3.30 concerning elimination proposes: The Ground Jury must enforce Elimination under the following circumstances: (…) blood on the Horse’s flank(s).

The proposed disqualification article, article 242.3.1, states: Disqualification is mandatory in the following cases: (…) marks indicating excessive use of spurs or of the whip anywhere on the Horse; additional sanctions may also apply (see JRs Art. 243);

Does the Final Proposal Provide a Satisfactory Change to the Blood Rule?

The FEI General Assembly is taking place this weekend (18th – 21st of November) in Montevideo, Uruguay where this final proposal will be discussed. Schelstraete Equine Lawyers are positive to the National Federations due care in revising the earlier proposed rules and is confident this will continue throughout the General Assembly. The question which remains is however if this latest proposal to the blood rule provides much change to the current blood rule which has been significantly disputed throughout the year.

Schelstraete Equine Lawyers look forward to the outcome of the General Assembly and hope for clear and objective rules, which provide legal certainty. You can read more about this topic in our previous article for Horse international about ‘blood rules’.

Sources:

Comments Received from Stakeholders on First Draft of Proposed Modifications to the JRs : inside.fei.org

Final Proposal of the FEI Jumping Rules 2018: inside.fei.org

Seizure of €25.000 by Schelstraete Equine Lawyers is Approved by Court in Summary Proceedings

Appeal Against Enforceable Penalty Sums

In the case of a claim to lift a seizure under a warrant of execution and to ban enforcing of enforceable penalty sums, the judge has a limited task. The execution court can only intervene if: (a) the debtor has shown that he has already fulfilled the ruling, or (b) if the executor is guilty of abuse of authority by the execution, for example because the sentence to be executed is clearly based on a legal or factual error or because execution, on the basis of facts revealed after the judgment, will clearly lead to a state of despair for the debtor where immediate execution could not be accepted. (Hoge Raad 22 april 1983, LJN AF4575, 1984, 145)

Successful Argumentation by Schelstraete Equine Lawyers Leaves a Seizure in Place

In the case at hand, the Court ruled in July 2016 that the opposing party to Schelstraete Equine Lawyers´ (SEL) client, was to withhold from acting in a way contrary to fulfilling their obligation towards SEL´s client and that any such act would be penalized with an enforceable sum of €25.000. SEL argued that the opposing party failed to follow the courts order when acting contrary to the contract and delaying the obligation they had under this contract. SEL and its client then moved to enforce the penalty sum by putting a seizure under a warrant of execution. The opposing party appealed this seizure in summary proceedings by claiming a lift of the seizure and a ban on enforcing the earlier established enforceable sums.

SEL successfully argued and proved that there indeed was a breach allowing such seizure. The Court followed SEL´s line of argumentation and approved the asset seizure for the amount of €25.000.

Two other penalty sums were not awarded and will be further discussed in appeal”.

The client was represented by mr. Vincent Zitman of Schelstraete Equine Lawyers

Sale of Goods Act applies to horse sales even when a trader sells and an individual buys

Horses sales between two individuals are governed by the Sale of Goods Act, while horse sales from a trader to an individual are governed by the Consumer Sales Act. But who is responsible for knowing which law applies to the sale of a horse? Is it reasonable to apply the Consumer Sales Act to a product subject to change? A recent judgment by the Court of Appeal for Western Sweden takes up the question of where to draw the line between individual and trader in the equine industry.

The case considered whether the person who sold the horse should be deemed a trader, and accordingly, which law should apply. The Court of Appeal for Western Sweden’s judgment found that the seller should be deemed to have sold the horse as an individual despite being a registered trader conducting business operations in the form of pony riding services. Therefore, the Sale of Goods Act (1990:931) was the applicable law in this case.

“The real question of interest here is whether it is reasonable in the first place to apply a law such as the Consumer Sales Act to a product subject to such great change, such as an animal. We now see a trend among horse owners who are also traders where they are becoming increasingly cautious about selling horses to consumers,” Gulliksson Partner Cecilia Tholse-Rogmark comments.

The Consumer Sales Act is clear: A trader is defined as a natural or legal person acting for purposes related to that person’s trade, business, craft or profession. The Consumer Sales Act should not apply when a trader sells a product under such conditions that the person can be considered as acting in the capacity of an individual. Professional riders or high-level riders who believe they are selling a horse privately will often be considered traders instead under the Consumer Sales Act because of sponsorships and competitions associated with economic benefits that have a direct connection with riding. This can lead to risks when selling to individuals who can assert the legal guarantee and proof rules for latent defects under the act.

Cecilia Tholse-Rogmark welcomes the ongoing reviews and proposed changes relating to the trading of live animals and highlights the risks to sellers posed by current practices.

“When a consumer can assert rights under the Consumer Sales Act when buying a horse, the worst-case scenario is not only that the horse can be returned, but also that the buyer can claim damages for costs resulting from the purchase such as stall rent, veterinarian bills and horse feed. The issue is complex, and trading in animals is particularly specialized. In a certain sense, a horse is a product subject to great change and a ‘used product’ regardless of age. Personally, I think it’s a sad state of affairs when horse breeders are unwilling to take the risk of selling to individuals not acting as traders.”

Cecilia Tholse-Rogmark plays a leading role on Gulliksson’s team for equine law, an area in which legal issues relating to sales and damages often are hot topics.

“A contract that’s good for both the buyer and seller stipulates the governing law. Most horse injuries occur within the first six months following the sale, and who is responsible for the costs and burden of proof largely depends on which law is applicable. However, it should be noted that the Consumer Sales Act is mandatory and cannot be contracted away, but the judgment referred to above demonstrates that you can sell a horse as an individual despite conducting horse-related business. This means that the reverse could also be true. In other words, you could also buy a horse as an individual, and the seller could fall under the scope of the Consumer Sales Act despite the buyer seemingly acting as a trader. The consequences of the act’s mandatory rules are currently a great burden for traders.”

Read the full judgement (in Swedish).

Equine Law covers also civil law governing legal issues regarding transactions and indemnity, and also other areas of general business law such as labour law, contract law, company law, mergers and acquisitions, property law, and construction law. We assist our clients in drawing up and reviewing commercial agreements and we also assist in a strategic advisory role for various types of business affected by Equine Law.
Gulliksson handles all kinds of business disputes – in general courts, administrative courts, authorities and arbitration tribunals. We represent clients in negotiations, court procedures, arbitration procedures, mediation, international dispute resolution and alternative dispute settlement. Our experience of processing also extends outside Sweden’s borders and our understanding and experience of equine law is extensive. Gulliksson has many employees who are active in sports in different ways, and within equine especially. Some as participants and others as board members or as representatives in reputable associations.

Contact:
Cecilia Tholse Rogmark, Partner
+ 46 (0)735 195 950
cecilia.tholse@gulliksson.se

FEI five-star judge, Leif Törnblad, temporarily suspended

Messrs. Schelstraete and Wawrzyniak of Schelstraete Equine Lawyers, the member of the Alliance of European US Asian Equine Lawyers, successfully filed on behalf Mr Sjef Janssen a complaint before the Fédération Équestre Internationale (the FEI) against Mr Leif Törnblad, a five-star FEI judge, following his interview in the Horse Magazine published in September 2017. In this interview Mr  Törnblad adopted negative statement about Mr Sjef Janssen and the Dutch equestrian sport.

Following the argumentation of Schelstraete Equine Lawyers the FEI found Mr Törnblad guilty of a breach of Article 2 of the Codex for FEI Dressage Judges that states:

“A Judge must avoid any actual or perceived conflict of interest. A judge must have a neutral, independent and fair position towards riders, owners, trainers, organizers and other officials and integrate well into a team”.

Leif Törnblad. Foto: Arnd Bronkhorst / www.arnd.nl

Agent Could be Held Liable as Seller Although He´s Only Acting as Intermediary

Equine sales often occur with involvement of an agent (intermediary) or scout who presents the horse on behalf of the owner or who finds horses for a particular rider. In the first mentioned scenario the agent acts similar to a car dealer or garage who acts as intermediaries in car sales, selling cars belonging to other private persons. Intermediaries may put the buyer and seller in contact with each other but often the sale is fully taken care of by the agent. If this agent is a professional dealer and the buyer is a consumer, the agent may be perceived as the seller of the horse under certain circumstances.

 

Ruling of the European Court of Justice: Agent Liable in Order to Ensure a High Standard of Consumer Protection

The European Court of Justice includes intermediaries in the notion of “seller” if, under the circumstances, the consumer can easily be misled to believing the intermediary is in fact the owner and professional seller of the consumer good.

It was provided that in order to determine whether the intermediary may be regarded as the seller, the national courts will have to asses on basis of facts and circumstances of the case, of which the following may be of relevance: failure to inform about who is the actual owner of the good, the intermediaries behavior and the degree of contribution and effort employed in the sale. Thus could a party who is solely acting as the agent be perceived as the seller and therefore also be held accountable as such.

This is due to the considered imbalance between consumer and professional and in order to ensure a high level of consumer protection.

Schelstraete Equine Lawyers therefore advise agents to expressly state when an equine sale is between two consumers and when it is between a professional and a consumer and more importantly, who the seller is and in which capacity they act when selling the horse as this will influence protection, rules and remedies applicable to the contract.

Source: Sabrina Wathelet v Garage Biertheres & Fils SPRL, C-149/1

Read more details about this case HERE.

FEI reaching settlement in doping case after proposed change to the classification of Pramoxine

Positive Test Result at the Winter Equestrian Festival, FL

Paige Johnson´s horse Luke Skywalker 46 tested positive for the local anesthetic Pramoxine at the CSI2* in Wellington (USA) at the end of January 2017. In July 2017 the FEI Tribunal imposed a one-year suspension and a fine of 2,000 CHF and contribution of 3,000 CHF towards legal costs. As the athlete had been provisionally suspended from 5 April 2017 for three months, she would not have been eligible to compete until 4 April 2018.

 

Appeal Led To Settlement

However, the FEI recently announced that the Court of Arbitration for Sport (CAS) has approved a settlement between the FEI and athlete Paige Johnson.

As the substance Pramoxine is to be reclassified from a banned substance to controlled medication in the new 2018 Equine Prohibited Substances List, the parties eventually agreed on a settlement, which was approved by the CAS.

According to the settlement, the athlete’s period of ineligibility has been reduced from one year to three months and the athlete is therefore now cleared to compete again.

This was deemed more appropriate in accordance with the rule of fairness and principle of proportionality.

Doping cases are often decided on the basis of details in the facts where legal advice is highly recommended. Schelstraete Equine Lawyers have many years of experience with doping cases in the equestrian sport and invite you to take contact with us would you have any questions or issues you would like to discuss.

 

Source: FEI

Changes in the World Anti-Doping Agency Prohibited Substances List For Human Athletes and the FEI Equine Prohibited Substances List

WADA

The World Anti-Doping Agency (WADA) was founded with the aim of bringing consistency to anti-doping policies and regulations within sport organizations and governments across the world. They oversee compliance with the anti-doping code, complete research and provide education on the dangers and consequences of doping.

The FEI is a signatory of the World Anti-Doping Code and therefore their rules are also applied to the equestrian sport.

Changes to the WADA Prohibited Substances List

They recently published the 2018 List of Prohibited Substances and Methods (List) from which they have removed alcohol and cannabidiol  (a cannabis compound which has medical benefits). However, attention should paid as cannabidiol extracted from cannabis plants may also contain varying concentrations of THC, which remains a prohibited substance. This list will take effect on the 1st of January 2018.

Exceptions

It should also be noted that, for athletes who have a legitimate medical reason for using a prohibited substance or method that is on the list, they may be accommodated if they meet the criteria outlined in the International Standard for Therapeutic Use Exemptions (ISTUE).

FEI´S Proposed Changes to the Equine Prohibited Substances List

FEI´s changes to the 2017 FEI equine prohibited substances list (EPSL) for 2018 have also been published and have added substances such as: Clodronic Acid, Ethanol, Quietiapine, Potassium Bromide and Piper Methysticum (Kava) to the list. It has also reclassified certain substances from Banned Substance to Banned Substance and Specified Substance; from Banned Substance to Controlled Medication and Specified Substance; and from Controlled Medication to Controlled Medication and Specified Substance.

Schelstraete Equine Lawyers (SEL) advise athletes to read over and familiarize themselves with these two lists before they enter into force in January 2018.

SEL has many years of experience with doping cases in the equestrian sport and therefore ask you not to hesitate with contacting us would you have any questions or issues you would like to discuss.

Wrong Horse Put Down By Vet; Diligence Requirements For Vets To Avoid Law Suit

Schelstraete Equine Lawyers (SEL) have for a long time been cooperating with equine veterinarians in order to establish thorough protocols to assure comprehensiveness and to avoid possible legal complications.

As we all know, vets are only human and thus also capable of making mistakes. However, when it comes to the wellbeing of horses and even more so, when regarding life and death of horses, limiting the risk of mistakes is of outmost importance.

After reading about a recent case where the wrong horse was put down by the vet, SEL finds it to be of significance to discuss possible developments and improvements in order for these desolate situations not to arise again.

Wrong Horse Euthanized

Equnews.be and horseandhound.co.uk recently reported a case where a fully healthy horse was euthanized in place of another horse. The vet had been asked to come out to the farm and put down two horses. By accident, the wrong horse was brought to him and was consequently euthanized. This horse belonged to a third party who had her horse stabled at the farm.

The third party was devastated and was told that the wrong horse was brought to the vet and that the vet was not obliged to check the horse’s identity in these situations.

Improvements to Reassure Diligence

Not reassuring oneself as to the identity of the horse before treating it or especially before putting it down, may lead to an opening of a very costly law suit in tort against the vet.

Schelstraete Equine Lawyers therefore recommend veterinarians to introduce a standard protocol for these procedures. It is advised that the horse’s passport and chip number is checked and noted to verify identity and that a description is given of the treatment or procedure which is to be executed. Also, the owners permission should expressly be given, this could be done by having the owner present and signing the document, or having the owner mailing a signed copy or by having a person responsible signing the document in name of the owner after being authorized to do so.

These simple, straightforward steps provide diligence on the part of the vet and will result in fewer mistakes like the devastating one mentioned above.

Schelstraete Equine Lawyers have a long history of advising veterinarians and horse owners in equine legal matters so please do not hesitate to contact us would you have any questions or issues you would like to discuss.

Freestyle copyright violation at the `Pony´s Kür op Muziek´ in Geldrop, the Netherlands

Copyright laws

Copyright infringement laws are in place in order to protect the original works of a creator from being stolen and reproduced, sold or performed. Although copyright laws are in place for many different fields, may it be music, film, writings as well as dressage freestyle pieces, infringements occur frequently.

Copyrights in Dressage

The dressage sport is known for its very competitive freestyle classes and the work put behind to create the perfect performance piece to suit the horse and rider can be very costly. The freestyle music piece is a big part of the performance as a whole and is often tailored to perfectly suit the horse and rider combination at hand.

Copyright Violation in Geldrop, The Netherlands

Mr. Joost Peters is a well-known freestyle producer who has created freestyle music for amongst others Edward Gal and Totilas. These freestyle productions are protected by copyright laws, as originality is of the essence. Mr. Peters was therefore very surprised to find out that his freestyle piece, created for the horse TC Champ of Class DVB, was used by a different horse and rider combination during the Pony´s Kür op Muziek in Geldrop, without the consent of him or the owner of TC Champ of Class DVB. This type of theft of protected materials may bring upon tort claims, as this is an infringement of copyright laws. These violations may also have devastating consequences for the producer as both his image and the product related to him is at stake and can be damaged by this unlawful use. Not to mention that the hard work put in behind these productions is not compensated for in these situations.

Schelstraete Equine Lawyers view such copyright violations as grave and unwelcome as this may have harmful consequences for creative individuals who put a lot of hard work into their original pieces and creations.

Riders and trainers are advised to refrain from copying content form the internet and using it as their own without the permission of the owner or creator. This also holds true for pictures and video sharing.

Schelstraete Advocaten wins summary proceedings with regards to lifting a seizure; The depositary is allowed to train and to compete with the horse in competitions

Schelstraete’s client – owner of a show jumping stable – was training and taking care of a horse on behalf of its owner for 1,5 years. The owner never paid a single penny for this. On request of the client Schelstraete seized and deposited the horse at a renowned stable. The owner now claims in the summary proceedings that the seizure should be lifted and furthermore claims that the horse is his and therefore – if seized – he should decide what happens to the horse during this seizure.

All claims by the owner were rejected. According to the provisional judge the seizure and deposit remain in force and the depositary decides which training and competitions are suitable for the horse.

The client was represented by mr. Amanda Brouwers and mr. Luc Schelstraete

The judgment was published at Rechtspraak.nl

Horse International: RISKS AND LIABILITIES

In this edition of Horse International we would like to discuss with our readership the risks and liabilities that may be triggered by your horses participation at equestrian events. Equestrian competitions, horse shows and other equestrian events are almost always events that attract large numbers of visitors that have come to enjoy the ambiance and the high calibre of horses being shown. Accidents do not occur often during these events, which as such is quite remarkable when taking into account that these events involve live animals with their own unpredictable energy and independent behaviour. But imagine you have to deal with that one unique situation when something does happen; an accident or an incident occurs. Have you ever thought about the rights and obligations arising in connection with such a situation?

 

Possible situations

In this article we would like to focus on various possible situations that may happen or occur during an equestrian event. We shall zoom in on the juridical position of the parties involved while
discussing those hypothetical situations.

Scenario 1: Your horse gets injured

Enthusiastic as you are about the horse you have bred, you decide to take part in a studbook or stallion show. Being presented to the jury, your horse makes an unfortunate move and steps on an iron pin that apparently found it’s way to the showground. The accident results in serious injury to the horse and the question is whether the horse will ever recover to full fitness. In the meantime, you have to pay colossal vet costs as the invoices from your vet keep on coming in.

The envisioned goal of your horse’s participation in the show has not been realized and has gone with the wind. No future proceeds out of a sale of the approved stallion. Nothing. Now, who is responsible for this situation and can we hold anybody liable for the damages you suffer? The first thought might be the organization of the event, as the showground they prepared for the show contained an iron pin and caused a dangerous situation, in particular to your horse that was injured, but also to other horses that participated in the event. In such a case, most likely the organization will try to invoke the so-called exoneration clause (exclusion and/or limitation of liability) that most probably was imposed on you via the general terms and conditions (the small print) of the event on the very moment you decided to register your horse for the event. By means of the exoneration clause, the organization of the event will try to evade all and any liability for any damages the participants may suffer due to their participation in the event.

-In such a case you might have to face the damages yourself. The bottom line is that you cannot recover the damages from the organization of the event for their liability is limited to a very small amount. It is important to note, though, that once confronted with such a clause you should not give up immediately. It may happen that the exoneration clause in the particular may not be invoked. In situations where intentional act and (gross) negligence are involved, it has been generally acknowledged that the exonerations cannot be relied upon. It may sound a bit like a cliché but the question whether or not an exoneration can be invoked depends on the individual facts and circumstances of the specific case. Important is inter alia the manner in which the exoneration clause has been agreed upon and whether you were aware of its existence in the contractual relation. Additionally, many other circumstances may play a role as well. A legal counsel could make an assessment on the enforceability of the exoneration clause in a specific case.

“Accidents do not occur often during events, which is quite remarkable when taking into account that the events involve live animals with their own behaviour.”

Scenario 2: Your horse causes damages

Let us imagine another case. During the same event your horse has not injured itself by stepping on an iron pin in the showground, but kicked one of the spectators and caused damage to a trailer of another participant. By operation of law the owner / possessor of the horse responsible for its behaviour and liable for the consequences hereof. This makes you – as the owner of the horse – liable for (material) damages that your horse may cause by kicking. This could be different, however, if your horse’s kicking was caused by somebody else’s behaviour. In this context you could think of a situation where in your horse gets scared by a rushing tractor that drives by recklessly fast. In such cases it is possible that the liability is shifted from you as the owner of the horse to the driver of the tractor because the latter was seriously incautious and careless. The liability and responsibility of the horse owner is far reaching. Your horse’s behaviour causing damages to third parties and someone else’s property may cost you a lot of money. In many cases you – as the owner – may not escape this
liability. On the other hand you may be able to mitigate this risk to a certain extent securing an insurance that provides for sufficient coverage. Furthermore, it is also advisable to arrange insurance to cover costs and expenses of legal aid in the event no compromise is possible with your counterpart and you are forced to litigate the case.

Conclusion

In this article we merely discussed the general principles of the liability laws to give you a good overview of how complex this matter is. It may again sound like a cliché, but your juridical position is shaped by the individual circumstances of your individual case. It is therefore advisable to timely seek legal advice on your juridical position.

Schelstraete Equine Lawyers won in Court of Appeal: No consumer purchase

In a court ruling from the Court of Appeal in Arnhem-Leeuwarden, the Netherlands, last week, Schelstraete Equine Lawyers (SEL) successfully argued the position of it´s client, not allowing the opposing party to get away with ungrounded accusations and statements.

The European consumer protection laws

In the case at hand the opposing party sought to be covered by the very extensive European consumer protection laws. In order to fall under these protection laws one must prove they acted as a consumer, outside their own profession or business, and that they traded with a professional. The opposing party attempted to trigger these laws in order to return a horse, which got lame after a period of time post purchase.

Court rules: Consumer or professional

Although the opposing party could prove that they had a full time job outside their riding career (not related to horses), the SEL argued, and the court agreed, that this does not exclude the possibility of also being a professional in the equestrian business. The court also agreed that stating that the horse activities are private and not providing any documentation as to expenses and profit in this regard, does not get you off the hook. In this case SEL successfully argued that the opposing party did indeed act in the scope of their profession as a professional equestrian.

Conformity or Non-conformity

This resulted in that the opposing party had to prove that the horse was not conforming with the agreement, already at the time of purchase.

SEL provided substantial proof to support that the horse was indeed conform at time of transfer. To this extent SEL argued amongst others that the horse had been showing prior to sale, it went through a pre-purchase examination and was further showing after being purchased by the opposing party.

The seller was represented by Mr. Luc Schelstraete and Mr. Vincent Zitman of Schelstraete Equine Lawyers.

Need legal advice?

European consumer protection often boils down to the details – details SEL is more than familiar with. Please do not hesitate to contact us, would you have any inquiries in this field.

For more information regarding the case, please make use of the following details: Gerechtshof Arnhem-Leeuwarden, 19-09-2017, 200.172.588. Or click the following link: Rechtspraak.nl

Horse International: Legal and Veterinary Journal – Schelstraete Equine Lawyers Join Veterinarians at the 2017 European ISELP Module

In this issue of Horse International’s Legal and Veterinary Journal we would like to draw our readers attention to the lecture that was given by Schelstraete Equine Lawyers during the recent meeting of The International Society of Equine Locomotor Pathology (ISELP) in the Netherlands.

ISELP and SMDC

At the beginning of September the Sporthorse Medical Diagnostic Centre (SMDC) hosted veterinarians from all over the world who joined to partake in the European module of the International Society of Equine Locomotor Pathology. The event took place at SMDC´s brand new facility in Heesch, the Netherlands, and accommodated more than 135 Veterinarians for a three day long module.

SMDC´s newly established facility answers the need of the sport horse industry for a center of excellence where all orthopedic, diagnostic and treatment modalities can be utilized in combination with experience, specific knowledge and individual attention. It was therefore the ultimate location to hold such a prestigious module as the ISELP module. ISELP was formed in the United States under the direction of Dr. Jean-Marie Denoix and focuses on problems of lameness in the equine athlete with the goal to provide contemporary knowledge and techniques in the continually evolving field of equine locomotor analysis in order to better prepare the equine clinician to understand and manage lameness conditions in the equine athlete.

The organizers of the European ISELP Module invited Mr. Luc Schelstraete and Mr. Piotr Wawrzyniak of Schelstraete Equine Lawyers to speak to, and advice, their participants regarding legal complications in the veterinary field.

Presentation by Mr. Schelstraete and Mr. Wawrzyniak

Recent case law indicates that more and more veterinarians are being subjected to civil lawsuits. This occurs both jointly with, and separately from, the seller. It seems to be more common in certain countries to go after the veterinary than the seller when something goes wrong with the horse post purchase.

Conformity and Non-Conformity in Equine Sales

Mr. Schelstraete and Mr. Wawrzyniak held a lecture titled “Conformity and Non-Conformity in Equine Sales from a Legal and Veterinary Perspective”. Mr. Schelstraete commenced the lecture with introducing the concept of conformity and non-conformity stemming from European Union consumer protection laws. Following recent case law the notion of conformity and non-conformity has been applied more frequently to equine cases and sales disputes. The European Directive harmonizing these notions states that the supplied good (the horse) must be in conformity with the sales agreement. The conformity as such is further judged on the basis of the qualities that the buyer, given the nature of the good and the statements of the seller about it, could have expected on the basis of the agreement. The buyer may expect that the object has the qualities that are necessary to be able to use it in a normal way and of the presence of which he did not need to doubt as well as the qualities that are necessary to be able to use it in the particular way that the buyer intends to make of it as provided for in the agreement. In this regard Mr. Schelstraete pointed out the importance of the vet knowing what the purpose of the horse is and the expectations of the buyers, as this may influence the conformity with the agreement, regardless of the outcome of the pre-purchase examination.

Although the primary remedy of the buyer is for the seller to repair the non-conformity, many such equine legal disputes lead straight to the resolution of the contract where both the seller and the veterinarian may be held liable.

Documentation of the Pre-Purchase Examination

Mr. Schelstraete further advised the ISELP members to record a statement of the seller prior to the pre-purchase examination and provided examples of how this may look. It was emphasized that in order to avoid opening the possibility for a legal suit, it is of importance to document the history of the horse, both regarding health and performance. This will help the veterinarian to locate relevant areas of interest and to investigate them more in depth. Following case law it is seems that overlooking this step in the pre-purchase exam may, depending on the circumstances of the case, open the veterinarian up for a lawsuit on basis of professional negligence.

Conflicting obligations for vets

Moreover Mr. Schelstraete emphasized the risks of performing a pre-purchase exam of a horse, which the veterinarian already knows from earlier. In this case the veterinarian has two conflicting obligations arising: the duty to not reveal the information previously acquired and; and the duty to disclose important facts regarding the horse to the buyer. In this case it is advised that the vet reconsider his/her involvement in the pre purchase check. If the vet decides to go through with the examination then this should be with full transparency by asking the seller for the approval to release the horse’s previous medical documents to the buyer.

If this is not done, the vet risks being accused of misrepresentation or fraud.

Case law indicates

Case law discussed by Mr. Wawrzyniak pointed out relevant aspects which may be very influential in certain cases. Such as the significance of that each veterinary report produced by the vet has a date and is addressed to the person who has requested the examination. Non-addressed letters may end up in the wrong persons hands, creating the illusion that the report is made for them.

Case law has also presented situations where vets have been sued for treating a horse after the horse was already sold. It is therefore recommended to inquire who the owner is, especially if the horse comes back fro treatment shortly after a pre-purchase examination.

It was also advised that pre-purchase examinations be videotaped and that blood be drawn, preferably using the FEI doping kit. This kit has been developed in a way making it inherently difficult to interfere with the test, which provides security for both the buyer and the vet, would there be distrust in the handling of the blood test.

Conclusion

At the end of the lecture Mr. Schelstraete and Mr. Wawrzyniak answered questions asked by participants of the ISELP meeting and gave examples of does and don’ts.

Summarizing, this presentation and the event as such was a great opportunity to exchange information, expertise and to approach the activities of a vet both from the legal and the veterinary sciences´ point of view.

It was an honor to have been invited to this respected ISELP Module and Schelstarte Equine Lawyers look forward to future fruitful cooperation with ISELP and the international veterinary community.

Recognize signs of pain from a ridden horse’s facial expressions

New research by scientists at the Animal Health Trust Centre for Equine Studies (AHT), in Newmarket, U.K., aims at producing a practical tool to help owners, riders, trainers, and veterinarians recognize signs of pain from a ridden horse’s facial expressions. Owners and trainers do not widely understand facial expressions of pain in ridden horses. This means a horse’s health and welfare can be threatened, because veterinary assistance is not sought sufficiently early, if at all.

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A recent video produced by AHT available online, provides individuals working with horses insight into how AHT researchers have developed and tested an ethogram, to ensure it could be applied by a broad range of people within the equine industry, and whether or not the ethogram is effective in not only helping differentiating a lame horse from a sound horse.

Anecdotal evidence appears to suggest that owners, riders, and trainers have a poor ability to recognise signs of pain seen when horses are ridden. As a result, problems are labeled as training-related, rider-related, behavioural, or considered “normal” for that horse because “that’s how he’s always been.” That could means pain-related problems can be disregarded, the horse continues in work, and the problem gets progressively worse. If pain goes unrecognised and is not referred to a lameness specialist at an early stage, problems may become too advanced to be resolved, or managed as well as they might have been if spotted sooner.

The recognition of facial expression changes could potentially save horses from suffering and from chronic injuries by enabling owners and trainers to recognise pain sooner, and ensure the horses are provided with the veterinary care that they require. Developing a practical tool for recognizing facial expressions, similar to that of a body condition score chart, could dramatically improve the health and welfare of all horses.

The ethogram is a catalogue of facial expressions including the ears, eyes, nose, muzzle, mouth, and head position. Each body part can display an expression which may be normal, or reflect pain, conflict behavior or distress.

Research shows in its first stage of testing, the ethogram was successfully applied by a variety of people from different backgrounds, to a selection of photographs of horses’ heads while they were ridden. Using the ethogram these individuals could identify different expressions in each horse, such as ear position, eye changes, and muzzle tightness. The results were highly repeatable among the analysts proving that, with guidance from the ethogram, owners could potentially reliably recognize different expressions in their horse’s face.

Interview with Dr Sue Dyson.

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Source: Youtube channel AHT (AHTTV)

Horse International : BLOOD RULES

It is funny throughout sports horse magazines we discuss ‘blood’ and generally in a good way; “the horse had plenty of blood,” indicating the horse has thoroughbred in his genealogy. “I made the time cross country because he is a blood horse, three quarters thoroughbred.” We consider blood in a positive and practical way. The reader has a good feeling about the horse and his rider. But when we change the sentence slightly, we immediately have a flash of fury in front of us: “horse and rider were eliminated from the competition due to the presence of blood.” Rider and all associated parties are doomed to the judge and jury of keyboard warriors and our sport becomes threatened by animal activists.

Tough times

Our governing body the FEI are used to tough times, creating rules to manage fairness of sport and welfare of the horse. The new proposed so-called blood rule is a contentious issue and for those of you who have only had the rumour mill rather than the facts here is the proposal: Art 241 Elimination: Blood on the horse’s flank caused unintentionally by the athlete’s leg will be penalised by elimination; minor cases of blood on the flank will not incur elimination. Art. 242 Disqualification: Marks and/ or blood on the horse’s flank as a result of an excessive use of the spur(s) will be penalised by disqualification. There are two words which if the proposals went ahead could create a litigious mine field for each and every ‘Ground Jury’ who have ultimate responsibility for a competition: Elimination and Disqualification. Whilst we consider the ‘steward’ to be the ‘arena police’ it is actually the Ground Jury and the judges who make up this team who would be called upon to make decisions on whether a rider has deliberately injured a horse or accidently.

This decision has huge implications, be it because of the prize fund or prestige at a major championship.

For example, if you are in a jump off at a major competition and there are only three of riders in the jump off, a speck of blood caused by accident would mean elimination but will still win third place and the third place prize money whilst a construed deliberate spur mark for example would mean disqualification and removal from the class and loss of any earnings. Our esteemed expert for this issue explained succinctly top level horses are treated like royalty and the care and attention that is paid to these top jumping horses is second to none.

Mark Beever is right, I can not imagine an incident where a 5* rider would be deliberately harming a horse. Mark mentioned a horse bleeding from a self inflicted injury such as an overreach and I have been informed whilst the stewards and Ground Jury would expect the horse be declared fit to continue by the veterinarian present on the show ground with appropriate treatment the Ground Jury would not take action against any rider and would leave it to rider and vet’s discretion at the horse’s fitness to continue into the next round of a competition.

Pizza cutters

Whilst researching this topic I spoke to several officials who feel that the FEI are between a rock and a hard place with this rule. Judges could potentially be sued for defamatory behaviour in disqualifying a rider as it would indicate the rider was abusive to their horse. Judges could also be sued for loss of earnings. Perhaps rather than looking at the

presence of blood after a jumping round, we should look more practically as Mark Beever suggests. The grooms prepare the horses and the riders ride the horses and ride with hand, seat, legs and spurs. Some of the spurs are nicknamed ‘pizza cutters’ due to the serrated edges. The clue perhaps is in the name! Maybe it would solve much of the problem if the FEI just reviewed the spurs that were legal? We do have rules for pony riders on types of spurs available for competition use, perhaps it is time for all classes to use ‘kinder spurs’; no rowels and without sharp edges.

The legal aspect

The mine field of legality means we spoke to Luc Schelstraete, Nicol Dominiuk and Piotr Wawrzyniak of Schelstraete Equine Lawyers in The Netherlands: “The most disputed incidents have been in relation to spur marks, where discussions were raised in connection to the disqualifications of several respected riders, including Bertram Allen and Scott Brash in distinctive 5* shows and Stephan de Freitas Barcha and Nicola Philippaerts in the 2016 Olympic Games. However when riding a cold-blooded horse or when approaching a fence with a slightly long distance, adding leg is only natural. This can, in certain situations, result in a small rub on the horse’s flank.

The severity of the rub may also depend on the sensitive skin type of the horse or an earlier scratch in the same area. However, no matter the magnitude of the rub, the FEI has applied a strict approach to the blood rule and disqualified riders on this basis, with no exceptions in relation to size or amount of blood.

The FEI recently sent out a proposed amendment to the abovementioned rule for the coming 2018 FEI Jumping Rules. The Jumping Rules have undergone a full revision and there has been a significant change to the ‘blood rule’. The proposed rules are the following: blood on the horse’s flank caused by the athlete’s leg may lead to elimination (instead of disqualification) and (NB) minor cases of blood on the flank(s), as described in the Jumping Stewards Manual, will not incur elimination. This rule would be included under article 241 of the FEI Jumping Rules, which is the elimination rule.

Although this new paragraph refers to the Jumping Stewards Manual, the Jumping Stewards Manual does currently not define ‘minor cases of blood’ in relation to blood on the flank(s). At this moment the Jumping Stewards Manual only refers to minor cases of blood in the mouth where a horse appears to have bitten its tongue or lip. Secondly, the proposal slightly amends the article on mandatory disqualification, which in the proposal states that cases of marks and/or blood on the horse’s flank as a result of an excessive use of the spur(s) will be penalized with disqualification.

The difference between elimination and disqualification appears to be the ‘excessive use of spur’, however, what defines ‘excessive use of spur’ is also not further clarified. This is unlike the similar rule of ‘excessive use of whip’ which is clearly defined in the FEI Jumping Manual for Stewards as well as in Article 243 of the FEI Jumping Rules. Further it is not clear what kind of mark the FEI is referring to in these articles. It could be interpreted as anything from a swelling to bald spots to raw skin to rub to bleeding. We trust that the National Federations will approach this request with due care. Despite the fact that the FEI’s initiative is appreciated, there are serious legal concerns regarding the proposed changes. It appears in the proposal that the FEI will allow some discretion to the stewards in regard to the ‘blood rule’ in 2018.

The effort in trying to improve this rule is welcomed however, in order to obtain certainty, a clear understanding and equal, objective, application of these rules, further clarification to how and when they are intended to apply must be provided. This is particularly important when it comes to the vague and undefined terms ‘mark’, ‘excessive use of spur’ and ‘minor cases of blood’. If not, it runs the risk of diverse, arbitrary, application of the rules and unfair, deviating outcomes re no-consequences, elimination or disqualification in similar situations. These differences may have detrimental consequences on the riders results, ranking, earnings and reputation and should therefore be studied and improved with due diligence. Unlike the dressage sport in which especially judging as such was causing controversy due to risk of subjectivity, jumping has in its core been objective. This can however change if the ‘blood rule’ will be multi-interpretable, flexible and vague.”

Times have changed

Our sport titters on the edge of professionalism and amateurish approaches to managing itself. We rely on part-time officials, who historically came from a wealth of knowledge, practical horsemanship and mostly military and police backgrounds. Times have changed and just like we now have professional politicians who govern our countries but who have never managed a business before, many of our officials have never ridden or managed people at a very high level before. The riders and the sport continued to become more and more professional and prize money is very important for all parties. We should not blame our officials for the rules they have to follow but we need to be very aware of interpretation of rules that are neither practical or easily interpreted. Finally we should remember nobody here is the bad guy (well 99.9% are not) but let us campaign to look at the source of the problem not the result and sort the spur rule out!

” We trust that the National Federations will approach this request with due care.”

– Schelstraete Equine Lawyers –

Proof of ownership – How do you prove that your horse is actually yours?

Most riders, grooms and owners will be able to recognize and identify their horse from miles away. Not to mention that there is a multitude of identification methods for horses such as; microchipping, DNA, hot branding, freeze branding, iris scans as well as passports, which include a detailed description of the horse. However, none of the abovementioned methods will be able to prove who is the owner of a horse in a legal dispute of ownership, or in case the horse escapes, gets stolen or is stabled by someone else.

Equine passport not enough

The equine passport has become an obligatory document in the EU and is intended for registration and identification purposes and to track veterinary records. Apart from registering the horse, the owner is also required to register changes of ownership. Due to this, there have been attempts to use the equine passports as a proof of ownership in legal disputes. Though the equine passports, as well as registration, provide a name of an “owner”, the Courts dealing with legal disputes regarding ownership do not accept this as adequate proof since it does not indicate true legal ownership. This stance is also supported by the Dutch Enterprise Agency (RVO), the KWPN and the FEI who confirm this on their websites.

European Member States: A legal contract is key

National courts in diverse European Member States have stated that an equine passport is not to be confused with a legal document proving a transfer of ownership and that being identified as owner in the horse’s passport does not necessarily mean that this person is the legal owner. Apart from a contract of sale, one can further support ones ownership claim on basis of proof of boarding and feed payments and veterinary costs.

Need legal advice?

As each sale of a horse is different and may have significant legal consequences, we advise that a lawyer takes part in the drafting of a contract of sale. Schelstraete Equine Lawyers will be happy to assist you, you can contact us here, should you have any inquiries.

Another win for Schelstraete Equine Lawyer’s client: Co-owner got sued for diminishing the value of the horse

It is common in the horse business that equine enthusiasts co-own horses. This can be co-ownership to split expenses, to sponsor or to divide risk. It is further also common that only one party trains and develops the horse and when the horse is sold, costs are deducted and the money is divided. Things did definitely not run as smoothly for one of Schelstraete Equine Lawyers´ (SEL) clients, which resulted in a legal dispute before the court of Arnhem.

Sued for damages

In the case at hand the two parties co-owned a horse where the respondent was the one in charge of training and showing the horse with the ultimate goal of selling the horse. The owners jointly agreed on selling the horse for the price offered by the buyer.  Months later the respondent found himself being sued for damages due to an injury which the horse had suffered more than a year prior which, according to the plaintiffs, had decreased the value of the horse.

Court favors SEL

The court followed the argumentation of SEL and ruled that firstly; there was no proof that the respondent was responsible for the injury, secondly; this fully recovered injury did not influence the pricing of the horse and lastly; the court stated that if the owners were not happy with the price offered for the horse, they should not have agreed on the sale.

Need legal advice?

Co-ownership may lead to several legal complications. Schelstraete Equine Lawyers have years of experience in the field of equine law and our team of experienced equine attorneys can assist you in all equine law matters. Please feel free to contact us here.

For more information regarding the case, please make use of the following details: Rechtbank Gelderland, 09-08-2017, C/05/310439 / HA ZA 16-548 / 167

Four horses eliminated under the blood rule in the Dressage and Para-dressage Competitions during the European Championships in Gothenburg

The FEI dressage blood rule states, “If the Judge at C suspects fresh blood anywhere on the Horse during the test, he will stop the Horse to check for blood. If the Horse shows fresh blood, it will be eliminated. The elimination is final. If the Judge through examination clarifies that the Horse has no fresh blood, the Horse may resume and finish its test.” ( Article 430.7.6 FEI Dressage Rules)

Three horses were eliminated due to blood in their mouth and one due to a bleeding spur mark during the European Championships in Gothenburg. The blood rule, unlike the recently proposed jumping blood rule, is strict with no room left for interpretation.

The Swiss rider, Charlotte Lenherr, aboard Darko of de Niro ZS CH, was stopped midway in her Grand Prix performance when the judge at C saw pink colored foam in the horse’s mouth. Charlotte Lenherr later stated that the horse had a scratch on his bottom lip, which made him look pink around the mouth.

Darko of de Niro ZS CH was eliminated and was not allowed to resume and finish the test

The rule is clear and applied strictly, however, the situation in which a rider gets stopped midway their test and it´s proven that the horse has no fresh blood in the mouth but that the discoloration is, for example, from the horse feed or treats; this could prove to be very distracting and detrimental to both the horses and the riders performance throughout the rest of the test.

It is thus urged to keep this in mind when calling upon this rule, where waiting until after the test is recommended.

For more information and updates on the Blood Rule follow our website and check the upcoming edition of Horse International wherein we have been interviewed (View of the Expert page 42 and 43) on the implications of the proposed amendment of the Blood Rule that have recently been announced by the FEI.

Schelstraete Equine Lawyers wins short law suit regarding seized horses

Could you imagine having your horses seized due to financial issues of your trainer!?…

Schelstraete Equine Lawyers’ client, Mr. van der Endt, returned home from his holiday, only to find out that his two horses had been seized by a bailiff. This seizure was made on the basis of a court order, which had nothing to do with Mr. van der Endt. The court order allowed the bailiff to seize property of a third party, in whose stable the horses of Mr. van der Endt were stabled for training.

When Mr. van der Endt contacted the bailiff, explaining that he was the owner and asking for the whereabouts of the horses and the lifting of the seizure, the bailiff refused to release the seized horses, stating that Mr. van der Endt had failed to prove that he was the actual owner of these horses.

Schelstraete Equine Lawyers filed summary proceedings at the court of Zeeland-West-Brabant to fight this inaccurate seizure. The court followed the argumentation of Schelstraete Equine Lawyers and declared the bailiff’s seizure ungrounded. Having stated this, the court ordered the immediate release of the horses, back to Mr. van der Endt.

“You can learn something from this, as an owner, and definitely as a bailiff,” Mr. van der Endt stated. “As owner you apparently run such risks. I think that´s grave. If we wouldn’t have intervened, the horses could’ve been auctioned out. People who do not have the courage or the money to object in these situations can lose their horse this way. But fortunately, the law prevailed this time. ”

Under Dutch law, as well as under several other jurisdictions, animals fall under the application of property law. However, the seizure of horses, and especially sport horses, is not – and should not be treated like – any other seizure of property. Horses are not only sensitive to the environment they are in but also the type of food and training they get. These factors may influence their wellbeing and performance for a long time after exposed to changes. Therefore, seizing a horse may have damaging effects on its welfare, safety, ability to perform and consequently also its value. Fortunately, the case of Mr. van der Endt and his horses was solved in rapid summary proceedings however, this is unfortunately not always the case in horse seizures.

Schelstraete Equine Lawyers have successfully dealt with several seizure and retention cases and welcomes anyone who is willing to fight to get their beloved horse back.

Mr. Luc Schelstraete appointed as the Legal Advisor of VSN in the Netherlands

As per September 1st, Luc Schelstraete from Schelstraete Equine Lawyers and the EUAEL will be active as the legal advisor of the board of the VSN. This organisation unites the interests of the horse dealers in the Netherlands. His knowledge in the equine legal field together with his experience in the equine business for more than 30 years will contribute to the further development of VSN.

Luc Schelstraete will still be practising as an equine lawyer from Oisterwijk and Amsterdam, the Netherlands.

The Control of Horses Act 2015 (CHA 2015): Question and answer on UK equine queries

The Control of Horses Act 2015 (CHA 2015) received Royal Assent on 26 March 2015. It amends the Animals Act 1971 (AA 1971) to give local authorities, freeholders and occupiers of land in England the power to deal more efficiently with fly-grazing horses. The amendments came into force on 26 May 2015. The definition of Horses includes an ass, mule or hinny.

 The CHA 2015;

  1. Gives local authorities in England a power to detain horses which are in any public place, including common land, town or village greens as well as highway verges.
  2. In addition it gives freeholders and occupiers of land in England a power to detain horses which are on their land without lawful authority .
  3. The Act also introduces a new procedure for the detention or disposal of detained horses which can be disposed of by way of sale, humane destruction or disposal 96 hours after detention.

Question and answer on UK equine queries

What if somebody wishes to buy a plot of land from a local farmer to keep horses on. The field is currently used by the farmer to graze sheep. The buyer  intends to use the field to house, graze and exercise  horses. Will planning permission be required?

Answer

Planning permission will be required if the local planning authority consider there is a material change in use of the land from agriculture to the keeping of horses for recreational purposes.

Material change of use

Under the Town and Country planning Act (TCPA 1990), planning permission is required for the carrying out on land of any development

Development is defined as the “carrying out of building, engineering, mining or other operations in, on, over or under the land or the making of any material change in the use of any buildings or other land”

As such, there is a basic requirement for planning permission to be obtained if there is a material change of use of any buildings or land.

The TCPA 1990 does not define “material change of use”. However, the use of land for the purposes of agriculture or forestry does not constitute development and therefore does not require planning permission. Agriculture includes the:

  • Breeding and keeping of livestock (including where kept for the production of food or using in the farming of land).
  • Use of land as grazing land.

In Belmont Farm Ltd v MHLG (1962) 13 P&CR the Court held that the term “breeding and keeping of livestock” in the statutory definition of agriculture did not apply to the breeding and keeping of horses (except in connection with any farming use).

If the buyer intends to use the field only as grazing land it will be an agricultural use and planning permission will not be required (even if the horses are recreational horses). However, the horses must only be on the land for the primary purpose of grazing. If the horses are given supplemental feed and kept in the field for exercise and accommodation the predominant use of the land may not be agricultural.

In Sykes v Secretary of State for the Environment (1981) 2 All ER 954 Donaldson LJ said that the question to ask is “what use is being made of the land?”

“If horses are simply turned out onto the land with a view to feeding them from the land, clearly the land is being used for grazing. If, however, horses are being kept on the land and are being fed wholly or primarily by some other means so that such grazing as they do is completely incidental and perhaps achieved merely because there are no convenient ways of stopping them doing it, then plainly the land is not being used for grazing but merely being used for keeping the animals.”

In determining the use of the field the local planning authority will look at factors such as:

  • Whether the land will be used permanently for horses.
  • Whether there will be any related structures in the land such as field shelters and jumps.
  • Whether the horses will be fed primarily from grazing or from imported food.
  • Whether the land will be used as a recreational or exercise area.

Horse related structures

Structures connected with the keeping of recreational horses do not enjoy permitted development rights associated with agricultural holdings under the Regulations.

Moveable structures such as field shelters may be chattels and therefore are not development requiring planning permission. However, this depends on their size, intended degree of permanence and physical attachment to the land (Cardiff Rating Authority v Guest Keen Baldwin’s Iron and Steel Co Ltd [1949] 1 Q.B. 385 and Skerritts of Nottingham Ltd v SSETR (No. 2) [2000] 2 PLR 102).

A horse shelter is likely to require planning permission if:

  • It requires dismantling or special lifting equipment to move it as one unit.
  • It is “essential” to the welfare of the horses (as this indicates permanence).
  • Although not fixed to the ground by any mechanical means, its weight provides sufficient affixation.

(John Bartlett v East Dorset DC [2011] JPL 978.)

Swedish VAT liability for equestrian sport prize money here to stay despite EU judgment

Strictly prize money or supply of services for consideration? That is the question in the EU judgment that came close to jeopardizing how the Swedish tax authorities see the VAT liability for prize money in equestrian sports.  

Since 1991, prize money won in the Swedish harness and thoroughbred racing industries was considered subject to VAT, which helped the equine industry develop into a business with correct accounting. For many horse owners in Sweden, the VAT system provides an opportunity to recover the VAT on expenses and fees related to their horse.

“In addition to the advantages for the government, the VAT liability has also made it possible to correctly and professionally account for all revenue and expenses. It’s positive that Skatteverket (the Swedish Tax Agency) has now discussed the judgment and found a solution to keep in place the VAT liability for prize money in Sweden,” says Cecilia Tholse-Rogmark, one of the Gulliksson partners actively engaged in Equine Law.

The case in question is a Czech case that has been ongoing for the last two years. The case raised the question of whether participating in thoroughbred races constitutes a business activity subject to VAT. When the case reached the European Court of Justice last autumn, it was determined that prize money with an amount that varies depending on the horse’s ranking in the race does not constitute consideration for the supply of services (Judgment C-432/15, Bastová).

Although the Court of Justice’s ruling must be followed by all EU countries, Skatteverket teamed up with equine industry representatives to find a solution: defining the race as the supply of services for consideration on the condition that the organizer pay the exact same consideration to everyone in the starting gate for participation.

“This way, the consideration is completely independent of the contest itself and the horse’s ranking in the race. For many horse owners, VAT liability and input VAT are a key financial factor. Essentially, it’s about giving the equine industry equal rights, obligations and business opportunities,” says Tholse-Rogmark.

Skatteverket issued an opinion on 12 July entitled “Omsättning mm vid idrottstävlingar, mervärdesskatt” [Revenue in sports competitions, VAT] (reference number 202294278-17/111). Read the full opinion (only available in Swedish).

Svensk Travsport has announced that all harness race starters will receive at least SEK 500 in starting pay beginning on 1 January 2018 and Svensk Galopp will look into the matter this autumn.

Source: Gulliksson

 

The Importation of Embryos, Ova and Semen in the UK

Under the Animal Health and Welfare Act 1984

The Importation of Embryos, Ova and Semen Order 1980 as amended it is unlawful to import equine semen without a qualifying health certificate. Notwithstanding the regulations UK veterinary surgeons are regularly being asked to break the law by inseminating imported equine semen that does not have an accompanying health certificate.

 

The current law

  • All consignments of equine semen sent to or received from (or traded with) other EU Member States must be accompanied to the place of destination by an original, valid health certificate (ITAHC), issued in the country of origin.
  • It is illegal for semen to be shipped to the UK without such original certification.
  • Anyone receiving such semen without the correct original certification should not use it for insemination and should immediately inform the authorities via their local animal health office.
  • The “place of destination” is the location mentioned on the health certificate.
  • The “importer” is the person named on the health certificate –whether the agent or the owner.
  • The “offence” is committed by the importer – but only if they fail to destroy the semen.
  • Insemination is evidence that the semen has not been destroyed and therefore (for practical purposes) the offence is committed by the act of insemination.
  • A photocopy will not suffice: the legislation states “certificate” not “Certificate or copy of certificate” or “certificate or authorised copy (ie signed and dated by the vet as an authorised copy) of certificate”.

The British Equine Veterinary Association (BEVA) has reported that its members are being regularly asked to break the law by inseminating imported equine semen that does not have an accompanying health certificate.

Such practice not only jeopardises the current high health status of the UK horse population, but also risks the professional status of the vets involved. Apparently thousands of shipments of equine germinal product (semen, ova or embryos) are imported into the UK every year.  It is a legal requirement that all imported equine semen to be accompanied to the place of destination (usually to the side of the mare) by an original, valid health certificate (ITAHC), issued in the country of origin.

It appears that recently, consignments of equine semen have been imported without the appropriate health certificates meaning that there is no guarantee that the semen is free from the stated diseases or even that it is from the chosen stallion. Evidence shows that well-known importing agents have advised mare owners that these certificates are unnecessary and these businesses have also even criticised vets who refuse to inseminate mares with uncertified imported semen.

The use of uncertified semen leads to the real risk of a recipient mare becoming infected with diseases such as CEM or EVA, the potentially rapid spread of disease in breeding stock and eventual restrictions being placed on breeding premises. Recent outbreaks of Equine Infectious Anaemia (EIA) in Europe have exacerbated such health threats to the UK herd.

The personal and professional reputation of any vet involved using uncertified semen is also in danger, with the RCVS likely to take a tough line with any vets who disregard animal health laws and the high health status of British horses with some import agencies placing additional pressure on vets to inseminate mares without the necessary paperwork, even though this action illegal and places recipient mares under a direct threat from a notifiable and incurable disease. This seems particularly cavalier given the recent outbreaks of EIA across Europe.”

BEVA is supporting its members with the following protective measures:

  • Notifying owners that they must tell the agent that they will not accept semen without a valid health certificate, in order to protect the health of their own horses.
  • Reassuring all vets performing stud duties that they are right to refuse to inseminate mares with semen that isn’t accompanied by a valid health certificate, in order to protect their professional status and safeguard the health status of the UK herd.
  • Making sure owners and vets are fully aware that if they receive imported semen that isn’t accompanied by a valid health certificate they must report it immediately to their local animal health office and arrange for the semen to be destroyed.
  • Reminding agents of the law and to make them aware that all BEVA members have been advised to report any indiscretions to their local animal health office.

Horse International: Equine cloning: the legal aspects

In this issue of Horse International’s Legal and Veterinary Journal we take a look with our readership into cloning of horses and its legal implications. This article provides useful overview on the approach adopted within various jurisdiction worldwide approach cloning.

In 2012 the FEI lifted the ban on cloned horses in international competition. Almost a decade after the first cloned horse was born in Italy, Promotea. As the FEI permits clones to compete, it is interesting to look at the legal aspects of cloning. Cloning opens new and unexplored possibilities for the equine businesses. So the questions raise which jurisdictions allow cloning and which jurisdictions not? Is it possible to register a cloned horse with the studbook or not?

The EU

In 2013 the European Commission finalized a draft directive in which cloning of five animal species for food, including horses, will be banned. According to the Parliament it should have the form of a regulation, directly applicable in all member states and not only cloning for food purposes should be banned, but cloning for all purposes and also the sale of cloned livestock, theirs offspring, and products derived from them. Despite the fact that the first cloned horse was born in Italy, this will mean the end of legal horse clones in the EU. As a result there is currently no European legislation on this subject, leaving the decision whether cloning of horses is allowed or not to the member states. How long this situation will last is unclear, as well it is unclear whether the view of the European Parliament will change throughout the years or not.

The Netherlands

According to Dutch legislation cloning of all animals, including horses, exclusively for sport purposes or leisure is not allowed (article 2.23 of the Law on Animals). When the cloning is not exclusively for this purpose one can try to obtain a license from the Minster of Economic Affairs. According to our information such a license request is not yet filed with or granted by the Minister of Economic Affairs.

The US

The US has a far more, if not the most, liberal view on cloning: in 2008 the FDA (US Food & Drug Administration) published an extensive research report on cloning animals. The main conclusion: cloning poses no unique risks to animal health. Reason why the federal government did not see a reason to impose federal legislation banning cloning. As a result cloning of horses is allowed in the US as we did not find any state banning the cloning of animals.

Other countries

According to our information cloning in France is still allowed. Also in Asian countries like China it seems there is no ban on cloning. Also the UK allows cloning for non-food purposes on a license basis. According to the information of legal experts in the UK when effectuating the Brexit the plan is to lift the restrictions on cloning fully, so no license is necessary.

Studbooks

The view of most studbooks on cloning evolved throughout the years, some of them triggered by the decision of the FEI. Studbooks which allow the registry of cloned horses include the KWPN (Dutch Warmblood), the BWP (Belgium Warmblood), Zangersheide, Holsteiner Verbands, World Breeding Federation of Sports Horses (WBFSH), and the Continental Studbook USA. The American Quarter Horse Association (AQHA) as well as the Pure Bred Arab Register do not allow the registry of clones. For several years it was uncertain whether the AQHA could upheld its refusal to register clones. The uncertainty ended when the U.S. Court of Appeals for the Fifth Circuit overturned an earlier ruling ordering the AQHA to immediately begin registering clones and their offspring, thus allowing the AQHA to refuse the registry of clones.

Conclusion

The view on cloning of animals differs substantially throughout the world. The EU tries to ban cloning completely while the United States and China are fully allowing it. The FEI and most studbooks have a liberate view on cloning as well, making it possible to register clones and to compete with them internationally. When the European Union will ban cloning as well as the import of cloned animals this will mean the end of legal cloned horses in the European Union. The future will need to learn if and when the European Union will ban cloning and what the impact of cloning will be on the horse sport.

 

Written by A. Brouwers, attorney-at-law at Schelstraete Equine Lawyers.

PRACTICAL TIPS – FEI DOPING CASES

The article below was published in Horse Times.

In this edition of HT our legal experts discuss some of their thoughts on doping cases. In their daily practice they often represent athletes and horse owners in doping cases, pending for instance, before the FÉDÉRATION EQUESTRE INTERNATIONALE (THE “FEI”). In this article the experts examine the unpredictability of some doping cases.

We illustrate this article with the example of trimacionlone acetonide as the usage of this specific medication very often leads to the violation of doping / controlled medication regulations. For the purpose of this article we refer to these violations as “doping cases”. Cases involving trimacionlone acetonide demonstrate the unpredictability of doping cases.

TRIAMCINOLONE ACETONIDE AND WITHDRAWAL TIMES

Triamcinolone acetonide is a synthetic corticosteroid with anti- inflammatory effects.This medication is very often used to treat joints when a horse is not comfortable and/ or lame. If the treatment is performed correctly in the joint and the athlete observes the advised withdrawal/ detection times, then usually there should not be any complications following such a treatment. For triamcinolone acetonide the FEI advises seven (7) days withdrawal time. This is based on a single joint treatment with 12 mg dosage. The place where the injection was administered can however have significant effects on the withdrawal times and therefore also on the detection of a substance in question. From the American studies with regards to trimacinoloneacetonide it appears that the withdrawal time of seven days can be deemed correct but only under very strict and ideal conditions (the injection performed correctly) like, for instance, at the university equine clinic. In practice, the withdrawal times can be much longer than earlier expected.

The Association of Racing Commissioners International in North America recommends withdrawal times for intra-articular (IA) of seven days for triamcinolone acetonide based on 9 mg dosage. However, the problem is that, as the FEI correctly recognized in its regulations, horses are athletes that cannot speak for themselves. They cannot inform the veterinarian in question whether the needle has been injected properly in the joint and not, for instance, in the muscle. If the latter the case, then the withdrawal times get considerably longer.

TO COMPETE OR NOT COMPETE AFTER A TREATMENT?

Many vets to whom we speak in our daily practice are very reluctant to advise on any withdrawal time when treating sport horses. Various factors may specifically influence the withdrawal times, so you really need to investigate the horse very well. The vet must be familiar with the physiology of the horse in question in order to make a correct assessment on the withdrawal times. It must be mentioned that the FEI recommendations have been based on a very limited number of horses so even though the withdrawal times are officially published they should be treated only as guidelines. Reportedly, there have been cases involving withdrawal times of trimacinolone acetonide being 30 and 40 days. If an athlete wants to compete with the horse after this treatment he should – together with his vet – consider the matter and take a safety margin into account. It is further advisable to well-document the treatment and the decision to be made as – if things go wrong – the athlete can provide evidence to the FEI in possible proceedings.

THINKTWICE BEFORE AGREEING TO “ADMINISTRATIVE TRACK” SETTLEMENT

Athletes sometimes agree to the so- called “administrative track” of the FEI in which they can pay a certain amount for the violation and then go on with competing. This seems tempting at first sight, but in reality only a few athletes realize what the consequences are. If for example you are charged with doping within four years after such admission, then this first violation “settled via the administrative track” will count as first violation and the new violation will be qualified as a second violation. The penalties may be then doubled by the FEI. By three violations within the period of four years the athlete in question has a problem with the FEI. We are not saying that choosing the “administrative track” is not correct, but it always good to consider which options one has in the case at hand. Sometimes, it might be better to enter into a voluntary suspension and sometimes to fight the case.

CONCLUSIONS: GUILTY UNTIL PROVEN OTHERWISE

Contrary to criminal proceedings the doping regulations worldwide assume that the “person responsible” (the term under the FEI jargon for the person accountable for the horse) is guilty until he proves otherwise. It is then up to him to prove otherwise. Talking specifically about the equestrian sport it comes down to the following. The person responsible accused of the violation needs to demonstrate that he can explain how a specific medication got into the horse’s system. Stating “I do not know” has no use. Under the doping regulations the strict liability principle applies. After proving how the medication got into the horse’s system, the person responsible has to prove that he did not have “significant fault” or “negligence” in the violation of the doping regulations. The factual circumstances of the specific case are here crucial.

Very important are:

  1. proof of the assessment of the withdrawal time;
  2. not competing during that period (no enhancement of the performance); and
  3. maintenance of veterinary records. The veterinarian who treated the horse must be a person reputable whom the person responsible could reasonably trust and not a random vet. All this together can play a role in the FEI Tribunal’s decision.

FEI_detection_times_lab_2015_2.pdf

Nancy S. Loving. DVM, Corticosteroid clearance following joint injections. See http://www.thehorse.com/articles/35746/corticosteroid-clearance-following-joint-injections

For more information please contact us.

The Control of Horses Act 2015 (CHA 2015): Question and answer on UK equine queries

The Control of Horses Act 2015 (CHA 2015) received Royal Assent on 26 March 2015. It amends the Animals Act 1971 (AA 1971) to give local authorities, freeholders and occupiers of land in England the power to deal more efficiently with fly-grazing horses. The amendments came into force on 26 May 2015. The definition of Horses includes an ass, mule or hinny.

The Control of Horses Act 2015 (CHA 2015)

 

 The CHA 2015;

  1. Gives local authorities in England a power to detain horses which are in any public place, including common land, town or village greens as well as highway verges.
  2. In addition it gives freeholders and occupiers of land in England a power to detain horses which are on their land without lawful authority .
  3. The Act also introduces a new procedure for the detention or disposal of detained horses which can be disposed of by way of sale, humane destruction or disposal 96 hours after detention.

Question and answer on UK equine queries

What if somebody wishes to buy a plot of land from a local farmer to keep horses on. The field is currently used by the farmer to graze sheep. The buyer  intends to use the field to house, graze and exercise  horses. Will planning permission be required?

Answer

Planning permission will be required if the local planning authority consider there is a material change in use of the land from agriculture to the keeping of horses for recreational purposes.

Material change of use

Under the Town and Country planning Act (TCPA 1990), planning permission is required for the carrying out on land of any development

Development is defined as the “carrying out of building, engineering, mining or other operations in, on, over or under the land or the making of any material change in the use of any buildings or other land”

As such, there is a basic requirement for planning permission to be obtained if there is a material change of use of any buildings or land.

The TCPA 1990 does not define “material change of use”. However, the use of land for the purposes of agriculture or forestry does not constitute development and therefore does not require planning permission. Agriculture includes the:

  • Breeding and keeping of livestock (including where kept for the production of food or using in the farming of land).
  • Use of land as grazing land.

In Belmont Farm Ltd v MHLG (1962) 13 P&CR the Court held that the term “breeding and keeping of livestock” in the statutory definition of agriculture did not apply to the breeding and keeping of horses (except in connection with any farming use).

If the buyer intends to use the field only as grazing land it will be an agricultural use and planning permission will not be required (even if the horses are recreational horses). However, the horses must only be on the land for the primary purpose of grazing. If the horses are given supplemental feed and kept in the field for exercise and accommodation the predominant use of the land may not be agricultural.

In Sykes v Secretary of State for the Environment (1981) 2 All ER 954 Donaldson LJ said that the question to ask is “what use is being made of the land?”

“If horses are simply turned out onto the land with a view to feeding them from the land, clearly the land is being used for grazing. If, however, horses are being kept on the land and are being fed wholly or primarily by some other means so that such grazing as they do is completely incidental and perhaps achieved merely because there are no convenient ways of stopping them doing it, then plainly the land is not being used for grazing but merely being used for keeping the animals.”

In determining the use of the field the local planning authority will look at factors such as:

  • Whether the land will be used permanently for horses.
  • Whether there will be any related structures in the land such as field shelters and jumps.
  • Whether the horses will be fed primarily from grazing or from imported food.
  • Whether the land will be used as a recreational or exercise area.

Horse related structures

Structures connected with the keeping of recreational horses do not enjoy permitted development rights associated with agricultural holdings under the Regulations.

Moveable structures such as field shelters may be chattels and therefore are not development requiring planning permission. However, this depends on their size, intended degree of permanence and physical attachment to the land (Cardiff Rating Authority v Guest Keen Baldwin’s Iron and Steel Co Ltd [1949] 1 Q.B. 385 and Skerritts of Nottingham Ltd v SSETR (No. 2) [2000] 2 PLR 102).

A horse shelter is likely to require planning permission if:

  • It requires dismantling or special lifting equipment to move it as one unit.
  • It is “essential” to the welfare of the horses (as this indicates permanence).
  • Although not fixed to the ground by any mechanical means, its weight provides sufficient affixation.

(John Bartlett v East Dorset DC [2011] JPL 978.)

The horse I’ve purchased turns out to be a cribber, what to do now?

Stable vices such as cribbing (and also air sucking) appear quite often with horses. This even appears with horses which are further healthy.

It is a nasty habbit which you, being the owner of the horse, most definitely would not accept. Whenever cribbing is mentioned in this article this should be understood as being air sucking as well.

Is cribbing a ground on which you may annul the purchase agreement?

Should cribbing be considered a defect on which you may annul the purchase agreement? Or should be stated that as a consequence of the cribbing the horse is no longer suitable for the purpose which it was purchased for, for instance as a sports horse.

Several times in the past the Court of Arnhem, the Netherlands, (better known as the district Gelderland) has ruled that it is not entirely necessary to state that the horse is not suitable for the purpose. Stating that the horse is unsuitable is a difficulty when it comes to cribbing now that this does not mean that the horse is unsuitable for participating in competitions.

In the event that, according to the Court, it is clear for the seller that the buyer does not wish to buy a cribber and the horse does appear to be a cribber after the sale and purchase, this leads to a defect / non-conformity and therefore a basis on which the agreement may be annulled. In short, if you have explicitly asked the seller if the horse does not have any stable vices, or more specifically, whether the horse is a cribber and these questions have been answered with a negative response, you are in a favourable position when it comes to annulling the agreement if the horse does show these stable vices shortly after delivery.

Even in the event that the horse still participates in competitions at a high level and performs well this does not form an obstruction to be able to annul the agreement.

Question is whether the Court will stay in line with the case law. Currently a case is being handled at Schelstraete Equine Lawyers in which the purchase agreement has been annulled by the buyer due to cribbing. We expect that the judge will rule in line with the case law. When the outcome of this matter becomes known, Schelstraete Equine Lawyers will inform you accordingly through her newsletter.

Term for antedating 

Do note that cribbing comes with a short term for antedating now that this stable vice can be developed quickly. The defect can already be detected within several days after delivery of the horse. If the stable vice is detected sometime after the delivery took place, there is a risk that you will be unable to prove that the horse already was a cribber at the moment of delivery.

So if you discover within a short timeframe that your horse is a cribber, it is advisable to document this with for instance a video in order to secure your rights.

Do you have any further questions on this subject or other legal questions and/or issues you may then contact the writer of this article mr. Amanda Brouwers – Schelstraete Equine Lawyers.

The complete decision and in particular the interesting reasoning of the Court can be found on rechtspraak.nl (only available in Dutch).

Recent FEI doping case of Schelstraete Equine Lawyers

The defence team consisting of Mr Piotr Wawrzyniak of Schelstraete Equine Lawyers and the co-counsel Ms Lisa Lazarus, Esq. successfully represented a Saudi Olympic Equestrian in controlled medication proceedings before the FEI Tribunal.

The cases involved triamcinolon acetonide usage. Despite the fact that the athlete observed the withdrawal / detection period of the medication as prescribed by the FEI (Click to view document) before re-entering into the competition again, the horse tested positive on triamcinolone acetonide. The case was not the first violation of the athlete.

Thanks to the successful legal argumentation based on the doping case law, the FEI Tribunal found that the degree of fault of the PR is to be considered as small, when viewed in the totality of the circumstances in the case at hand. The Tribunal agreed with the defence team, that the athlete did everything he could have possibly done when selecting the veterinarian treating the horse. In the view of the FEI Tribunal the defence team proved that the athlete was careful when selecting his veterinarian, and he made sure to find someone with expertise and who was recommended also by his usual veterinarian, who was not available to treat the horse at the time.

Like in any doping case, the circumstances are decisive. Good argumentation and a well-thought strategy are decisive. So, if you are confronted with a sanction coming from the FEI or another doping authority and you have doubts about your legal position. Then please contact us. Before doing anything, obtain legal advice and remember: you can’t unscramble scrambled eggs.

Dutch judge declares to be competent in an International Equine dispute between Dutch principal and an Italian Architect and Italian Interior decorator

The Court of Oost-Brabant has made a decision in an interim judgement during a court procedure between a Dutch equine business owner and her Italian counter parties with regards to her competence in this matter.

The case concerns the performance of an agreement with regards to contracting of work in the Netherlands. The equine business owner contracted an Italian architect and an Italian interior decorator, which according to the business owner failed to fulfil their obligations set out in the agreements they made. This resulted in substantial damages.

Apart from claiming damages from the contracted parties the business owner also decided to claim damages from the (former) directors of the interior decorator and a subcontracted Italian interior decorator.

The architect, one of the directors of the interior decorator and the subcontracted interior decorator all were of the opinion that the Dutch judge wasn’t competent and that the case should be decided by the Italian judge. The business owner disputed these statements.

The Court decided, in line with the statement of the business owner, that based on the in the EU applicable EEX-regulation she is competent to rule on the dispute when it comes to the director of the interior decorator and subcontracted interior decorator. Therefore the litigation against these parties may be continued in the Netherlands.

The Court did declare that she was not competent where it concerns the dispute against the architecture agency. Reason for this was that in the opinion of the Court the business owner and the architect did agree on an applicable Court in Italy and this agreement was considered legally valid. As a consequence of this the Italian judge is the competent judge in this matter. The litigation against this party was therefore continued in Italy.

The complete decision and in particular the interesting reasoning of the Court can be found on rechtspraak.nl.

The equine business owner was represented by Mr. L.M. Schelstraete en Mr. P.M. Wawrzyniak and Mr. V. Zitman.

For more information (dutch only), go to rechtspraak.nl. Use NL:RBOBR:2017:1784 to view the article.

Court rules in favour of client Schelstraete Equine Lawyers in case of sold horse with fleeing behavior

On the 17th of May 2017 the Court of Midden-Nederland came to a final decision in a litigation procedure which was started by the buyer of an Icelandic mare. Schelstraete represented the seller in this case.

The buyer stated that the horse is showing fleeing behaviour, is suffering from a defect on the eye as well as that the horse was afflicted by a gastric ulcer, defects which were not mentioned prior to the purchase. Therefore the buyer requested the client to take back the horse and to refund the purchase price. Since the client was unfamiliar with the conditions of the mare, the client did not answer to the request from the buyer. Subsequently, the buyer commenced litigation against the client.

On the 17th of May 2017 the Court of Midden-Nederland ruled in favour of Schelstraete’s client. According to the Court the fleeing behaviour was neither substantiated nor proven as the buyer only substantiated the behaviour with one event, directly after the purchase. Subsequently she sent messages that her daughter was very happy with the mare and her daughter was training with the mare.

The other alleged claims regarding the eye and the gastric ulcer were rejected on formal grounds before the Court was able to assess the alleged defect. The lawyer of the buyer nor the buyer herself sent a message to the seller in which the purchase agreement was set aside or nullified regarding these alleged defects and after the daughter of the buyer kept training with the horse. Under Dutch law sending such a message or claiming the dissolution or nullification of the purchase agreement is essential. Failing to do so will result in the rejection of all your claims as a buyer and the obligation to pay the Court expenses of the seller. This decision of the Court of Midden-Nederland again underlines the importance of expert legal advice and representation in equine matters.  Matters in which we are happy to assist you.

The client was represented in this matter by mr. Schelstraete and mr. Brouwers of Schelstraete Advocaten.

 

Schelstraete Equine Lawyer’s client wins case about sold horse with back problems

The case revolves around the purchase of a horse by Schelstraete’s client which took place about the 28th of August 2013. After several months the buyer contacted the client stating that the horse has back problems and that the horse was no longer suitable for the dressage sport. The buyer demanded that the client would take back the horse and that the client would refund the purchase amount.

Since the client never experienced any back issues back in the day she possessed the horse and the horse didn’t show any other defects the client was not prepared to just take back the horse. The buyer then decided to go to Court.

To clarify the veterinary issues of the horse the Court decided that an expert opinion was needed. Three professors of the Clinic of the University of Utrecht studied the file and made a report. None of these professors were able to determine that the horse was already suffering from back issues during the sale and purchase so that they concluded that the client did sell a horse which was suitable for the dressage sport.

The Court of Rotterdam ruled on the 18th of May 2017 in favour of the client and rejected the claims of the buyer. The client is entitled to a compensation of the litigation costs.

The client was represented by mr. Schelstraete and mr. Loeffen of Schelstraete Equine Lawyers.

Health Certificate Cross Border Horse Transports No Longer Needed

The countries Belgium, the Netherlands, the Grand Duchy of Luxembourg and France signed on the 15th of May a memorandum of agreement concerning the transport of horses. This in consequence of a new initiative of the Federal Agency for the Safety of the Food-chain (FAVV in Belgium). The main idea behind this agreement is to simplify the transport on administrative and financial grounds. Moreover harmonises this memorandum the requirements relating to the transport of equine species.
As from the first of June 2017 equine species which are transported between these specific countries no longer need an inspection by an official veterinarian before their departure. Besides that they no longer need to have a health certificate with them during their transport.

The main reason the FAVV thought their initiative was appropriate is because of the similar high standard of health of these countries concerning animals. Furthermore there is no specific risk of health, which is the FAVV’s top priority. 

On the condition that the animals shall return to their land of departure when the transit has ended, this cancelation measure is related to the transportation of:
- Equine species who are ridden (or being guided) for sportive or recreational purposes (or are meant to).
- Equine species which take place in cultural demonstrations.
- Equine species which are destined for grazing or working activities, for a maximum term of 90 days.
- Equine species which are transported because of veterinary reasons (including actions focused on reproduction, in case these actions are carried in a veterinary clinic or by a veterinarian.

To benefit from this measure the Equidae must be identified according to the legislation. This means that they have to be in the possession of a passport which is in accordance with the European legislation and besides that they must be identified by a microchip (of which the barcode matches with the code in the passport). On top of that the animals need to be registered in the central database of the partner country where they usually stay.
The countries came also to an agreement regarding to the common interpretation of the types of transport of equine species which are not subject to the requirements of the legislation regarding to the transit of living horses. 

An equal memorandum of agreement applied to three of the four countries already. The range of transport has now expanded to France. This at the pleasure of the other countries and the FAVV.

A circular in multiple languages will be published by the FAVV as soon as possible.

Source: http://www.favv-afsca.fgov.be

 

EUAEL now on Equnews.nl

Together with our Belgian and Dutch Alliance Partners; Beelen Lawyers and Schelstraete Equine Lawyers, EUAEL now has its own Section on Equnews.nl. Placement on the Belgian version of the website (equines.be) will be affective shortly.

View the section on Equnews.nl (on the right, approximately in the middle of the webpage)

Gattiker Rechtsanwälte (EUAEL’s Swiss Alliance Partner) Joined The Law Firm Lanter Attorneys & Tax Advisors In Zurich, Switzerland

Gattiker Law was founded in 2013 by Dr. Monika Gattiker, who has specialised in healthcare and life sciences as well as in equine law for the last 15 years. This law boutique was recently on the list of 600 top law offices in Switzerland (top 20 in Healthcare and Life Sciences) of the Swiss Financial Magazine, based on a rating by 6500 lawyers, approx. 400 inhouse lawyers, the head legal counsels of the 500 biggest companies in Switzerland and clients of law offices.

The clients highly appreciated the specialized services of this law boutique. Nevertheless, Dr. Monika Gattiker considered it important to offer to her clients legal services beyond the narrow legal spectrum of the law boutique.

Therefore, Dr. Monika Gattiker decided to join the Law Firm LANTER Attorneys & Tax Advisors (founded 25 years ago). LANTER provides advice and litigates in many legal areas such as commercial law, contracts, tax, art, inheritance, construction, healthcare and life sciences, and equine law.

This new structure allows the Swiss EUAEL-Partner to serve the clients in a strong partnership with specialized lawyers and to cover their clients’ legal needs in many legal areas.

Read more about Lanter Attorneys & Tax Advisors

A Swiss buyer of a show jumper in Belgium triumphs in litigation procedure against a Belgian veterinarian

The in Switzerland located client of Beelen Advocaten in Leuven and Schelstraete Advocaten in the Netherlands had a pre-purchase vet check performed by a veterinarian located in Belgium. The horse in question was an expensive show jumper which was clinically and radiographically examined by the veterinarian. The vet check took place on June the 4th 2010 after which the veterinarian concluded: “Ok clinical and radio graphical examination. The horse is sound and there is a positive advice with regards to the horse performing as a sportshorse”.

Shortly after the delivery took place things went wrong. The buyer stated that the horse was suffering from podotrochleosis on the left front leg.

According to the buyer the vet should have discovered this during the pre-purchase vet check now that the radiographs which were made showed significant changes such as abnormalities around the navicular bone. The veterinarian wasn’t supposed to have classified the navicular bone as a normal class 2 risk but he should have classified it as a class 3 risk which signifies an increased risk.

The veterinarian was summoned to Court in Antwerp which rejected the claim of the buyer in 2014.

The buyer did not give up and turned to the Court of Appeal.

The Court of Appeal came to a judgement on March the 20th 2017. In this Court ruling the claims of the buyer were awarded such as the purchase price, pre-purchase vet check expenses, transport costs, treatment costs and a large amount of the stabling and litigation expenses. With regards to the purchase price the veterinarian had to compensate this minus 5% as this 5% represented the remaining value of the horse.

Conclusion: This outcome shows that it pays off to start a litigation procedure against veterinarians who did not perform the essential elements of a pre-purchase vet examination properly resulting in a wrong image for the buyer with regards to the risks. The veterinarian in question only received a compensation of 300,- euro for his work whilst the claimed damages all together were set at nearly 100.000,- euro.

Beelen Advocaten is located in Leuven and is the Belgian Alliance Partner of the European US Asian Equine Lawyers: “a new Alliance of the world’s leading Equine law firms.”

New Alliance partners in Germany and Sweden

European US Asian Equine Lawyers proudly presents two new Alliance Partners in Europe.

The German law firm; Berner Fischer & Partner is located in Verden (in the North of Germany) and was founded in 1912. Our new Swedish partner; Gulliksson has branches in Malmö, Lund, Stockholm,  Göteborg and Helsingborg.

Both partners are very solid and respectable law firms with lots of experience in international Equine law. We are very excited these law firms joined our alliance, and we are looking forward to a fruitful cooperation.

Klick here for more information about: Berner Fischer & Partner.

If you like to read more about Gulliksson.

 

Seizure of a horse on Criminal Law grounds remains in effect

In the Netherlands there is a possibility for the public prosecutor to seize goods which are related to criminal offences. Recently the public prosecutor has made use of this possibility and seized a horse. Three other parties complained against the seizure now that they claimed that they were the owner of that particular horse. The three complainants substantiated their claim of ownership by referring to the studbook registration papers of the horse, several statements of people involved and the limited evidential value of mentioning the ownership in the FEI passport.

The public prosecutor contradicted the statements of the complainants.

According to him there was no impartial evidence which proofs that the complainants are the owner of the horse. Apart from this the public prosecutor also believes that the fact that the horse was not stabled at the complainants premises was also of importance.

The Court of Oost-Brabant has looked into the complaint. According to the Court the complaint could be declared valid if it becomes clear that the complainants are the owner of the horse. However the Court believed that this was not the case. For the Court it was relevant that the horse was found at the premises of the persecuted and that the persecuted was mentioned as the owner on the FEI passport. The explanation which the complainants gave to why the persecuted was mentioned in the FEI passport was not enough for the Court to clear out any reasonable doubt that the complainants were the owner of the horse. The Court of Oost-Brabant therefore ruled that the complaint was unjustified and that the seizure of the horse remains unaffected.

In most cases the ownership of a horse does not result in any topic for discussion.

However, with the ruling from the Court of Oost-Brabant in the aforementioned case it once again becomes clear that in cases in which the ownership of a horse does leave a topic for discussion it isn’t that easy to make clear who the owner of the horse is. Unlike the register we have for real estate there is no register in the Netherlands in which the ownership of a horse has been determined. This means that the circumstances and the facts should lead to the answer to who the owner of the horse is. Examples of these circumstances could be a written purchase agreement which mentions who the buying party is, who pays the purchase price, who pays for the expenses of the horse,  the registered name in the passport and/or studbook registration papers and witnesses who can state by whom the horse has been purchased. The outcome all depends on a combination of the available evidence now that none of the aforementioned circumstances by itself forms a basis to proof that someone is the owner.

If you have any further questions with regards to this article or are you experiencing the same issues then please contact us through the following phonenumber: +31 (0) 13 511 44 20 or info@schelstraete.nl

This article has been written by Mr. B.E.J. Loeffen of Schelstraete Advocaten.

Pony with permanent tendon issues sold as a top class sport pony, Schelstraete (EUAEL Alliance Partner) reaches a very advantageous settlement

Schelstraete Advocaten (EUAEL Alliance Partner) has reached a very advantageous settlement in a case regarding a pony which due to frequent tendon issues is no longer suitable to serve as a sport pony. By reaching the settlement the client not only receives a refund of the purchase price but also compensation for nearly all the expenses which were made for the pony.

The case is as follows. The seller made an offer to the client for a Z-class sport pony. Prior to the purchase a vet concluded that the pony was suffering from a tendon issue. However, now that the seller convinced our client that the pony didn’t have any tendon issues in the past, and the pony must have stumbled when running around in the paddock, the client did purchase the pony in the end.

After the sale and purchase, the client discovered that the pony did suffer from tendon issues in the past.

Despite the fact that the seller stated that it was the clients own choice to purchase a pony with tendon issues and that such a pony comes with risks they did not dare to await the judgement from the Court. The defendant eventually offered to settle for an amount which was 3.000,- euro higher than the purchase price and they would then also take the pony back.

When the counter party showed that they were willing to settle Schelstraete Advocaten, after consulting her client, started the negotiations. This was a tough choice for the daughter of the client now that she became very attached to the pony but still wanted a pony which made it possible for her to compete at a higher level as well. Due to the favourable settlement the latter finally became possible for her.

 

Amendment to law for horse sales highlights the importance of equine law knowledge – Gulliksson (EUAEL Alliance Partner)

The Swedish Parliament’s Committee on Civil Affairs has decided that the Consumer Sales Act must be amended regarding the sale of live animals.
“Trading in animals is always a specialised area, but with horses, you have the professional sports angle – where one animal could ruin an entire career if it fails to meet expectations. On the other hand, sellers need to be able to confidently sell to individual buyers without running the risk of severe economic consequences. These transactions may entail substantial investments in a product subject to change. In other words, a significant amount of money with a high level of complexity and risk,” says Cecilia Tholse-Rogmark, one of the Gulliksson partners actively engaged in equine law.

The proposal was put forward by a Member of Parliament from the Moderate Party along with the Alliance parties in the Committee on Civil Affairs and a majority was secured for the proposed revision of the law. The aim is to safeguard the horses and other animals that risk harm during the interim period when the processes between buyer and seller are ongoing. In brief, the Consumer Sales Act, which applies to transactions between businesses or sole traders and individuals, poses a risk to the seller because it stipulates that a product can be returned if it shows evidence of a latent defect within three years of purchase. For the first six months after the purchase, the burden of proof is on the seller to prove that the defect did not exist before the purchase was made. The seller may be liable for the buyer’s costs if they fail to prove that the product was free of defects when sold. The Consumer Sales Act is mandatory, which means that it cannot be contracted away between the buyer and seller to the detriment of the buyer. The Sale of Goods Act applies to sales between two equal parties, as in business to business or individual to individual transactions, and has a limitation period of two years for latent defects, but the buyer must prove that the defect existed prior to the sale. In contrast to the Consumer Sales Act, the Sale of Goods Act is non-mandatory and thus may be contracted away.

“Personally, I have sometimes felt that transactions related to equestrian sports and businesses have not been taken seriously enough, which is surprising considering their size. I welcome the revision of the law on trading in live animals. In addition to the health and wellbeing of the animals, this business involves substantially high values, greater complexity and an increasing number of international transactions,” says Cecilia Tholse-Rogmark, who recommends always seeking legal expertise when buying or selling a horse of substantial value.

Gulliksson provides advice in all areas of business law, including a team with vast equine industry knowledge who can provide advice and specialised expertise in equine law.
Equine law is not only part of the civil law governing issues relating to sales and damages, but also it encompasses areas such as labour law, contract law, company law, mergers and acquisitions, property law and construction law. Gulliksson handles all types of business disputes, from those settled in general and administrative courts to authorities and arbitration tribunals. We represent clients who are in negotiations, court procedures, arbitration procedures, mediation, international dispute resolution and alternative dispute settlement.

“We follow the legislative changes in equine law with great interest and are experienced in processes which extend beyond Sweden’s borders.”

More background information about the proposal can be found in Swedish on the Swedish Horse Industry Foundation (HNS) website. The proposal will be voted on in the near future.

Source: Gulliksson (EUAEL ALLIANCE PARTNER SWEDEN)

Introduction – European US Asian Equine Lawyers

I am honoured and pleased that so many outstanding Law Offices showed their interest in our new Alliance:  EUROPEAN-US-ASIAN EQUINE LAWYERS.

In the last decade the Equine Industry has been growing ever since. Also the International horse deals keep increasing annually.

My firm, Schelstraete Equine Lawyers, focuses her practice on the International clients as a result of which we have been working with cross border Equine Law Specialized Lawyers to whom we have introduced many clients and files.

The time has come that these International developments are to be formalized by means of creating an Alliance Group which has been set up in the beginning of 2017. Through this Alliance Group of independent partners we provide the Equine Industry knowledge, understanding and experience.


The alliance group at the first annual meeting – The Netherlands

Thanks to this Alliance we will be able to provide our clients with a thorough advice. This is not only the case when it comes to the sale and purchase of horses, but also in the event that a dispute arises after the sale and purchase and a civil litigation procedure, often taking place abroad, seems inevitable. As an Alliance Group we will also be able to provide support to our Partners with specific knowledge related to other areas of expertise such as International collaborations, FEI disciplinary cases, liability claims and veterinarian matters and so on.

Amsterdam – 1st of March 2017
Luc Schelstraete

Court of Leuven has ruled in favour of client Beelen Advocaten (EUAEL Alliance Partner) in case of horse with behavioral issues

Recently the Court judged that the claim of a client of Beelen Advocaten (EUAEL Alliance Partner) is to be awarded since the horse in question was showing behavioural issues.

An amateur buyer purchased a show jumper from a professional dealer. After delivery the horse showed resistant behaviour during the jumps. The Court ruled that the professional dealer should have taken into account that the horse was bought by an amateur and that it was the duty of the dealer to deliver a horse with a certain character suitable for an amateur. Also the attitude which the dealer had shown after the sale, being that the dealer was unwilling to cooperate to find a solution despite the buyer’s several requests, were decisive when it came to determining that the claim to annul the agreement due to the horse’s behavioural issue should be awarded based on Consumer Protection Law. Such a ruling is unique now that the behavioural issues of horses is often categorized as a result of how the horse was handled after the purchase. The character of the horse is one of the essential elements which make a horse either suitable or unsuitable for the purpose for which it was purchased.

Essential was that the consumer informed the dealer of the defects shortly after the purchase so that it is evident that the behavioural defects must have been present prior to the delivery of the horse.

Mr. Van der Vaart and Schelstraete Equine Lawyers’s (EUAEL Alliance Partner) client: Mr. Hervas Ascencio ended their dispute with regards to the horses Let it be VDV and Cyrano VDV.

In August 2015 a dispute arose between Mr. Van der Vaart, the owner of the largest share in the horse Let it Be VDV and Cyrano VDV Z, and Schelstraete Equine Lawyers’s (EUAEL Alliance Partner) client: Mr. Hervas Ascencio, the trainer and co-owner of the horses with regards to – among others – the training and stabling of the horses. Several articles with regards to the dispute were published in the media. Mr. Van der Vaart and Mr. Hervas Ascencio hereby announce that they have settled their differences and ended all legal procedures.

The Court of Gelderland judged in favour of Schelstraete Equine Lawyers’s (EUAEL Alliance Partner) client on the 11th of January 2017

In 2013 a client of Schelstraete Equine Lawyers (EUAEL Alliance Partner)  sold a horse to a buyer based in the U.S.. After delivery to the buyer the horse showed resistant behaviour. The buyer therefore stated that the horse did not comply to the agreement.  Our client contested this after which the buyer summoned the seller to court. In Court the buyer claimed a refund of the purchase price and compensation for the damages she suffered.

After assessing the evidence the Court decided that the horse did comply to the agreement at the moment of purchase and that the horse did possess the qualities which the buyer may have expected based on the agreement and therefore Schelstraete Equine Lawyers’s client had fulfilled her obligations of the agreement.

The Court has dismissed the claims from the buyer and ruled that she was to compensate the costs of the procedure.

The Client was represented by Mr. L.M. Schelstraete and Mr. V. Zitman.

Legal Rights of a buyer against a seller of a horse in England that goes lame

Under English law horses are treated as being goods and the law relating to the sale of goods applies to them.

The law regards the purchase of a horse as being a purchase of an unknown quantity. As a general rule the principle “caveat emptor” (“let the buyer beware”) will apply and, therefore, the buyer will ordinarily be responsible for checking the quality and suitability of the horse before purchasing it.

As to whether the seller of a lame horse is liable will largely depend on the terms of the contract and what was said at the time when the contract was entered into.

Under English law an agreement for the sale of a horse will include both “express terms” (those terms which were specifically agreed between the parties) and “implied terms” (terms implied by law or trade conduct).

It will be an express term of sale that the seller will sell to the buyer the horse and that the buyer will pay the seller an agreed amount for the horse. Frequently nothing more may have been said by the parties at the time when the agreement was made. However the law may imply terms into the contract, for example, by the Sale and Supply of Goods Act 1994. For B2B contracts and The Consumer Rights Act 2015 for consumer agreements

The Sale and Supply of Goods Act 1994 implies into a contract for the sale of goods in a B2B agreement certain terms as to the quality of the goods being sold where such goods are sold in the course of a business. However, in the case of the sale of a horse because the purchase of an animal is an unknown quality a Court may be reluctant to imply terms as to the quality of the horse, unless a defect is known to the seller or is very obvious to the seller.

Where a seller sells animals in the course of a business and if an animal is sold for a particular purpose and that purpose is made known to the seller before the agreement was made and the buyer relied on the skill and judgment of the seller, then it will be an implied term of the agreement that the animal was reasonably fit for that purpose. A lame horse is not fit for the purpose of being ridden and, therefore, if the buyer made it clear that they wanted a horse for riding purposes the seller may be liable.

If prior to a contract being made the seller makes representations or statements as to the temperament or condition of the horse, the seller will only be bound by statements that amount to a term of the contract and will not be bound by mere “puffs”. As to whether a statement amounts to a contractual term depends upon the specific facts of each case. If a great deal of importance has been placed on the statement by the buyer at the time of the contract, or if the buyer relied on the skill and judgment of the seller then the seller is more likely to be bound by the statement.

If the seller breaches one of the terms of the contract. What rights does this give the buyer?

The terms of a contract are classed as “conditions” and “warranties”. A condition is a term, which goes to the very root of a contract. Where a condition is breached the contract is said to have been “repudiated” (brought to an end) and the other party will be allowed to discharge the contract and, if appropriate, bring a claim for damages. A warranty is a more minor term and if breached will enable the other party simply to bring a claim for damages.

Whether a term amounts to a condition or a warranty will depend upon the facts of a particular case.

Under The Sale and Supply of Goods Act 1994 terms relating to quality are regarded as being conditions where goods are sold in the course of a business.

A seller is not liable for any “patent” defects. A patent defect is one which is so obvious that the purchaser should have seen the defect himself before the agreement was made. If therefore, it was obvious that the horse was lame when it was purchased the seller will not be liable for the lameness.

What rights does a buyer have if the seller misrepresents the condition of the horse?

If the seller makes a false statement of fact in relation to the horse and that statement induced the buyer to enter into the contract, then the buyer may have a claim for damages against the seller for misrepresentation. In such circumstances a Court may order the “rescission” of the contract. Rescission has the effect of unmaking the contract and thereby putting the parties back to the position in which they were before the contract was entered into. The Court has the discretion to order rescission and there is no automatic entitlement to it.

Joint venture P.C. WOO and Zhonglun law firm

On Wednesday the 7th of December, Luc Schelstraete was invited to Zhenzen at the opening/ fusion meeting of the joint venture of Hong-Kong office P.C. WOO and China mainland office Zhonglun. Luc attended the interesting meeting which was part of the GLA (Global Legal Alliance).

 

Schelstraete Lawyers receives invitation for Global Legal Alliance Conference

Schelstraete Advocaten, The Dutch member of the Global Legal Alliance (GLA), will participate in the annual conference in Hong Kong and Shenzhen from the 5th to the 7th of December 2016.

GLA is a not-for-Profit Organisation which commits to bring together the best of legal service providers for some roundtable discussions on the development of international business. The theme of the annual conference is “the Development of International Legal Business Under the “One Belt, One Road” Initiative.

The GLA has members in China, US and Europe.

Schelstraete Equine Lawyers (EUAEL Alliance Partner) achieved settlement in a case regarding a non-conforming pony

Schelstraete Equine Lawyers (EUAEL Alliance Partner) has achieved a favourable settlement on behalf of her client in a case regarding a non-conforming pony. By reaching this settlement she did not only receive a refund of the purchase price, but they also received compensation for a part of the expenses which were made for the pony.

The case was as follows. The client purchased a pony which was presented as a pony suitable for the use in sports. However during the sale and purchase the veterinarian and the seller both concealed the fact that the pony received surgery on a club hoof (Bokhoef). The client consulted their veterinarian which came to the conclusion that the surgery performed was the cause of the ongoing tendon problems. Despite the defence of seller that the club hoof surgery was performed in the past and that it was unnecessary to notify the buyer now that the surgery was supposedly not the cause of the tendon problems, the seller did not seem too keen on starting litigation. Eventually the seller made an offer to collect the pony and to refund the purchase price and an additional €2.500,- for the pony’s expenses.

 

Court in The Hague has ruled in favour of Schelstraete Equine Lawyers’s (EUAEL Alliance Partner) client with regards to arguments on the ownership of several horses

On October the 18th 2016 the Court of The Hague came to a judgement with regards to an argument between the client of Schelstraete Equine Lawyers (EUAEL Alliance Partner) and his ex-partner on the ownership of several horses. The client entered a divorce procedure. One of the subjects in this procedure was the ownership of the horses. Both Schelstraete’s client as well as his ex-partner claimed that they were the owner of the horses. It was up to the Court of The Hague to make a decision in this matter.

By providing evidence as well as a detailed storyline on when, where and how he obtained the ownership of the horses, the Court decided that the client is the owner of the horses and ordered that the horses are to be released to the client. To read more about the judgement of the Court of The Hague click here.

Client was represented in this legal procedure by Mr. B.E.J. Loeffen

US client wins case from Belgian horse dealer concerning the horse’s character

Our client, a consumer buyer from the US, purchased a showjumper from a Belgian horse dealer. Soon after the horse arrived in the US it started to misbehave and refused to jump. Because of this our client decided to start a legal procedure in front of the Belgian Court in Leuven in order to return the horse to the seller and to have the purchase price refunded to her.

On 27 January 2016 the Belgian Court stated that it was clear that the horse refused to jump within only a couple of days after the horse was delivered to the client. As the Belgian civil code rules that when the buyer is a consumer it is (legally) assumed that – when the ‘malfunctions’ develop within 6 months from delivery – the horse already did not meet the expectations of the buyer before the purchase.

Under these circumstances it is up to the professional dealer to hand over proof that there were no problems with the horse at the moment of delivery. Because the seller didn’t had this proof the Belgian Court decided to dissolve the purchase agreement between parties and condemned the horse dealer to refund the purchase price of € 42.000,00 plus interest to our client. Furthermore, the horse dealer has also been condemned to pay damages of € 2.500,- and he has to pick up the horse in the US within 6 months. If he refuses to pick up the horse he will also be obliged to pay an additional amount of € 20,- per day of delay.

Our client was assisted by EEL and our Alliance Partner in Leuven (Belgium), Beelen Lawyers.

Press release regarding the case of the Ukrainian judges Mrs Irina Shulga, Mrs Maria Dzhumadzuk and the National Equestrian Federation of Ukraine against the FEI

luc-en-piotrMessrs. Luc Schelstraete and Piotr Wawrzyniak of European Equine Lawyers, with the head office in the Netherlands, represent Mrs Irina Shulga, Mrs Maria Dzhumadzuk and the National Federation of Ukraine in the appeal proceedings against the FEI before the FEI Tribunal in Lausanne. Just to remind our  Mrs Shulga and Mrs Dzhumadzuk have been accused by the FEI of nationalistic judging during the CDI in Lier in March 2016 and were on these grounds suspended by the FEI.

Recently, whilst the abovementioned appeal proceedings have still been pending and were still considered to be “confidential and private” an article on this matter was published on Eurodressage website under the title “Ukrainian Judges Dzhumadzhuk and Shulga Suspended for Nationalistic Judging at 2016 CDI Lier”. Eurodressage confirmed later to the representatives of the National Federation of Ukraine that the source of this information was the FEI itself.

In the best interest of the dressage sport and the equestrian community Messrs. Schelstraete and Wawrzyniak consider it necessary to react – on a personal note and title –  regarding the matter. They express their concerns regarding the fundamental legal principles like fair trail and equality of arms that in their personal opinion are being violated not only in these particular proceedings but more generally in any kind of proceedings before the FEI.

“After another publication (read: the aforementioned article on Eurodressage) related to the matter we feel we need to defend our Client’s good name and reputation towards the equestrian community and public. Until now we have stuck to the procedural rules within the FEI and the requested confidentiality of the appeal proceedings but we must fairly state that the procedural rules have very little to do with modern fair trail principle. They are rather of autocratic nature and more importantly the FEI is not following them either see its press releases related to the matter. The procedures of the FEI and the material provisions of which the FEI takes disciplinary measures (not only when it comes to the suspension of our Clients that we are appealing from) are in our opinion extremely vague. We miss transparency on the decision making process (who does what within the FEI, no checks and balances and no trias politica). 

We note that the procedural rules are obscure. Paraphrasing Napoleon’s view on the constitution we could state that they are short and obscure so that the FEI can interpret them in any way they deem to find necessary. This is also what the FEI seems to do. The FEI acknowledges for instance that there is no definition of “nationalistic judging”. Yet Our Clients have been accused hereof and suspended on these grounds. According to the FEI they should have understood they were acting in any nationalistic way. The FEI investigated such and established – as they stated – proof of the nationalistic judging prior to informing Our Clients about those accusations. Later, they told Our Clients they were to defend themselves but none of the so-called evidence was presented to them until the FEI filed its response in appeal. They were found guilty before they were accused of the nationalistic judging. We also note that there were other reports and complaints about alleged “nationalistic judging” in the recent months. Some of the persons / institutions filing them did not receive any response of the FEI. The FEI seems to act in an arbitrary manner here.

The fair trial, the presumption of innocence, the equality of arms and the nulla poena sine lege principle on which modern legal systems of criminal and disciplinary proceedings are based these days do not seem to be applicable within the FEI. Since the CDI in Lier Our Clients have been media trialed without that the case has been decided on the merits. Already on 22 March 2016 the FEI judged that Our Clients were guilty of nationalistic judging. Officially, as late as 1 April 2016 they were addressed to react to the allegations of the FEI. Referring to the aforementioned FEI press communique of 22 March 2016: “This [Our Client’s judging] was a clear example of nationalistic judging and the FEI takes this very seriously”, FEI Secretary General Sabrina Ibáñez said. Opposite to modern legal systems Our Clients were found and have been considered guilty of nationalistic judging until they will prove otherwise. 

The FEI further tries to refuse Our Clients basic human rights during the process in terms of reacting to the FEI appeals, hearing of witnesses and the nature of the FEI Tribunal hearing itself. We requested a public hearing so that the press could attend too. Particularly in this case, the FEI refused to disclose the evidence regarding the alleged nationalistic judging arising of the throughout investigation to our clients. 

We would like though to appreciate the position of the FEI Tribunal that where is can do its best to take the fair trail principles into account within this very limited and obscure procedural framework. The FEI has so far acknowledged our Client’s legal interest in receiving the evidence of FEI, hearing their witnesses and reacting to the FEI appeal pleadings. The FEI Tribunal has still to decide on our request regarding the public hearing. 

Whatever the outcome of the appeal proceedings shall be, we call on the FEI and all its stakeholders to change and amend its procedural rules, judging system of the dressage events, its disciplinary rules and to update them in accordance with the 21st century standards. The current status quo will only further damage the image and the reputation of the equestrian sports and more particular dressage.

Schelstraete Equine Lawyers (EUAEL Alliance Partner) succesfully claims compensation in an indemnification procedure.

A client of Schelstraete Equine Lawyers (EUAEL Alliance Partner) bought a trailer back in 2013 from a North Irish corporation and resold it to a Macedonian corporation. When the Macedonian buyer wanted to cross the Hungarian-Romanian border the trailer was confiscated now that it was reported stolen at Interpol. The Macedonian buyer held the client liable, which in turn held the North Irish corporation liable from whom the client had bought the trailer from initially.

The Court decided now that the Macedonian buyer did not obtain ownership of the trailer, she may claim a refund from the client of the paid purchase price. Schelstraete’s client has successfully passed this claim onto the North Irish corporation which now has been obligated to refund the purchase price, compensation of the damages and compensation of the court costs.

The client has been represented by Mr. L.M. Schelstraete and Mr. B.E.J. Loeffen of Schelstraete Equine Lawyers (EUAEL Alliance Partner)

Schelstraete Equine Lawyers’s (EUAEL Alliance Partner) client triumphs at the Court of Zeeland-West-Brabant

On September the 21st the Court of Zeeland-West-Brabant decided that the plaintiff has been declared inadmissible with regards to the claims against Schelstraete Equine Lawyers (EUAEL Alliance Partner) clients.

After the client has been summoned to Court, they submitted a written defence against the claim. One of the crucial statements was that there was no contractual relation between the plaintiff and the client. Therefore the plaintiff, which claimed that there was a Purchase Agreement, had no grounds to support its claim. The plaintiff did not submit a defence against this statement and has withdrawn its claim shortly before the day that the parties needed to appear at Court. The Court judge decided in favour of Schelstraete Lawyers clients and decided that the plaintiff is to compensate the court costs.

With the help of Mr. L.M. Schelstraete and Mr. B.E.J. Loeffen of Schelstraete Equine Lawyers (EUAEL Alliance Partner) the clients managed to submit a successful defense

Court of Middelburg rejects the claim of counter party of Schelstraete Equine Lawyers’s (EUAEL Alliance Partner) client regarding the stabling and training of the horse

A German client of Schelstraete Equine Lawyers (EUAEL Alliance Partner) faced litigation initiated by a Dutch dressage stable that claimed payments regarding the stabling and training of a horse that the German client bought from the Dutch dressage stable. Shortly after the delivery the German client brought the horse back to the stable because the horse was not in conformity with the agreement. The Court of Middelburg rejected the claim of the Dutch dressage stable. According to the judge the Dutch dressage stable did not prove that there was an agreement between the parties regarding the stabling and training of the horse.

Court of Limburg rules in favour of client Schelstraete Equine Lawyers (EUAEL Alliance Partner)

On the 17th of August 2016 the Court of Limburg has made a decision in a case which was brought before Court by a client of Schelstraete Equine Lawyers (EUAEL Alliance Partner). In this case the client purchased a horse, which shortly after the purchase showed dangerous behaviour when the horse was ridden. At a veterinarian examination it appeared that there were arthritic changes in the neck.

Now that the seller was unwilling to take back the horse, the client has brought the seller before the Court of Limburg.

The judge decided in an interlocutory judgment that, taking into account the veterinary complications of the horse, there is a presumption that the horse was already non-conform at the moment of delivery. After the hearing of several witnesses it became clear that the horse was known for arching its back when mounted and would move a few passes forward. The client explicitly mentioned that due to her physical limitations she was interested in finding a horse which would be easy to ride and calm.

The seller has been obligated to refund the purchase price and to compensate the client for the damages suffered.

The client was represented by Mr. B.E.J. Loeffen of Schelstraete Equine Lawyers (EUAEL Alliance Partner).

Client of Schelstraete Advocaten wins its case at the KWPN Arbitration Committee

On August 1st 2016 the Arbitration Committee of the KWPN has ruled in favour of Schelstraete Equine Lawyers (EUAEL Alliance Partner). In this case the client of Schelstraete sold a horse. Several months after the sale of the horse the buyer turned to the seller claiming that there was a hidden shortcoming now that the horse is lame. According to the buyer the horse is suffering from arthritis and a tendon injury.

The client has disputed the statements of the buyer since the horse always performed well. At the veterinary examination which was held at the moment of purchase the horse never showed any signs of lameness nor did it show signs of arthritis or a tendon injury. Furthermore the veterinarians never managed to antedate the arthritis and tendon injury to the moment that the buyer had purchased the horse from the client. Eventually it became evident that there was no proof that the horse was suffering from arthritis and/or a tendon injury at the moment of delivery so that the Court assumed that the horse was free from any hidden shortcomings at that time.

The Arbitration Committee ruled in favour of Schelstraete’s client and rejected the buyer’s claim. The client was represented in the procedure by Mr. B.E.J. Loeffen of Schelstraete Equine Lawyers (EUAEL Alliance Partner).

Claim of counter party was rejected due to the wrong party being summoned to court

In a legal procedure at the Court of Midden-Nederland concerning the sale of a horse Schelstraete has successfully pleaded that her client was not the selling party. On August the 3th 2016 the Court decided to reject the claim of the counterparty.

Client was represented in this procedure by Mr. Schelstraete and Mr. Zitman.

Read more about this case on rechtspraak.nl (only available in Dutch)

Claim of counter party was rejected due to the wrong party- Schelstraete Equine Lawyers’s (EUAEL Alliance Partner) client- being summoned to court

In a legal procedure at the Court of Midden-Nederland concerning the sale of a horse Schelstraete Equine Lawyers (EUAEL Alliance Partner) has successfully pleaded that her client was not the selling party. On August the 3th 2016 the Court decided to reject the claim of the counterparty.

Client was represented in this procedure by Mr. Schelstraete and Mr. Zitman of Schelstraete Equine Lawyers (EUAEL Alliance Partner).

Read more about this case, on rechtspraak.nl (dutch only)

Contractor violates duty to warn its customer client of Schelstraete Equine Lawyers’s (EUAEL Alliance Partner), during the construction of an equestrian surface (continuation)

On January the 29th 2016 AN ARTICLE was published on Schelstraete’s website regarding a legal procedure at the Court of Oost-Brabant on the construction of an Equestrian Surface. In this matter  the Court decided on the 13th of January 2016 in favour of Schelstraete Equine Lawyers’s (EUAEL Alliance Partner) client that the contractor violated its duty to warn its customer.

Such violation results in an imputable shortcoming and therefore the contractor is bound to compensate the customer for the damages. Parties have continued litigation on this matter.

In a court decision dating 3th of August 2016 the Court has determined the damages and the contractor has been obliged to reimburse these damages.

Client was represented in this procedure by Mr. Schelstraete and Mr. Zitman of Schelstraete Equine Lawyers’s (EUAEL Alliance Partner).

Read more about this case on rechtspraak.nl (dutch only)

Article Horse International: Consumer protection in europe

LEGAL  AND VETERINARY JOURNAL: CONSUMER PROTECTION IN EUROPE

Mr. L.M. Schelstraete: Active in the fields of company law and equine law.  Within the equine law practice, Luc Schelstraete provides services to Dutch yet often also foreign equine businesses, riders, horse owners and equine authorities.

In this edition of Horse International we would like to discuss an interesting case of our client in Belgium, and recent case law of the European Court of Justice (the “ECJ”) that introduces, as it seems now, new possibilities for consumer buyers within the European Union. This case law is also applicable to agreements regarding horses and may lead to a significant relief of the burden of proof on the consumer’s side.

THE BELGIAN CASE OF MRS X

The EEL client from the USA, Mrs X, purchased a showjumper from a professional horse dealer in Belgium for an amount of more than EUR 40.000,-. Mrs X is an amateur rider and it was agreed between the parties that the horse had to be suitable for showjumping in amateur classes and for amateur riders. Further it was agreed between the parties that the horse that was a stallion would be castrated prior to the delivery and the transfer of ownership to Mrs X. The seller arranged for castration in a veterinary clinic in Belgium. Afterwards he collected the horse and sent it to the US. The horse arrived at Mrs X who established that the horse could not be ridden, became dangerous and was simply not rideable for an amateur. Mrs X asked a professional

rider in the US to try on the horse too. The professional rider experienced the same difficulties with the horse as Mrs X, the horse was unpredictable and dangerous for the rider. Mrs X was informing the seller accordingly about the established problem with the horse. Such appeared from among others Facebook messages exchanged between the parties. She stated that the horse would stop before an obstacle, also when ridden by a professional rider. The seller informed Mrs X that he would come to the US and try the horse himself and informed her that the reported problem would probably have something to do with the castration, the new rider, the new stables and  temperature. This all would be simply too much for the horse.

Afterwards Mrs X summoned the seller on many occasions as she could not use the horse for the intended goal of the purchase (the so-called non-conformity) and that the horse was dangerous and unpredictable.

CONSIDERATIONS OF THE COURT

The Court in Leuven considered in this case as follows. Reciting the EU Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees the  Court considered that according to the consumer law:

(1.) the seller must deliver goods to the consumer which are in conformity with the contract of sale; and

(2). Consumer goods are presumed to be in conformity with the contract if they:

(a) comply with the description given by the seller and possess the

qualities of the goods which the seller has held out to the consumer as a sample or model;

(b) are fit for any particular purpose for which the consumer requires them and which he made known to the seller at the time of conclusion of the contract and which the seller has accepted;

(c) are fit for the purposes for which goods of the same type are normally used;

(d) show the quality and performance which are normal in goods of the same type and which the consumer can reasonably expect, given the nature of the goods and taking into account any public statements on the specific characteristics of the goods made about them by the seller, the producer or his representative, particularly in advertising or on labelling.

The abovementioned considerations of the Court refer of course to goods and things. Animals like horses are not goods / things in terms of law and but are rather treated under the continental legal systems as things sui generis. The civil law provisions related to “goods” and “things” are however applicable on base of analogy to animals.

FACTS ESTABLISHED

On the abovementioned assumptions and considerations the Court investigated the case. Based on the correspondence the Court considered that it was agreed between the parties that the horse was meant for showjumping in the amateur classes. Further, the Court established that even though the seller said he would come to the US to visit Mrs X and to try the horse, he in the end failed to do so. The Court considered also the statement of the trainer in the US in whose perception the horse was unsuitable for the intended goal of the purchase agreement as descried above. It was also established that shortly after the arrival at Mrs X farm, the horse stopped jumping even the smallest obstacles. Even though, the Court could not establish based on the evidence in the case who initiated the castration, it considered that it was the seller who arranged for that, who brought the horse to the clinics and who subsequently collected the horse from there and sent it to the US. It was also established that the seller himself sent the horse directly afterwards to the US. Later in the proceedings, he exhibited a statement of veterinarian who adopted the point of view that horses after castration require at least 14 days of rest in the box after the surgery.

PRESUMPTION OF NON- CONFORMITY

Under the EU regime, there is a presumption of non-conformity if defect had materialized within 6 months after the delivery to the consumer. In other words the defects is deemed to be pre-existent to the purchase agreement. The seller can then try to agitate that such was not the case and that the defect is caused by the buyer, but in such situation he really needs to prove otherwise. In our case, the seller stated that the defect could have possible been caused by the castration of the horse. As said,

the Court could not establish who introduced the idea of castration, but given the established facts the Court stated the seller cannot defend him with the argument that the castration would cause the horse’s sudden change of behavior. In the end, the seller himself stated in the proceedings that after castration the horse requires rest. Something he failed to do himself.

Even if, what – nota bene – has not been established by the Court, Mrs X. would push towards a fast shipment to the US, he should have persuaded her to wait due to the horse’s best will. Such he did not do. The Court granted the claim of Mrs X and annulled the purchase agreement between the seller and Mrs X, awarding an additional amount of damages related to stalling, training and other further costs incurred by her.

RELEVANCE OF THE CASE Normally, in cases where buyers are confronted with similar problems (defects) of the horse like Mrs X was confronted with, the Courts are not easily granting the claims due to the fact that this type of defect is described as the so-called “character/ behavior problem”. It is further acknowledged that such problems can arise spontaneously and can be caused by various external circumstances. Most probably, the Court considered the seller’s conduct decisive as the seller knowing the risks of castration failed to prevent them from happening and against his better knowledge sent the horse to the US directly after the surgery and in this sense acted frivolously. Again, the circumstances of the specific

case turn to be decisive even though that at first sight Mrs X’s case could be considered very difficult.

FURTHER HELP TO CONSUMERS FROM THE EUROPEAN COURT OF JUSTICE

In the recent case (C-497/13 Froukje Faber v Autobedrijf Hazet Ochten BV) decided by the ECJ, the position

of consumers in terms of their burden of proof related to non-conformity and the described presumption of

non-conformity has been further relaxed.

The ECJ set the following conditions:

i.) the consumer must allege and furnish evidence that the goods sold are not in conformity with the contract in so far as, for example, they do not have the qualities agreed on or even are not fit for the purpose which that type of goods is normally expected to have;

ii.) the consumer is required to prove only that the lack of conformity exists; and

iii.) the consumer must prove that the lack of conformity in question became apparent, that is to say, became physically apparent, within six months of delivery of the goods. He is not required to prove the cause of that lack of conformity or to establish that its origin is attributable to the seller.  Once he has established those facts, the consumer is relieved of the obligation of establishing that the lack of conformity existed at the time of delivery of the goods. The ECJ stated that occurrence of that lack of conformity within the short period of six months makes it possible to assume that, although it became apparent only after the delivery of the goods, it already existed ‘in embryonic form’ in those goods at the time of delivery. The professional seller needs to provide, as the case may be, evidence that the lack of conformity did not exist at the time of delivery of the goods, by establishing that the cause or origin of that lack of conformity is to be found in an act or omission which took place after that delivery. It is further understood that the seller must deliver the evidence of the opposite and not just state that all problems are caused by the buyer. From our point of view this case law gives consumers in horse deals new legal also when it comes to difficult problems like character problems.

Piotr M. Wawrzyniak practicing lawyer at Schelstraete Business Lawyers and European US ASIAN Equine Lawyers in Oisterwijk and Amsterdam, the Netherlands.

If you have any questions and/or comments after reading this article, we would be happy to hear from you. You can also contact us for all equine-law related questions or matters. Please contact us via info@europeanequinelawyers.com or by telephone +31-(0)135114420.

Download the full pdf.

consumer-protection-in-europe-pdf

Article Horse International: Chinese Equestrianism leaping forward

Mr. L.M. Schelstraete

Active in the fields of company law and equine law. Within the equine law practice, Luc Schelstraete provides services to Dutch yet often also foreign equine businesses, riders, horse owners and equine authorities.

Mr Luc Schelstraete and Mr Piotr Wawrzyniak of European-US Asian Equine Lawyers attended the first Sino-European Exchange Seminar on equine industry that was organized on 28 April 2016 in Shanghai, China, and would like to report to our readership on its outcome. Usually in this column we write about legal and veterinary cases that we have been dealing with. In today’s column we will though present our readership with an article that goes beyond that. Our article refers to the aforementioned seminar. The seminar was organized parallel to and under the auspices the Longines Global Champions Tour. The seminar aimed to introduce top-level resources and experience in the equestrian industry from Europe through international equestrian events so as to establish a platform of exchange and interaction. The seminar gathered many interesting speakers and was titled “leaping forward”, a title that is very applicable to what China manifested in various fields during the recent decades. The Chinese wish to learn from the experiences of the well-established equine nations in Europe like among others the Dutch and the Germans. The seminar was organized by Cross China New Media (Beijing) Co. Ltd and hosted by Shanghai Juss Event Management Co. Ltd known among others for organizing of the Formula 1 UBS Chinese Grand Prix and the Global Champions Tour in Shanghai.

GROWING INTEREST

The seminar showed the growing interest of the Chinese in the equine business and sport. The equestrianism has been developing very fast in the recent years in China. China reported recently a growth of 30 percent when it comes to importing sport horses into China and this growth shall be sustainable. Not without a reason, jockey clubs are being established in many cities across the  ainland China. This growing interest was at the same time illustrated by the immense popularity and publicity that was given to the Global Champions Tour in Shanghai. Literally, the whole city of Shanghai lived with the event prior to the weekend on which the GCT event took place. The GCT event was held at the beautiful venue of China Art Museum, one of the landmarks of Shanghai, and attended a lot of visitors from all over China. Equestrianism is associated with luxury lifestyle in China which explains why one of the co-sponsors of the Longines Global Champions Tour in Shanghai was Noblesse, the leading luxury lifestyle magazine in China.

QUARANTINE ZONE

The seminar began with explanation of the Chinese entry and exit policies and the quarantine of sport horses in China that was given by Mr Liu Jinlong, deputy director of animal and plant quarantine division of the General Administration of Quality, Supervision, Inspection and Quarantine of the People’s Republic of China. In this respect it should be noted that the GCT event is very unique for China. The cooperation between the Chinese authorities and the GCT led to creating a special quarantine zone in Shanghai where the horses competing in the GCT were stalled and where any risks related to contacts of with the local horse population were prevented. Such allowed the horses to enter the mainland China prior to the GCT event and to leave such directly after the competition so that they could travel onwards to other GCT events held in other places all over the world. Summarizing the presentations of Mr Yao Congbin, the official veterinarian of the GCT event in Shanghai, and Mr Sin Bin, Deputy Director of Shanghai Animal Husbandry and Veterinary Office, it can be fairly stated that the cooperation between the organization of the event and the Chinese authorities is one of the key success factors of the GCT event in Shanghai. On his turn Mr Martin Atock of Peden Bloodstock explained the complicated logistic process behind the organization of the GCT events around the world and various factors (like for instance time zones, veterinary rules and schedules) that must be taken into account to ensure that the horses are delivered to the venues of the GCT timely and in top condition in order to compete.

GOOD INFRASTRUCTURE 

In his speech Mr Jan Tops, the founding father of the GCT, enthused the attendants of the conference talking about the basis of the equestrian sport in Europe. Mr Tops in his speech underlined the importance of a good infrastructure and the starting development from the very basis. According to Mr Tops the importance of the local pony clubs and riding school (as known in continental Europe, more in specific in the Netherlands and Germany) should not be underestimated. Developing the interest for the sport among children, letting them to enjoy themselves and to have fun while riding horses is crucial to achieve later successes in the sport. Hard work, dedication and discipline are important factors for a later equestrian career. Mr Tops also underlined the egalitarianism of the equine sport. In the end the equestrian sport is one of the few that lets men and women directly in the same classes.

EUROPEAN CONTINENTAL LAWS

Mr Luc Schelstraete and Mr Piotr Wawrzyniak set out the risk management of doing equine business in Europe discussing trade related issues such as pre-purchase examination, commission, the position of the trainer, disclosure of the seller and the conclusion of the purchase agreement. It must be noted in this respect that due to cultural and legal difference it may be

sometimes quite hard for the Chinese to understand the equine business in Europe, whereby as far as sport horses are concerned, Europe remains the main exporter of them to China. Additionally, the Chinese veterinary regulations make it in many cases – according to the Chinese attendants of the seminar – very difficult if not impossible to return horses back to Europe in the event of any defect or non-conformity of the horse in question. Mr Luc Schelstraete pointed out in his presentation that a possible solution for a such legal and factual problem could be for instance a claim aiming for the reduction of the purchase price or claiming damages. Next to the annulment of the purchase agreement these remedies are also available for a buyer under the European continental laws. Furthermore, Mr Luc Schelstraete pointed out in his presentation that it might be worth considering for the Chinese owners and investors to incorporate a company in Europe in order not only to mitigate the reported problems but also to have the horses bred, stabled, trained and competed in Europe. In this respect also the incorporation process of a legal entity and the VAT related issues were discussed.

FURTHER DEVELOPMENT

Mr Huang Zuping, the former coach of the national team and the competitor of the 2008 Olympic Games together Mr Chang Wei, former Secretary General of the Chinese Equestrian Association, explained the current standing of the equestrian sport in China and underlined the need for creating a pro-found basis for the further development of the sport in China and in order to allow Chinese riders to compete successfully at the very top level in international events. In this respect China needs to sustain

the growth, to invest in riding schools, clubs and to attract know-how by for instance increasing the number of European trainers and/or by sending Chinese riders for education in Europe.

LEAP FORWARD

The seminar ended with a panel discussion in which Mr Fred van Lierop, the GCT event director, Mr Chang Wei, Mr Huang Zuping and Mr Luc Schelstraete answered various questions of the attendants and discussed their experiences in the business. Concluding China is making a leap forward in the equestrian business and sport. With new jockey clubs, new venues and equestrian events across the country it is only a matter of time that China will belong to the top of the equestrian nations worldwide. The seminar is to be followed by the second edition next year during the GCT event and we are looking forward to learn and to see how much progress China will make within a year from now.

Piotr M. Wawrzyniak Practicing lawyer at Schelstraete Advocaten in Tilburg (Netherlands)

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Schelstraete Equine Lawyers (EUAEL Alliance Partner) successfully argues dispute about consumer sale

On July 16, 2014, the Cantonal Court of Limburg ruled on an interesting case concerning a consumer sale. In this case a professional rider sued  a trading barn because they supposedly sold and delivered a horse that showed defects. In addition, the rider stated that he bought the horse as a consumer and therefore could invoke consumer protection. The consumer protection includes, that if a defect is detected within six months after delivery, the law presumes that the defect has already been there, and it is to the seller to show the contrary.

The trading barn was represented by Mr. L. M. Schelstraete and Mr. V. Zitman of Schelstraete Equine Lawyers (EUAEL Alliance Partner). They claimed that insofar a purchase agreement had been established between the trading stable and the rider, the rider purchased the horse for professional purposes and therefore it could not be a consumer sale.

That the rider purchased the horse for professional purposes was fully clear according to Mr.  Schelstraete and Mr. Zitman. They came to this conclusion because of the following facts: The rider frequently participates in international competitions, and he also works for a company which is actively engaged in the equestrian sport and runs an equestrian center, and which company also sponsors the horse.

The Court followed the arguments of Mrs. Schelstraete and Zitman and ruled that the purchase agreement cannot be regarded as a consumer sale. This decision is especially interesting because professional riders have been regarded consumers  by Courts so far. Due to the fact that this was not a consumer sale, it is not only that the rider cannot invoke consumer protection, but also that the Cantonal Court is not competent to judge upon the case.The Cantonal Courts has therefore declined jurisdiction and referred the case to another Court, where litigation will continue.

Client of Schelstraete Equine Lawyers (EUAEL Alliance Partner) triumph at the Court in Alkmaar

In September 2013 two clients of Schelstraete Equine Lawyers (EUAEL Alliance Partner) sold a horse. Several months after the sale the buyer notified the clients that the horse which was sold was suffering from thrombosis at the moment of delivery which would make the horse unsuitable for jumping competitions. Our cliënts disputed the aforementioned statement. Now that the purchase was done by a consumer the case was subject to Consumer Law. Due to the foregoing the clients were bearing the burden of proof that they did have delivered a healthy horse.

The Court of Alkmaar required an expert’s report to clarify the facts on the thrombosis. The expert has reviewed the veterinary file of the horse and concluded that the propability of the presence of thrombosis at the moment of delivery to the buyer was only 5%. The Court of Alkmaar considered this propability to be highly unlikely and therefor the Court assumed that the horse was healthy at the moment of delivery. The Court decided on the 13th of July 2016 that the claim of the plaintiff was rejected and that our client’s expenses for the legal procedure are to be compensated.

Clients were represented by mr. Loeffen and mr. Schelstraete of Schelstraete Equine Lawyers (EUAEL Alliance Partner).

Read more about this case (dutch only)

Schelstraete Equine Lawyers’s (EUAEL Alliance Partner) cliënts triumphs in a preliminary injunction regarding embryo’s

Schelstraete Equine Lawyers (EUAEL Alliance Partner) has succesfully represented two buyers of embryo’s in a preliminary injunction against the seller at the Court of Zeeland-West-Brabant.

The reason behind the procedure was that the buyers already paid substantial amounts for the embryo’s without receiving all embryo’s.

According to the decision of the judge the seller is required to fulfil her obligations from the agreement. In addition to this the seller is, unless written approval is provided by the buyer, probihited to provide herself and/or third parties a transfer of an embryo from a mare and/or collecting eggs through an ICSI-procedure and/or perform other activities which will prevent that the buyers will receive the embryo’s. This restriction remains until the buyers have been provided with embryo’s which will produce live foals. A breach of this restriction results in payment of a penalty.

The legal judgement can be read at Rechtspraak.nl (click HERE – dutch only) (http://deeplink.rechtspraak.nl/uitspraak?id=ECLI:NL:RBZWB:2016:4627).

The buyers were represented by Mr. V. Zitman of Schelstraete Equine Lawyers (EUAEL Alliance Partner).

Client of Schelstraete Equine Lawyers (EUAEL Alliance Partner), a Dutch seller of three expensive dressage horses, wins again the lawsuit against a foreign buyer.

In a dispute regarding a purchase of three dressage horses (value 1,8 Million euros) the Court of Den Bosch issued on1 June 2016 its final decision dismissing the buyer’s claims. It must be noted that prior to this law suit the foreign buyer and its stakeholder, a internationally well-known dressage amazon, initiated several proceedings in the Netherlands that all were dismissed.

The Court agreed with Schelstraete Equine Lawyers (EUAEL Alliance Partner) that the United Nations Convention on Contracts for the International Sale of Goods (Vienna, 1980) (CISG) was applicable to the respective purchase agreements and the seller is not liable for any lack of conformity of the goods if at the time of the conclusion of the contract the buyer knew or could not have been unaware of such lack of conformity. A  later established  anomaly does not form a defect as such or a fundamental breach of the contract on the seller’s side that would justify the annulment of the purchase agreement. Such has not been established in the case. This judgment is quite interesting as the Court clearly outlined the criteria of the applicability of the CISG as well as the criteria that must be taken into account while notifying the seller with regards of the alleged non-conformity.

EUAEL advises its clients to check in the international context whether the CISG can be applicable to an agreement. Even if parties did not choose the CISG to be applicable to the agreement, the treaty can still be applicable. The applicability of the CISG can significantly influence the legal positions of the parties compared to the internal Dutch law. Client was assisted in this matter by Messrs. Schelstraete and Wawrzyniak of Schelstraete Equine Lawyers (EUAEL Alliance Partner).

Counterparty pays a large sum of money to client of Schelstraete Equine Lawyers (EUAEL Alliance Partner)

After the purchase of a horse at a Polish auction for Arabian horses in august 2015, client has transported the horse to The Netherlands. Upon arrival the horse showed a shortcoming (navicular disease) making it useless for its initial purpose (show-horse).

Client requested legal assistance from Mrs Loeffen, attorney-at-law at Schelstraete Equine Lawyers (EUAEL Alliance Partner). Mrs Loeffen has ordered the organization of the Polish auction to collect the horse from the client and to refund the purchase price and compensate any additional costs made.

The Polish auction responded to the summons, by paying back the purchase price and the claimed damages.

Counterparty pays a large sum of money to client of Schelstraete Equine Lawyers (EUAEL Alliance Partner)

After the purchase of a horse at a Polish auction for Arabian horses in august 2015, client has transported the horse to The Netherlands. Upon arrival the horse showed a shortcoming (navicular disease) making it useless for its initial purpose (show-horse).

Client requested legal assistance from Mrs Loeffen, attorney-at-law at Schelstraete Advocaten. Mrs Loeffen has ordered the organization of the Polish auction to collect the horse from the client and to refund the purchase price and compensate any additional costs made.

The Polish auction responded to the summons, by paying back the purchase price and the claimed damages.

Disputes Committee Financial Services awards client Schelstraete Equine Lawyers (EUAEL Alliance Partner) with compensation of its damages

On October the 9th 2012 a horsetrailer owned by Schelstraete Equine Lawyers’s (EUAEL Alliance Partner) client was stolen. The client submitted a request at the insurance company for compensation of the damages suffered, which the insurance company rejected.

Legally supported by Mr. B.E.J. Loeffen of Schelstraete Advocaten, the client filed a complaint at the Disputes Committee Financial Services (Geschillencommissie Financiële Dienstverlening). On the 10th of March 2016, the Disputes Committee decided that it was sufficiently proven that the client did follow the requirements set by the insurance company by locking the trailer and that it should be considered that the trailer was locked when the thievery took place. Now that the insurance company also failed to provide evidence with regards to impairment of its reasonable interests, there are no reasons for the Dispute Committee to withhold the compensation of the damages suffered by the client.

The Disputes Committee decided that the insurance company is to pay an amount of €8.888,- to the client.

Client has been supported in this legal matter by Mr. B.E.J. Loeffen of Schelstraete Equine Lawyers (EUAEL Alliance Partner).

Client Schelstraete Equine Lawyers (EUAEL Alliance Partner) wins dispute regarding the Court’s competence for a Dutch buyer who purchased a horse from Northern Ireland

Schelstraete Equine Lawyers (EUAEL Alliance Partner) represents a Dutch buyer in a dispute with an Irish seller regarding the purchase of an eventing horse. In a judicial procedure before the Court of Gelderland the seller argued that the case should not be judged by a Dutch Court but by a Court in Northern Ireland. This because he has his residence in Northern Ireland. Schelstraete argued that the Dutch Court is competent to judge over the case because pursuant to the purchase agreement the horse was delivered in the Netherlands. By decision of 11 May 2016 the Court followed the argumentation of Schelstraete and declared itself competent.The procedure will be continued in the Netherlands.

2016 Shanghai Longines Global Champions Tour – Sino Europe Equine Industry Exchange Seminar

IMG_4522

On thursday the 28th of April, Mr. Luc Schelstraete and Mr. Piotr Wawrzyniak participated in the ‘2016 Shanghai Longines Global Champions Tour – Sino Europe Equine Industry Exchange Seminar’ in Shanghai China. Both equine lawyers were invited to speak about the do’s and dont’s of doing equine business in Europe. The conference was very successful and the input of both lawyers was highly appreciated by those present.

 

 

 


Schelstraete Equine Lawyers (EUAEL Alliance Partner) has succesfully protested a request for a witness hearing in the U.S.

In a legal procedure at the court of Gelderland, Schelstraete Equine Lawyers (EUAEL Alliance Partner) is representing a Dutch equestrian firm in a dispute concerning the sale of a horse to a buyer located in the United States. According to the buyer the horse would not live up to the expectations which the buyer may have expected based on the purchase agreement and claims that at the moment of delivery there would have been a lack of character in the horse to fulfill it’s intended purpose.

Schelstraete’s cliënt contests the foregoing and has involved several witnessess in the procedure, which were able to provide statements on the horse’s character prior to and at the time of delivery. The buyer has requested the court to provide witnessess as well. However the hearing of these witnessess, according to the buyer, would need to be executed in the U.S. and by the U.S. court.

In a succesful defense Schelstraete manages to put a halt to the request of the opposing party. A main rule in Dutch litigation is that a judge who has been assigned to the case, is required to hear the witnesses himself in order to form an independent judgement on the credibility of the statements.

According to the court of Gelderland, the buyer has not provided enough motivation on why a different approach than the main rule is required. None of the grounds provided by the buyer indicate that the witnesses are unable or unwilling to attend a hearing in The Netherlands, or that the buyer has made specific attempts to convince the witnesses to attend the hearing in The Netherlands. Not to forget that it was the buyer who started the legal procedure in The Netherlands and not the cliënt of Schelstraete.

Client of Schelstraete Equine Lawyers (EUAEL Alliance Partner) wins case regarding a very ill horse

Client of Schelstraete Equine Lawyers (EUAEL Alliance Partner), a professional trading stable, purchased a jumping horse from an amateur rider. The horse became very ill within a few days after delivery and after several veterinary examinations on the clinic it appeared that the horse suffered from kidney cancer. The seller of the horse didn’t want to discuss a reasonable solution so our client started a lawsuit against the amateur seller. The judge of the Court Noord-Nederland didn’t need a lot of time to make up her mind and we received the verdict only 4 weeks (April 15th) after the court hearing. All her claims are awarded and the counterparty must refund a.o. the complete purchase price, veterinary costs and legal costs.

US client wins case from Belgian horse dealer concerning the horse’s character

Our client, a consumer buyer from the US, purchased a showjumper from a Belgian horse dealer. Soon after the horse arrived in the US it started to misbehave and refused to jump. Because of this our client decided to start a legal procedure in front of the Belgian Court in Leuven in order to return the horse to the seller and to have the purchase price refunded to her.

On 27 January 2016 the Belgian Court stated that it was clear that the horse refused to jump within only a couple of days after the horse was delivered to the client. As the Belgian civil code rules that when the buyer is a consumer it is (legally) assumed that – when the ‘malfunctions’ develop within 6 months from delivery – the horse already did not meet the expectations of the buyer before the purchase.

Under these circumstances it is up to the professional dealer to hand over proof that there were no problems with the horse at the moment of delivery. Because the seller didn’t had this proof the Belgian Court decided to dissolve the purchase agreement between parties and condemned the horse dealer to refund the purchase price of € 42.000,00 plus interest to our client. Furthermore, the horse dealer has also been condemned to pay damages of € 2.500,- and he has to pick up the horse in the US within 6 months. If he refuses to pick up the horse he will also be obliged to pay an additional amount of € 20,- per day of delay.

Our client was assisted by EEL and our Alliance Partner in Leuven (Belgium), Beelen Lawyers.

Contractor violates duty to warn its customer during the construction of an equestrian surface

On the 13th of January 2016 the Court of Oost-Brabant an interlocutory judgment was made on the contractor’s duty to warn when carrying out the agreement.

The case was as follows:

The client of Schelstraete (“A”), being an equestrian business, gave an assignment to a Belgian firm (“B”) for the construction of an equestrian surface, consisting of a sufficient functioning draining system and a turf that could be put back in place. “B” informed that the top layer needed to be removed in order to replace several layers with layers containing a draining function. After that the old top layer would be placed back in again.

After performing the work “A” noticed that even with an average rain shower puddles started to appear on the grass track, which resulted in not being able to use the track.

“A” therefore came to the conclusion that the surface did not comply to the requirements of the permeability, which “B” disputed.

“A” started a legal procedure against “B”. In this procedure an expert was appointed to investigate the surface. The expert came to the conclusion that the surface did not meet the standards due to maintaining the old top surface.

“A” claimed that “B”, being the contractor and a professional in the area of delivering equestrian surfaces, had a duty to warn with regards to the top layer and has violated this duty by not informing “A” of the unsuitability of the top layer and by not advising “A” to also replace the top layer.

“A” turned to article 7:754 of the Civil Code which says:

“When performing an agreement the contractor is obligated to warn the client for any inaccuracies in the assignment as far as known or reasonably could be known. The same obligation is applicable in the event of defects or unsuitability of goods originating from the client, including the surface on which client is having the work performed on as well as defects in the by client provided plans, drawings, calculations, specifications or implementation guidelines”. In an interlocutory judgment on the 13th of January 2016 the Court decided in favour of “A” and decided that “B” did not fulfil its duty to warn.

This brings that “B’s shortcoming in fulfilling the agreement is attributable and therefor is bound to compensate “A” for the damages that occurred. Parties have continued litigation on this matter.

Client of Schelstraete Equine Lawyers (EUAEL Alliance Partner) wins case in front of the Hague Court

On June 17th 2015 the Court rejected the counterparties claims. Our client was summoned by her former business partner who wanted her to return to him a sum of ‘borrowed’ money. He stated that our client lent money from him to buy a horse. However, my client argued in front of the Court that she never borrowed any money from him and she bought the horse on his behalf.

The Court agreed with our client’s point of view. The counterparties’ claims were rejected and he was ordered to pay to our client all unpaid stabling costs etc. since our client was taking care of HIS horse.

In this procedure our client was represented by Mr. Schelstraete and Ms. Loeffen of Schelstraete Equine Lawyers (EUAEL Alliance Partner)

Client of Schelstraete Equine Lawyers (EUAEL Alliance Partner) wins case in front of the Dutch Court on May 21st

Recently the Dutch Court delivered its final judgement in a case concerning  the sale of a horse. In 2009 our client bought a horse. In 2013 (!) the former owner of this horse stated that she did not sell the horse to our client but only leased the horse to her and she claimed the horse back together with several foals! On behalf of our client we successfully argued to the Court that there was no such thing as a ‘loan-agreement’ in this case. The counterparty had to proof that there was a loan-agreement but failed to do so for which reason the Court rejected her claims towards our client.

In this case the client was represented by Ms. Loeffen and Mr. Schelstraete of Schelstraete Equine Lawyers (EUAEL Alliance Partner).

London Client of Beelen Advocaten (EUAEL Alliance Partner) wins short law suit in Belgium in front of the Court of Charleroi

Together with Mr Katrien Beelen of Beelen Advocaten (EUAEL Alliance Partner), EUAEL was successful in representing a London buyer in order to defend the arrest on horses and bank assets that belong to a horse dealer in Belgium.

The buyer annulled the purchase agreement of the show jumper as the horse showed many defects. The buyer also arrested horses and bank assets that belonged to this dealer. The dealers lawyer pleaded before the Court of Charleroi to have all these arrests lifted but the Court rejected this request.

To be continued.

German client of Schelstraete Equine Lawyers (EUAEL Alliance Partner) wins short law suit from Ukrainian plaintiff in front of the District Court of Limburg, the Netherlands dated 1 April 2015.

The judge of the District Court of Limburg ruled that as Schelstraete Equine Lawyers’s (EUAEL Alliance Partner) client (the defendant) had already lifted the arrest on a horse and its passport the plaintiff had no further interest in the judge its interference. For this reason plaintiff’s claim was denied.

The complete decision (Dutch available only) can be read here.

Claims towards Schelstraete Equine Lawyers’s (EUAEL Alliance Partner) client rejected by the Court of Den Bosch

After a long legal procedure, the Court recently put an end to the dispute between two private horse owners. The seller, represented by mr. Loeffen and mr. Schelstraete of Schelstraete Equine Lawyers (EUAEL Alliance Partner), sold a horse to an amateur rider. The buyer argued that after the purchase the horse suffered from a defect (a tumour in the head which caused the horse to tilt his head) as a result of which the horse could not be used as a sport horse. The Court ruled that the buyer didn’t have enough evidence that the alleged defect was present at the time of delivery and, therefore, rejected the claims of the buyer.

The seller in this procedure was assisted by Ms. mr. Loeffen and Mr. Schelstraete of Schelstraete Equine Lawyers (EUAEL Alliance Partner)

Positive turn in Appeal for Israeli client of Schelstraete Equine Lawyers (EUAEL Alliance Partner)

On 31 March the Court of Appeal in the Hague decided that it is up to the seller– in this case a Dutch trading stable which sold a dressage horse to our Israeli client – to prove that the horse was healthy at time of purchase and was not yet suffering from a chronic tendon injury.

The Court of Appeal decided that – contrary to the Court of first instance in Dordrecht – the fact that there is an animal involved which suffers from a tendon injury cannot oppose the application of Article 7:18 of the Dutch civil code. Now this tendon injury revealed itself within 6 months after purchase (in a professional seller vs. consumer buyer relationship) Dutch law presumes that the tendon injury was already present at the time of sale and it is up to the seller to prove otherwise.

If the other party fails to do so, the claims of our client will be awarded. This means the horse has to go back to the seller and our client receives full restitution of the purchase price and other costs like veterinary and stabling costs.

 

In this procedure our client was represented by mr. Vincent Zitman of Schelstraete Equine Lawyers (EUAEL Alliance Partner)

To be continued.

Click here to read the verdict of the Court (Dutch available only)

KWPN Arbitration Committee grant’s counterclaim of Schelstraete Equine Lawyers’s (EUAEL Alliance Partner) client on April 20th 2015

An alternative procedure of litigation in front of a district Court is possible for KWPN-members.

According to the KWPN Procedural rules its members can bring their claims to the KWPN Arbitration Committee.

Part of the debate: Schelstraete Equine Lawyers’s (EUAEL Alliance Partner) client, a former co-owner together with a breeding station of a KWPN approved stallion, was asked to deliver the KWPN studbook paper he still had in his possession. Schelstraete Equine Lawyers answered to this claim that his client still had a right of retention on this document f.i. because of the fact that the breeding station, after several years, still hasn’t paid the client’s claim on stud fees.

After several hearings Schelstraete Equine Lawyers’s client’s claim to settle the outstanding amount is granted.

Horses' rights in sales

In our legal practice, which is focused completely on equine law, we are offered cases involving the purchase or sale of a horse or pony on a daily basis. In this type of disputes, often it turns out that especially consumer buyers are not always aware what they are getting into, and lack insight
in the adequate care and training of a horse. They also lack understanding of their own obligations towards the purchased horse.
Click here to read the full article: Horses-rights-in-sales

The Court of Appeal confirms earlier positive judgement for Schelstraete Equine Lawyers’s (EUAEL Alliance Partner) foreign client

On January 13th 2015, the Court of Appeal Arnhem-Leeuwarden confirmed an earlier positive judgment in a short law suit.

The issue involved five horses from our client ‘A’ residing in Saudi Arabia which were trained  by B in England. At some point B moved the horses without permission from England to the Netherlands, where B kept the horses hidden for A.

In the earlier judgement B was ordered to stable the horses at a third party’s barn. B appealed to this decision and requested the Court of Appeal to determine that the horses need to be stabled at another barn and to allow B to train and compete with the horses.

The Court of Appeal rejected B’s claims and ruled in favour of Schelstraete Equine Lawyers’s (EUAEL Alliance Partner) client!

In the Appeal proceedings A was represented by Mr. L. M. Schelstraete and Mr. V. Zitman of Schelstraete Equine Lawyers (EUAEL Alliance Partner).

Positive drugtest caused by Luzerne?!

An interesting statement was recently placed on the website of the BHA (www. Britishhorseracing.com): ‘Regarding the finding of the Disciplinary Panel that seven horses which were found to have tested positive for morphine and oripavine should be disqualified from their respective races, but no action be taken against the trainers involved.

Jamie Stier, Director of Raceday Operations and Regulation for the British Horseracing Authority (BHA), said: “It was BHA’s position in the hearing that the source of the positive samples for morphine and oripavine was a contaminated batch of feed and that in the circumstances the trainers took all reasonable precautions to avoid breaching the Rules of Racing. As such BHA submitted that no penalty should be imposed on the trainers, however, in accordance with the Rules of Racing, the horses involved should be disqualified from the relevant races. The Disciplinary Panel today agreed this position.

“The Rules are clear on the matter of disqualification. Once a horse has been found to have had a prohibited substance in its system on raceday then disqualification of the horse must be the result. The administration of the substance was accidental and no fault of those connected to the horse but, while it is unfortunate for those involved, no other approach would be acceptable when the cornerstone of our policy is ensuring a level playing field for all participants.

“Instances of feed batches becoming contaminated are, thankfully, very rare. It has been an unfortunate situation for those involved, especially the connections of all the horses affected. BHA has worked with the trainers and NTF throughout, as well as the feed manufacturers and their representative body the British Equine Trade Association (BETA) to control and manage the consequences of this contamination as best as possible.” ’

At this very moment several FEI cases are pending in which horses were tested positive for Morphine and Oripavine. As soon as the outcome of these cases is known we will post an update on our website www.europeanequinelawyers.com. Horse owners all over the world should be aware of this issue so they can take the necessary precautions.

Horse seized?

Question

On account of a rent arrears the creditor has had my horse seized through a bailiff. As a result I, for example, cannot transport the horse without permission. Is this attachment valid? What measures can I take?

Answer European Equine Lawyers

When a debtor refuses to pay the rent on time and this creates a rent arrears, the creditor can impose an attachment, so that he increases the chance that his claim will be paid as much as possible. This is called a prejudgement attachment. In order to impose an attachment the creditor must first obtain a so-called ‘leave to attach’ from the court in preliminary relief proceedings. As soon as the court has granted the leave, the judgment creditor usually has 14 days to start legal proceedings. During these proceedings the claim of the creditor is further examined and it is assessed whether the attachment is valid.

As soon as a movable item, such as a horse, is attached, this means that the owner is not allowed to alienate (sell or encumber) the horse. However, this does not imply that the horse may not be transported.[1] This is different if the accompanying passport has also been attached. On the basis of the Identification and Registration legislation, which legislation is based on European regulations, a horse must always be accompanied by his passport.

Besides the payment of the rent arrears, there are two possibilities to lift the attachment. First of all, there are the so-called preliminary relief proceedings for lifting an attachment. With these proceedings the debtor can state at the court why the attachment should be lifted. The grounds on which the court can lift the attachment are stated in article 705 of the Code of Civil Procedure. The court can lift the attachment, for example, if the judgment creditor has not complied with all procedural requirements. If ‘prima facie evidence shows the invalidity and/or lack of necessity of the attachment’. The attachee has to prove that this is the case. In order to decide about this the interests will be mutually balanced. On the one hand there is the judgment creditor who runs the risk that he cannot recover his claim when the attachment is lifted and on the other hand there is the attachee who will incur a loss as a result of the attachment when the claim is defective. Furthermore, an attachment can be regarded as ‘unnecessary’ if the debtor provides sufficient opportunity for recovery and when there is no risk of embezzlement (in other words, the sale of the horse). When reading the case, I think that the rent arrears actually applies. It is for this reason that it is not automatically plausible that the court will proceed with lifting the attachment on account of the invalidity of the imposed attachment. However, the court will proceed with lifting the attachment if the attachee offers provides sufficient security.

Besides these so-called preliminary relief proceedings for lifting an attachment there is also the possibility – without the requirement of legal proceedings – to offer a bank guarantee to have the attachment lifted. Then the bank will provide security to the creditor that a certain sum, that is to say, the level of the rent arrears, will be paid when the judgment creditor is proved right in the proceedings on the merits. As soon as a bank guarantee is provided, the attachment must be lifted, see article 705, paragraph 2 Code of Civil Procedure.

When a horse owner is confronted with an attachment on his or her horse, this is obviously a very unpleasant situation. In these cases it is always advisable to consult a lawyer, who can examine the validity of the attachment together with you and, if necessary, can take the required legal steps on behalf of you.

This question has been answered by Mr Luc Schelstraete, LLM. and Mrs Nikki Hamers, LLB. of European Equine Lawyers.

Schelstraete Equine Lawyers’s (EUAEL Alliance Partner) clients claim granted in short law suit

On October 2, 2014, the  Provisional Judge of the District Court of Overijssel (location Almelo) issued a positive judgment in a short law suit. The issue involved five horses from our client ‘A’ residing in Saudi Arabia which were trained  by B in England. At some point B has moved the horses without permission from England to the Netherlands, where B kept the horses hidden for A.

The provisional judge ruled in favour of A. B is ordered to stable the horses at the barn of a third party. Thanks to this judgement A knows about the whereabouts of his horses stay and he can monitor their health.

In the short law suit A was represented by Mr. L. M. Schelstraete and Mr. V. Zitman of Schelstraete Equine Lawyers (EUAEL Alliance Partner).

The entire judgment can be read here (Dutch available only).

Is a vet liable for an injury that happened in the clinic?

Question: I took my mare to the vet clinic for artificial insemination. In the stable my horse got clamped when lying down and due to this injured her leg. Who is liable in this case and will take over the costs?

Answer Schelstraete Lawyers:

Before taking a horse to a vet clinic, a treatment contract is signed with the clinic. Those contracts often refer to the general terms and conditions that apply to the signed treatment contract. These general conditions, often named small print, in some cases exclude the liability of the vet clinic and/or the vet.

The content of the treatment contract as well as possibly the general conditions in the special case are unknown, therefore we cannot refer to this.

However one can ask, if it is generally possible to let the clinic take over costs that were induced by the horse itself. In this case the horse got clamped during lying down. This is something that can easily happen at home in the stable too. The fact that from this a serious leg injury resulted does not change anything about this.
In this situation we can therefore give a short reply. The vet clinic can in principle not successfully be made liable by the owner of the mare. There is no sign that the clinic is to be blamed and/or that the clinic acted careless and therefore caused the injury. Possibly a different conclusion could be drawn if the stable was unsafe, putting the horses at an increased risk for clamping.

We have to come to the conclusion that the owner herself is responsible for the leg injury and has to take over the resulting costs in this case.

This question was answered by Mr. Luc Schelstraete and Ms. Nikki Hamers from European Equine Lawyers. For further information please mail to info@schelstraete.nl or give us a call via  +31 13 511 44 20.

Money back due to bad training?

Question:

I have put my four year old horse in training in order to “break” him. I got the affirmation that normally after a month the horse would control the basics (walk, trot, gallop, stop, left and right). After three weeks they still couldn’t really do anything with him so I extended the training period with three more weeks. After 6 weeks I decided to pick him up even though the horse was not really “broken”. Now I got it for two weeks at home and he takes on the work actually very easily. I have the idea that they have practically not trained him during the period my horse was at their place. Is there anything I can do to reimburse the training costs because I am dissatisfied with the quality of the training?

Answer of European Equine Lawyers:

First we need to see whether parties have signed a contract. With the abovementioned facts I cannot judge whether there is a training contract.

If there is a contract available it is important to see which ‘aim’ parties have agreed on. For instance, “break a horse”, prepare a horse for a test or train a horse to compete in competitions. With these types of contracts it is important to know that there is an obligation to make a serious effort for the trainer. This is contrary to the obligation to accomplish a certain result. People should understand that when you are working with an animal 100% guarantees to achieve a certain result cannot be given. There is a number of reasons which can prevent a certain goal from being reached. When the horse owner can prove that the horse was not trained properly or not at all the case could be different. The question is how you can prove a horse is not trained (properly).

Assuming there is no training contract the answer is as follows. When there is no written agreement it is very difficult to determine what the parties could be expecting from one another. When it is not clear what parties had agreed on it is very difficult to hold one liable due to ‘bad’ training. Based on the facts given the horse owner will not be able to reclaim the training costs she already paid to the trainingstable/trainer. The only thing that the horse owner could try is to get in contact with the trainer and discuss the matter in order to reach solution that will satisfy both parties.

This example shows once again how important it is to put your agreements in writing. Schelstraete can advise you with all kinds of contracts, such as purchase contracts, stabling – and training contracts. Putting agreements on paper can prevent problems afterwards.

This question is answered by mr. Luc Schelstraete and Ms. Nikki Hamers from Schelstraete Lawyers. 

Click here to read the article on the site of Horses International.

Client of Schelstraete Equine Lawyers (EUAEL Alliance Partner) wins again in Appeal!

A client of Schelstraete Equine Lawyers (EUAEL Alliance Partner), (hereafter referred to as ‘A’) was again vindicated by the Court of Appeal on August 5th 2014.

The case concerned a swap of two horses between ‘A’ and the counterparty (hereafter referred to as ‘B’ ). In October 2008  ‘B’ offered his horse for sale. ‘A’ was interested and they made an agreement that ‘A’ would give her horse Z and € 3.000,- in exchange for the horse of B, X. Shortly after this exchange, ‘A’ discovered that there was an injury to the right hind leg of horse X, which causes an increased risk of lameness. According to the veterinarian of ‘A’, this injury was present before A had purchased the horse from B.

In order to make the exchange undone, ‘A’ started litigation against ‘B’ early 2009. After a long process of almost two years, ‘A’ was vindicated by the District Court with the result that ‘B’ was obliged to take horse X back from ‘A’ and he had to return horse Z to ‘A’. In the meantime ‘B’ had already sold horse ‘Z, for this reason B must pay a replacement value of € 16.000.

‘B’ did not agree with the decision of the District Court and decided to Appeal against this ruling. In Appeal ‘B’ argued that the District Court wrongfully determined that horse X was unhealthy due to the injury on the right hind leg and that the replacement value of the horse of  € 16,000 was not duly motivated. Furthermore, in Appeal ‘B’ objected against the expert who was appointed by the District Court.

Nevertheless, the Court of Appeal rejects all claims of ‘B’ and confirms the decision of the previous Court. In addition to the damages which ‘B’ already was required to pay ‘A’, ‘B’ is also ordered to pay the legal costs that were made during the Appeal. Altogether a very positive outcome for the client of Schelstraete Equine Lawyers (EUAEL Alliance Partner).

A was assisted by Mr. L.M. Schelstraete and Ms. Mr. B.E.J. Loeffen from Schelstraete Equine Lawyers (EUAEL Alliance Partner).

Competitions and Exonerations

Dutch equestrian competition organisers frequently use liability exclusions, or so-called exoneration clauses. Prior to competing, participants often are required to sign an exoneration clause, so the organising committee of the event cannot be held liable in case of an accident for any damages suffered by the competitor and/or their horse.  Read the full article here

Schelstraete Equine Lawyers (EUAEL Alliance Partner) wins short law suit concerning unlawful seizure on horses

On July 22 2014, the provisional judge of the District Court of Oost-Brabant gave a positive judgement in a short law suit that a client (hereinafter ‘A’) of Schelstraete Equine Lawyers (EUAEL Alliance Partner) initiated in order to lift the seizure from her horses. Schelstraete Equine Lawyers assists clients with similar problems on a regular basis. When horses, real-estate, bank accounts or horse trucks are under seizure, most clients are experiencing severe inconvenience and suffer significant financial loss.‘A’ was recently confronted with a seizure on her horses which seriously hampered the daily care and training of the horses. For this reason European Equine Lawyers decided together with ‘A’ to start a short law suit.
The provisional judge ruled in favour of ‘A’ by deciding that the seizure will be lifted if the counterparty has not provided a bank guarantee for the amount of € 10.000,- before a certain date.
This is a great outcome for A because either the seizure is removed or she has the guarantee that she will receive proper undamagement for her financial loss caused by the seizures when the judge in the procedure on the merits decides that the seizures were placed unlawful by the Counterparty.

‘A’ was assisted by Mr. L.M. Schelstraete of Schelstraete Equine Lawyers (EUAEL Alliance Partner)

Rider gets compensated for eventing accident

Organizing committees of Dutch equestrian competitions more than often use exclusions of liability; so-called exemption clauses. By using this, participants declare to agree to these exclusions when they sign up for a competition, so the organizing committee cannot be held liable for any damage that happens to the participant or his horse during the competition.

However, on 20 May 2014, the Court of ‘s-Hertogenbosch, rendered a decision from which it follows that invoking an exemption clause is not always successful; especially not when the organizing committee has failed to comply with applicable national and international regulations of the Royal Dutch Equestrian Federation (hereinafter called ‘KNHS’) and the Fédération Equestre Internationale (hereinafter called ‘FEI’).

The case was as follows:

Organizing committee X organized an eventing competition back in October 2010 under the auspices of the KNHS. An eventing competition consists of (1) a dressage test, (2) a show jumping class and (3) a cross-country. The cross-country takes place in a natural environment, such as forests and meadows. During a predetermined route rider and horse must jump various obstacles such as ramparts, water passages, ditches, structures with tree trunks and such kind of objects; but also so-called mobile obstacles. The cross country was built by very experienced course designer Y who held a KNHS license.

Competitor Z registered for this competition and accepted in this framework among others the applicability of an exemption clause. After competitor Z successfully finished the dressage test and the show jumping class, he started the concluding part of the competition; the cross-country. When riding to the final obstacle, the horse did not jump high enough and it came into contact with the obstacle. As a result of this, Z and his horse both fell. The horse was so badly injured that it had to be euthanized on the spot by a veterinarian and Z suffered injuries to his ribs.

The final obstacle was a so-called mobile obstacle in the form of a farm house.

This obstacle was put in place by a tractor and pushed from above into the ground. The obstacle, however, was not propped nor attached to the ground with any anchoring. After the collision with horse and rider, the obstacle tilted in the direction of the horse and rider and fell over.

In the applicable terms it was listed (1) that the competition would be held according to the rules and guidelines for the eventing competitions, held under the auspices of the KNHS, and (2) that the organizing committee, nor any other person concerning the competition, could be held liable or responsible regarding any damage to persons, horses and / or material. Both participants and visitors participated and / or were present at their own risk.

Rider Z started a legal procedure against organizing committee X and course designer Y, in which he claimed compensation for the damage he suffered. Organizing committee X and course designer Y defended themselves by invoking the exemption clause. Both the Court of first instance and the Court of Appeal judged that the exemption clause could not be invoked.

In Dutch law principles of reasonableness and fairness can prevent that one can invoke a contractual term.

Whether these principles are to be applied in a particular case depends, according to existing jurisprudence, on all relevant circumstances of the case, including the nature and the further content of the agreement in which the contractual term appears, the social position and relationship between all parties, the manner in which the contractual is established, the extent to which the other party has been aware of the scope of the contractual term and, with exemption clauses, the degree of fault in relation to the cause of the damage, also in connection with the nature and severity of the involved interests. An exemption clause should remain inapplicable if the damage is caused by intent or conscious recklessness of the party held liable.

In the opinion of the Court of first instance and the Court of Appeal organizing committee X and course designer Y made a serious mistake by not securing the obstacle causing rider Z and his horse to fall down, so that due to the principles of reasonableness and fairness the exemption clause could not be invoked.

The Court of Appeal motivated its decision as follows:

1) According to applicable national and international regulations of the KNHS and FEI, it is of the highest importance that all mobile obstacles will not fall down when touched by rider and horse. Even if from those regulations it cannot be inferred that the obstacle must always be anchored to the ground, the regulations say that knocking down an obstacle must be avoided at all time. This can possibly also be achieved with a sufficiently solid strut but this also was not the case.

2) For the organizing committee X and course designer Y it was not difficult to take precautions, such as anchoring the obstacle to the ground or strutting it with heavy beams.

3) When building loose obstacles, one must take into account that serious injuries and financial losses can be caused.

4) Rider Z did not have to be aware that the obstacle was loose.

5) Besides all above, both organizing committee X and course designer Y were insured against liability.

The Court of first instance sentenced organizing committee X and course designer Y to compensate all damages to the rider Z and the Court of Appeal confirmed this decision during the appeal.

However, this does not mean that organizing committees can never invoke an exemption clause. Every time, all relevant circumstances of the case are decisive. However, if the applicable national and international regulations of the KNHS and the FEI are not respected, then in most cases an organizing committee cannot invoke an exemption clause due to the principles of reasonableness and fairness.

The whole decision can be read on www.rechtspraak.nl and then by searching on: ECLI:NL:GHSHE:2014:1426. For more information about this subject please contact Mr. V. Zitman of Schelstraete Advocaten through email info@schelstraete.nl or +31 13 511 4420.

Why it is important to measure a pony

Pony or horse? That was the main question which the Judge of the District Court Zeeland-West Brabant was confronted with on February 7, 2014. An Austrian purchaser started this case against a Dutch seller who was represented by Mr. L. Schelstraete of European Equine Lawyers.
The issue involved the sale of a pony in mid November 2011. The buyer bought this pony for her daughter with the aim to participate in National and International Championships. Two years after the purchase, the buyer accused the seller that the height of the pony was more than the maximum height permitted by the FEI regulations. This means that participation in international competitions would not be allowed anymore. In support of the claim, purchaser submitted two results of measurements made late 2013, showing that the pony exceeds the maximum height for a pony.
Seller defended himself by arguing that the presentation of the results dating from the end of 2013 showed that the pony at the time of delivery in mid-November 2011 would be too tall. Indeed, the results of the end of 2013 say nothing about the height of the pony two years earlier. European Equine Lawyers defended the seller by concluding that the results of the measurements dating from the end of 2013, show no relation that the pony had the same height at the time of delivery in November 2011. Furthermore the seller reasoned, using statements made by a veterinarian and farrier that various circumstances such as the thickness of the horse shoes and the method of training, can influence the height of a pony.
The Court followed the defense of seller and dismissed the claims of the purchaser in a judgment dated 21 February 2014.

Judge rules in case damaged tails – Schelstraete Equine Lawyers (EUAEL Alliance Partner)

On April 24, 2014, the Amsterdam District Court ruled in a remarkable case about the damaged tails of five horses. The owner of these horses started a lawsuit against the owner of the horse who has caused this damage.  The court ruled that it was proved that the horse of the defendant, had eaten the tails of the five horses. According to Article 6:179 of Dutch BW, defendant is therefore liable for the resulting damages caused by his horse. Concerning the amount of damage, both parties are still litigating.

Click here to read the whole decision. Dutch only

Is my vet liable for doping?

Question: My horse has tested positive for doping at an international jumping competition. Later it turned out that it was a medicine that my horse got six weeks before this competition. My vet said I could compete again after four weeks, is my vet liable?

Answer Schelstraete:
To hold a veterinarian liable is not easy. This is evident from the jurisprudence of the FEI. It is declared that the rider of the horse is classified as ‘Responsible Person’. As the rider of a horse, you are finally responsible for what the horse is given. Whether this for example is done by bad luck, a mistake by a groom, a veterinarian, etc., the rider is responsible. When you start a procedure for the FEI Tribunal considering that you have relied on the advice of the vet this will not have much effect.

Compensation could possibly be claimed If there is clear evidence that the vet actually said that you could compete again within four weeks. But you will have to have this written down by the vet, otherwise the vet will certainly deny. Besides that, you will also need to prove that the drug always is traceable after six weeks in the blood or urine, or that this happened because of the specific circumstances. In addition, it should be established what damage was suffered by the wrong advice, with the earlier named issues, it makes it hard to discuss the liability of a veterinarian. It is therefore important as a rider, to delve into what is or is not allowed and what is the detection times for the given medicine.

Who is responsibile for a pregnant mare

Question: Who is responsible when I buy a pregnant mare and something goes wrong what leads to the death of the foal? And what if I bought the mare, but the unborn embryo remains the property of the vendor? Or how about this when I only bought the embryo and the mare stays with the owner?
Answer Schelstraete: The main rule is that the owner of the horse is responsible for his animals and his animals causing any damage to property or third parties. This is called a liability. When you buy a pregnant mare, you are – unless you have agreed anything else with the seller – also automatically the owner of the foal that is still in the mare. If anything happens with mare or foal, it is for your own risk.
If you have purchased the mare but you have agreed that it is yet unborn foal remains the property of the seller, both sides can make agreements about the risks. Who would then be responsible (liable) in case the foal dies of course also depends on the cause of death. For example, if the mare in any way has caused the death of the foal or the owner of the mare has been negligent in the care for the foal, it could be argued that the owner of the mare (partly) is responsible or liable for the damage. If the foal dies without ant influence from the mare or the owner, it is obvious that the the risk is for the owner.
The situation is the same in the third case. If you only own the embryo, the cause of death and the influence of the owner and mare also have to be investigated. In such cases as described above, it is highly advisable that both parties agree about who is responsible in case of damage or death of mare and / or foal. To avoid discussions, write all agreements down on paper and have it signed by both parties.

Client of Schelstraete Equine Lawyers (EUAEL Alliance Partner) wins case regarding a very ill horse

Client of Schelstraete Equine Lawyers (EUAEL Alliance Partner), a professional trading stable, purchased a jumping horse from an amateur rider. The horse became very ill within a few days after delivery and after several veterinary examinations on the clinic it appeared that the horse suffered from kidney cancer. The seller of the horse didn’t want to discuss a reasonable solution so our client started a lawsuit against the amateur seller. The judge of the Court Noord-Nederland didn’t need a lot of time to make up her mind  and we received the verdict only 4 weeks (April 15th) after the court hearing. All her claims are awarded and the counterparty must refund a.o. the complete purchase price, veterinary costs and legal costs.

Schelstraete Equine Lawyers (EUAEL Alliance Partner) wins case Matthijs Maat

The Court Central Netherlands (Utrecht) vindicated Matthijs Maat from Stud Geerestein in the lawsuit between him and his former partner Aletta Swanborn. Maat was assisted by Schelstraete Equine Lawyers (EUAEL Alliance Partner). Swanborn is forced to pay € 300.000, – in advance as indemnification after the misappropriation and sale of the dressage horses U-Caro (by Welt Hit II) and Rosentolz (by Rotspon). Swanborn must withdraw all seizures that are lying on the possessions of Maat. By default, the Court imposed a penalty payment of € 10.000, – per day.

After ending the relationship, Swanborn sold both horses to third parties. The court considers it likely that both horses together are at least worth € 400.000,– and that these horses belong to Maat. For this Swanborn is now convicted to pay an advance payment of € 300 000,–, pending the final determination.

Source: paardenkrant.nl
Decision Court of Utrecht, February 19th 2014

Court of Amsterdam ruled in favour of a Client of Schelstraete Advocaten

On January 9th 2014, the Court of Amsterdam gave their final judgement in a case concerning the sale of a three year old Trakehner gelding. This case was started by the buyers of the horse and subject was if a slight remark of the left front leg would make the horse unfit for sport purposes. The seller of the horse was represented by Mr Schelstraete from Schelstraete Equine Lawyers (EUAEL Alliance Partner).

The Court ruled that there was no proof of the horse not being fit for sport purposes because none of the medical reports concluded that the horse was unfit to be used in the sport. Moreover, the buyers did not manage to deliver further evidence for the alleged unsuitability.
Regarding the argument of the buyers that they did not know what the meaning was of the ‘+ – normal risk’ as issued by the veterinarian at the pre purchase inspection, the Court ruled that it had been up to the buyers to inform about this before deciding to buy the horse, especially because the pre purchase inspection was achieved under the inspection of the buyers.
This ruling by the Court of Amsterdam once again underlines the importance of the buyer’s duty to investigate the horse if one wishes to invoke delusion or unsuitability of a horse for the purpose for which it was purchased.

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