The Employer has to Submit Documents by means of which the Sectoral Pension Fund Thinks it Can Demonstrate Compulsory Membership

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Court of Justice Arnhem-Leeuwarden, May 14, 2019, ECLI:NL:GHARL:2019:4138


It was not sufficient for an employer, who disputed the compulsory membership of a sectoral pension fund, to state that the burden of proof regarding compulsory membership rests with the sectoral pension fund. The employer could be expected to substantiate his defence by submitting documents and information from his administration.

In May 2014, the sectoral pension fund for commercial road haulage had informed a Cyprus based company that it was compulsory affiliated to the pension fund. After the company had objected to it, the pension fund had stated that the employer was a temporary employment agency with business activities mainly consisting of deploying drivers who live in the Netherlands to transport companies that are established in the Netherlands, so that the employer falls within the scope of the Decree in which participation in the pension fund had been made compulsory.
The pension fund based its assertion on information from, among others, the Chamber of Commerce, the company's website, which reports that Dutch employers can deploy their staff to the company and thus might save 30% on wage costs, since the Cypriot social security system is cheaper, a newspaper article and some statements made by a manager of the company. Subsequently, the pension fund sent the company invoices in August and September 2014 for an amount of € 180,000 per month.
When the employer refused to pay these bills, the pension fund issued a constraining order. The employer opposed this before the Sub-district Court. After the Sub-district Court had declared the objection unfounded, however, it was the Court of Appeal that had to decide on the case.

First of all the Court concluded that, according to a Regulation of the European Union, it is the Dutch Court that has the competence to judge on the case, because the defendant (the pension fund) is established in the Netherlands.
Next, the Court of Appeal had to assess whether the company and its employees are governed by the regime of the Act on Compulsory Membership of a Sector Pension Fund 2000 (Wet Bpf 2000) and the subsequent decision of the Minister of Social Affairs and Employment for compulsory membership of the Sector Pension Fund for commercial road haulage.
The company argued that it was an internationally operating transport business, not only employing Dutch drivers and having employment contracts subject to Cypriot law. According to the company, the burden of proof that the Dutch law applies to the pension fund rests with the pension fund. The pension fund, however, is of the opinion that it is the company that is obliged to pass on the names and addresses of its employees to the pension fund and to submit the procedural documents of an administrative procedure to the Court and to the Central Appeals Tribunal. This procedure was initiated following a decision of the Social Insurance Bank that the employees of the company fell within the scope of the Dutch social insurances.
The Court of Appeal shared the assumption of the pension fund.
Pursuant to the Dutch Civil Procedures Code, a litigant is required to make a full and honest disclosure of all facts relevant for the decision and the Court may order parties to clarify certain assumptions or to submit certain documents. Therefore, the Court of Appeal ordered the company to submit the procedural documents from the administrative proceedings. The Court of Appeal stated that possibly another order may be issued later to submit additional documents.


An employer has to pay contribution to a sectoral pension fund if it falls within the scope of the Minister's decision on compulsory membership of the pension fund. The burden of proof that the employer falls within the scope of this decision lies with the pension fund, but the employer cannot simply refuse to provide information and documents that should enable the pension fund to satisfy this burden of proof. At least, this is the case if the pension fund sets out facts that suggest a membership obligation. It should also concern documents that are available to the employer and that are not available to the pension fund.
The organizations that implement the pension scheme on behalf of the pension fund are quite often the same as those that implement schemes that are established by Collective Agreement and that imply that the employer has to make a financial contribution (such as schemes in which also a social or a training fund is established). Often contributions or premiums are claimed for these funds in addition to the pension premiums. The burden of proof is similar as above.
Finally: if a body has been designated by CAO to supervise compliance with the CAO, a discussion may arise on the powers of this supervisory body that, after all, depends on the question of whether the employer to be supervised actually falls within the scope of the relevant CAO. Even in that case, the employer cannot under all circumstances simply refuse to provide information and refuse to submit documents to enable the supervisory body to prove its supervisory powers.

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