Pension law  in this day and age.

For all companies with a pension plan, a new pension plan that complies with the WTP (transition phase) must be in place no later than January 1, 2028 (for now). Important in this respect is that the character of the scheme must be a contribution agreement with an age-independentpension premium. Under conditions it is possible to make use of 'respecting effect'. A pension plan that currently has an age-dependent pension contribution may in that case continue the increasing contribution. Please note: other elements of the pension plan must be adapted to the WTP by the final transition date.

Our pension lawyers provide advice and guidance on the adjustment of pension plans in connection with the Wtp.

Whether a company should compulsorily join an industry pension fund depends on three questions: (1) what are the company's activities; (2) which activities fall within the scope of the industry pension fund's decree of compulsory membership; and (3) do the company's activities fall within the scope of the decree of compulsory membership or not?

This usually requires a thorough (legal) analysis. This is because company activities can be complex, diverse and subject to change. Scope provisions in commitment decrees usually develop much more slowly: as a result, it is not always clear whether activities are covered or not. Also, the presence of a main criterion, sometimes makes detailed research required.

Because the consequences may be significant (for example, because of possible retroactive effect), obtaining advice is highly advisable in case of doubt. In many cases, the question also arises whether the company must apply a collective bargaining agreement (CAO). Sometimes the scope of application is (slightly) different.

Our pension lawyers can be engaged for accurate scope investigations. We assess whether an obligation to participate in an industry-wide pension fund applies and/or whether a collective bargaining agreement must be applied. If this turns out to be the case, we advise and assist in any further implementation and in 'managing' the consequences for the past.

If the change to a pension plan is handled carefully (clearly in the sense of: what is changing? what are the consequences? How will they be mitigated?) and communicated, usually most employees will be inclined to agree to the change. Under circumstances, it is possible to implement a change unilaterally. For example, through a written change clause (Article 7:613 BW) or through good employee conduct (Article 7:611 BW). However, the employer will always have to have such a compelling interest that the interest of the employee must reasonably be given way.

In some cases, an employee may also be bound automatically. For example, if it is contractually stipulated that the individual right of consent is replaced by the right of consent of a works council. Or if the change has been agreed upon at the collective bargaining agreement level and it is reflected in the employment contract.

It is therefore relevant for the employer to know in advance the manner in which the pension plan will be changed, so that sometimes automatic binding can be achieved. In other cases to shape a change proposal in such a way that the overriding interest criterion mentioned above is met.

Our pension lawyers advise, assist and/or litigate on change disputes. Both for employers and for employee participation bodies or employees.

The Pension Act distinguishes between unconditional and conditional agreements on indexation. If there is an unconditional indexation commitment and indexation is already to be financed under that commitment, that agreement may no longer be changed. The Supreme Court ruled this in the so-called AFM judgment.

In the case of a conditional indexation promise, the entitlement does not in principle fall under the protection of the Pension Act. However, this is usually a regular condition of employment for which, in principle, a weighty interest is required to be able to change it.

Even when the employment contract has been terminated, indexation agreements with respect to “sleepers” and “pensioners” may generally be changed. However, the (former) employer must behave as a 'good employer' and/or according to the requirements of 'reasonableness and fairness'. This may mean that the former employer is obliged to take compensatory measures. This is demonstrated by the Supreme Court's rulings in the John-Crane and Euronext Amsterdam case.

Our pension lawyers advise, guide and/or litigate on the (unilateral) modification of indexation agreements.