29 July 2020

Pension litigation

By Koen Vermeulen

Last week, Stichting PensioenBehoud and seniors association KBO-Brabant published a news item on their ongoing lawsuit against the Dutch State about retaining pensions.

They consider the Dutch calculation rules to be in conflict with the European pension directive, and the reason why their pension has not been adjusted for inflation, and has in fact contracted for years. GMW lawyers supports them in this ongoing procedure. The news item can be found here.

Change of pension scheme and duty of care

In addition to this procedure, GMW lawyers acts for (former) employees who are affected by changes to the pension scheme. This could include the introduction of an employee contribution or an austerity of pension due to economic reasons or the corona crisis. Consideration may also be given to changing the indexation (inflation) of the pension. Or a general change to the type of pension scheme.

We also advise employers in such processes where the timely and correct provision of information and request for consent to the change are essential. According to the jurisprudence, the information and care obligations of employers (and pension providers) extend further and further.

Proceedings against mandatory industry-wide pension fund

In addition, GMW lawyers conducts legal proceedings against pension funds on behalf of employers. The question then is simply whether the company in respect of its activities falls within the scope of a compulsory industry pension fund. Incidentally, European regulations can also play a role here, namely whether the statutory obligation of a pension fund is contrary to free competition and the free movement of services. A question that remains relevant with the arrival of the new pension system.

Pension agreement and new pension system

Although Minister Koolmees has indicated in the House of Representatives that he expects few (successful) procedures against the new pension system, these are, however, obvious. How about taking away the individual right of participants and retirees to object to a collective value transfer. And how does the transfer (in short, the conversion of existing accrued rights into the new pension system based on individual pension capital) relate to – again – European law?

When announcing a major change in employment law with the WWZ (Wet werk en zekerheid), “the polder” indicated that there would be less litigation. The opposite turned out to be the case. It remains to be seen how this will turn out with regard to the new pension system.

Further information and assistance

If you would like further information or you have a question about this topic, please contact me.

 

Koen Vermeulen

Koen Vermeulen

Lawyer / associate partner

Koen Vermeulen is your sparring partner for all questions on employment law, employee participation and pensions.

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