by THOLEditor | Nov 23, 2023 | Features, Finance, Legal, Work
Many employees who want to move to another EU member State want to bring their pensions with them. Even a lump sum should be possible. However, the Dutch State made this practically impossible.
This week the EU Court found that this is a violation of the EU Treaty, the free movement of workers. This will have serious implications for those who want to move their pensions abroad. Professor Hans van Meerten a professor EU Pension Law GMW advocaten explains further.
The case
It should be recalled that the social protection of workers is one of the imperative requirements in the general interest which may justify a restriction on the exercise of the fundamental freedoms recognised by the EU Treaty.
The need to guarantee lifelong pension benefits as required by the Netherlands – can therefore be invoked to justify a restriction on the free movement of workers.
However, in order to satisfy the requirements of EU law, the national legislation must be suitable for achieving the objective pursued and must not go beyond what is necessary for that purpose.
By imposing certain obligations on the pension institution established in a Member State other than the Netherlands to which a worker who takes up employment in that other Member State wishes to transfer the value of his pension rights, the national legislation at issue cannot, of itself, prevent the risk that the worker will opt to receive his pension in a lump sum and cannot guarantee that the worker will receive his supplementary pension regularly during his retirement.
Beyond what is necessary
Moreover, the legislation in question goes beyond what is necessary to achieve that objective. As soon as workers leave the Netherlands to take up employment in another Member State and transfer the value of their pension rights to that State, it is for that other State to decide whether or not to allow all or part of the pension to be paid to those workers in the form of a lump sum.
If that amount is lost or spent in full, it is for that State to bear the financial burden of that loss, if any. In this case, the value of the pension rights after the transfer would no longer be income from Dutch sources, but income from the new country of residence.
Consequently, the restriction on freedom of movement for workers in question is not justified.
Comments
The Dutch Pension legislation is in many respects not EU proof. There are several cases and complaints pending. The above judgements of the EU court strengthen these complaints.
More information
For questions please contact our lawyer and professor EU Pension Law Hans van Meerten.
About professor Hans van Meerten
Professor Hans van Meerten is a specialist in the field of pension law, financial law and EU law.
He assists employees, self-employed persons, employers, pensioners, works councils, pension funds and asset managers. Nationally and internationally. Hans always assesses how Dutch regulations relate to the underlying EU law. Many legal issues have a European law background. Hans has regularly successfully argued that Dutch regulations should give way to European law provisions.
Hans frequently gives presentations and lectures at home and abroad on the above-mentioned areas of law. Current subjects he highlights are the Dutch pension agreement and European pension regulations (PEPP, IORP and the EU Charter of Fundamental Rights).
In addition, Hans is a part-time professor of pension law at Utrecht University and supervises several assistants in training.
by THOLEditor | Jun 28, 2023 | Features, Housing, Legal
Termination
The first option to terminate the rental agreement is when the landlord has given the tenant notice of termination but the tenant does not agree. The law states that the landlord can terminate a rental agreement on six grounds. One such ground for termination is if the tenant fails to prove themselves to be a good tenant, such as by illegally subletting the property. Another is if the landlord requires the property so urgently themselves that continuation of the rental agreement cannot be demanded.
The landlord must send the notice of termination to the tenant by registered letter. In this letter, they must state the grounds on which they are terminating the rental agreement, and on which date. The landlord must give at least three to six months’ notice of termination, depending on the term of the rental agreement. The tenant then has six weeks to agree to the termination. If the tenant does not do so, the landlord must apply to the courts to have the rental agreement terminated. The courts will assess whether the landlord has properly terminated the rental agreement and whether they have done so for valid reasons If that is the case, the court will determine the date on which the rental agreement ends and the tenant must vacate the property.
Termination for breach of contract
Another option to end the rental agreement is termination for breach of contract. The landlord may claim termination of the rental agreement for breach of contract if the tenant has not fulfilled their obligations under the rental agreement or the law. For example, the landlord can claim termination for breach of contract if the tenant has not paid the rent for at least three months.
In principle, a landlord must apply to the courts to have the rental agreement terminated for breach of contract. He is not able to do this alone. The courts will only grant termination for breach of contract if the tenant has failed so seriously to fulfil their obligations as to justify this. The decision to terminate a rental agreement for breach of contract is not taken lightly. In doing so, the courts also have the power to offer the tenant a ‘terme de graçe’. This is a very last chance to fulfil their obligations within a certain period of time. If the tenant fulfils his obligations within that period, the termination for breach of contract is avoided, and the rental agreement continues. If the tenant fails to do so, termination of contract will take effect and the tenant will have to vacate the property.
Preliminary relief proceedings
The aforementioned proceedings to terminate a rental agreement can be lengthy. Sometimes the landlord does not want to await the outcome of such proceedings on the merits. For example, when the tenant causes serious and persistent nuisance.
In that case, the landlord can initiate preliminary relief proceedings. In which, in anticipation of these proceedings on the merits to terminate the rental agreement, they claim the eviction of the property in advance. However, a claim for eviction in preliminary relief proceedings will only be upheld by the courts if they consider it likely that the courts will grant the claim for termination of the rental agreement in subsequent proceedings on the merits. Moreover, a prerequisite of this is that the landlord has an urgent interest in the eviction. This will make it impossible to await the decision of proceedings on the merits. It is up to the landlord to make this plausible. If the landlord succeeds in this, they can have the property vacated even before the rental agreement is terminated.
Eviction order
The ruling in which the court determines that the tenant must vacate the property is called an eviction order. This eviction order allows the landlord to have the property vacated by a bailiff. At their request, the bailiff will have the eviction order served to the tenant. This involves the bailiff handing the tenant the order and giving him one last chance to vacate the property voluntarily. The bailiff gives notice of the eviction. If the tenant does not voluntarily vacate the property within the stipulated period, the bailiff may proceed with eviction. The costs of eviction will be recovered from the tenant.
Would you like more information?
Would you like to know more about a property eviction or termination of a rental agreement? Then please do not hesitate to contact Zoë Ris or one of the other specialists at GMW advocaten.
by THOLEditor | Feb 24, 2023 | Features, Legal, Work
Before the Pandemic, working from home was not facilitated by all employers. During the Pandemic, we proved altogether that (long-term) working from home and/or working at a different location than the office can work very well. It also had many positive consequences. For example, people could live further away from work if they did not have to come to the office every day. And not having to commute every day reduces the pressure on the environment. Therefore, some companies kept (one or more) standard ‘work from home’ days and other employers even offered as an employment benefit the opportunity to work from a different – sometimes foreign – location. But what are your rights if your employer does obligate you to come to the office (again)?
Employment condition and working from home request
In your employment contract or the collective labour agreement (CLA or in Dutch ‘CAO’) a right to work from home can be included. In that case, your employer cannot change this right unilaterally without cause. Only if your employer has an overriding interest in revocation of your right to work from home, he might be allowed to do so. Always consult a lawyer if your employer wants to change your employment conditions unilaterally.
If your employment contract or CLA lacks a right to work from home, you can file a request for working from home. You have to meet the following conditions:
- On the desired starting date of working from home you are working for your employer for at least six months;
- The company you work for consists of at least ten employees;
- Your request is in written form;
- Your request is done at least two months before the desired starting date.
In exceptional cases, such as a child or partner that suddenly gets long-term ill, the condition of doing the request at least two months before the desired starting date and having been employed for at least six months is not applicable.
Your employer can only deny your request if he has a good reason for this. For example, when serious problems occur in the working schedule due to you working from home. The denial must be made known to you in writing within one month of your request. Without a written refusal within one month of your request, your request is deemed to be accepted and you are allowed to work from home.
Working from home safely and allowance
As in the office, it is the employer’s obligation to ensure a safe workplace. One of the ways to ensure this, is to offer you ergonomically sound work equipment, such as a desk and office chair, (ergonomic) mouse and keyboard etc. Your employer can also give instructions on how to work safely. Of course, it is also your responsibility to ensure a safe working environment, taking enough breaks and adopting the proper working posture.
To help reimbursing the costs that would not occur when working in the office, such as extra costs for water and electricity at home, the government allowed the employer to provide a working from home allowance of up to €2,15 per day.
Amber Willemsen is a lawyer specialised in employment law at GMW Lawyers. She often assists expats in a variety of employment law matters. Phone.: (+31) 63 980 78 78, e-mail: a.willemsen@gmw.nl.
Image provided by GMW.
