The Arnhem-Leeuwarden court of appeal has recently ruled that overdue pension premiums can be claimed from an employer by a mandatory industry-wide pension fund ('bpf') over a period of twenty years.
Pension premium payments to a mandatory bpf
An employer who is obliged by law to participate in a mandatory industry-wide bpf is subject, among other things, to the obligation to pay periodic pension premiums for 'his' employees. However, sometimes a bpf and/or an employer are/is unaware of such an existing mandatory relationship. This can lead to an ever-increasing claim regarding unpaid (overdue) pension premiums.
In the past it has been ruled by several courts in the Netherlands that such a claim is subject to a 'short' limitation period of five years (article 3:308 of the Dutch Civil Code or 'BW'); regardless of whether the bpf was familiar with the employer in question and (therefore) his payment obligation.
In a judgment from 2017 (ECLI:NL:GHARL:2017:3886), the Arnhem-Leeuwarden court of appeal has also ruled that article 3:308 BW applies to this situation, but with the caveat that the moment of 'claimability' can vary, depending on the content of the bpf's regulations. This would mean that in some cases a much longer 'retroactive effect' is in fact possible than the five-year limitation period stated in article 3:308 BW.
Not five years, but (in principle) twenty years
In its recent judgment of 15 October 2019 (ECLI:NL:GHARL:2019:8464) the same Arnhem-Leeuwarden court of appeal explicitly reconsiders its above-mentioned judgment from 2017. Article 3:308 BW (and therefore the five-year limitation period) does not apply to this type of claims, because they are directly based on the law, without the party entitled to payment (in this case: the bpf) being aware of its (claim on its) counterparty, so the court of appeal ruled. The court now considers it to be 'unfortunate' if in such cases the content of the bpf's regulations would determine when the limitation period will 'start', as was ruled in its above-mentioned (now reconsidered) judgment from 2017.
In principle, a limitation period of twenty years applies to this type of claims (article 3:306 BW). According to the court's ruling, the shorter limitation period of five years still applies to (a) a premium invoice once imposed or (b) a premium invoice that was not imposed in time due to default of the bpf.
This recent ruling by the Arnhem-Leeuwarden court of appeal illustrates once more how risky it can be for an employer to wrongly (intentionally or unintentionally) stay in the 'blind spot' of a mandatory bpf. After all, in the meantime a claim regarding unpaid (overdue) pension premiums can build up.
Wrongly unpaid premiums can be claimed over a period of twenty years. In addition; fines, costs and / or interest may be due. There may also be (overdue) contributions to mandatory collective social funds, to which the same limitation rules apply.
In short: an employer in the Netherlands must check carefully and in a timely manner whether he is obliged by law to participate in an industry-wide collective social and/or pension fund. Loyens & Loeff is able to assess whether (and to what extent) such a risk exists by providing a so-called 'quick scan'. Don't wait too long, because the financial stakes can be (very) high and may grow even further.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.