Dutch Supreme Court limits liability for unpaid pension premiums 

Employers, including platforms, active in an industry in which a mandatory pension scheme applies cannot be held liable for unpaid pension premiums beyond the 5 years limitation period which starts on the day following the day on which the claim of the industry pension fund against the employer for payment of the pension premium over a certain period becomes due or is deemed to have become due in accordance with the Pension Act. 

The Dutch Supreme Court has released an important ruling for companies, including platforms, that are active in an industry in which a mandatory pension scheme applies to all employees working in that industry, such as the taxi, staffing and travel industry. The ruling is also relevant for companies, including platforms, that currently make use of self-employed workers in these industries. The court held that they cannot be held liable for unpaid pension premiums that go beyond the five-year limitation period. 

Background to the case 

Employers in the travel industry must apply a mandatory pension fund since 1999. Booking.com operates an online platform that can be used to book a hotel room or to buy a plane ticket. 

In 2014, the travel industry pension fund claimed that its pension fund applied to Booking.com and its employees. Booking.com refuted this claim, stating it was primarily an IT company. The parties ended up in litigation and in 2021 the Supreme Court held that the pension fund was applicable to Booking.com as it qualified as a so-called travel agency. The fact that it is a platform could not help booking.com to avoid the pension fund obligations. 

The Supreme Court made clear that the pension fund cannot claim unpaid pension premiums from Booking.com all the way back to 1999. It held that the five-year limitation period (verjaringstermijn) starts on the day following the day on which the claim of the industry pension fund against the employer for payment of the pension premium over a certain period becomes due or is deemed to have become due in accordance with the Pension Act. The Pension Act states that, in short, the annual pension premiums are due no later than six months after the end of the relevant calendar year. 

Osborne Clarke comment 

This ruling is also relevant for companies, including platforms, that currently use self-employed workers for their business. Should at some point in time these self-employed workers be reclassified by a court into employees, and as a result pension premiums are due retroactively to a pension fund, the company cannot be confronted with claims for unpaid pension premiums going back beyond the five-year limitation period.

This will make a huge difference to employers, especially if the pension fund has been declared generally applicable to an entire industry for decades. With the rise of platforms (such as Booking.com, Uber and staffing platforms) questions on these issues have led to litigation, not only about worker status but also about the start of the limitation period with respect to unpaid pension premiums. The pension fund in the Booking.com case took the position that the unpaid pension premiums became due (opeisbaar) at the moment that the invoice for the unpaid pension premiums would be sent to the employer. As a result, the five-year limitation period would start to run at that moment. The Supreme Court rejected this standpoint, which will be welcome news for employers. 

Please contact our expert Jorgo Tsiris for more information.