The judgment of the Court of Appeal raises three questions

The judgment of the Court of Appeal of The Hague raises the following three (technical) questions.

  1. Did the Court of Appeal (recognisably) apply both the qualitative and quantitative scope provisions of the mandatory ministerial decree in a fully correct manner?
  2. Did the Court of Appeal sufficiently recognise that it seems plausible that the bpf could successfully claim pension premium contributions with ‘retro-active effect’ from 1 January 1999?
  3. Why did the bpf not bring any claims regarding (i) the submission of employee data and (ii) pension premium payments against

Along these three lines, we will take a closer look at the Court judgment below and conclude with a clear perspective.

Qualitative and quantitative assessment taking into account the ‘Cao-norm’

Neither the Supreme Court judgment nor the Advocate General's Opinion (both in 2021) contains any passages on the (correct) interpretation of the following 'exclusively or principally' criterion in the mandatory decree’s scope provisions.

'Companies covered by the mandatory decree are those which operate exclusively or principally in the field of the travel industry. This is deemed to be the case if all or the majority of the company's employees work in the aforementioned field. A company or part of the company is considered to be principally engaged in the business of tour operator and/or travel agent if more than 50% of the wage sum of the company (or part thereof) is to be attributed to it.'

From the aforementioned text 'if all or the majority of the company's employees work in the aforementioned field' and 'more than 50% of the wage sum', it can be inferred that the scope of the Travel Industry is directly related to the activities carried out by the employees. With certain ‘scope information’ from, such as (a) the collective wage statements containing an overview of all employees employed in a given year, (b) the employment contracts entered into with these employees (including, pursuant to article 7:655(1) (j) of the Dutch Civil Code and articles 2(2) and 7 of the Dutch ‘Pensioenwet’, information about the position, the usual working hours and the salary of the employees) and (c) for each position/function a description of the actual work performed by the employees, it is possible, using the calculation model for industry-wide bcp-regulations described (in Dutch) here, to determine on the basis of verifiable variables whether (the company of) also meets the quantitative 'exclusively or principally' criterion of the Travel Industry’s scope provisions. It should be taken into account here that's company may (only) concern a certain part of its legal entity.

The Court of Appeal of The Hague did not assess the case in the manner referred to above, or at least this is not apparent from its judgment of 30 January 2024. The reason seems to be that did not bring all relevant scope information into the proceedings (as part of its defence). Although the Court of Appeal mentions the (so called by the Court of Appeal) quantitative 'principality principle' in various parts of the judgment, it mainly assesses's business activities 'as a whole', i.e. without (recognisably) looking into the actual activities of the various employees. The Court of Appeal thus seems to apply a rather broad, mainly qualitative analysis of the activities at the 'company level', as a result of which the quantitative assessment of the scope does not seem to have been conducted in a sufficiently precise manner (i.e. not exactly in accordance with the text of the scope provisions). The Court of Appeal concludes (in paragraph 6.6), after its assessment of's 'company-wide' activities, simply that 'nothing can reasonably be concluded from the facts established in this dispute other than that the core and centre of gravity of's business activities is to mediate the (online) booking of accommodations through its reservation platform.'

As noted in our previous news item regarding the, a correct qualitative and quantitative analysis is not only (more) in line with the so-called ‘Cao-norm’ (a standard from the Supreme Court according to which bcp-regulations should be interpreted), but can also better take into account the scope provisions of other regulated industries (bcp-regulations), which may come into the picture (and should always be taken into account in a court’s assessment, even if the parties have not expressly invoked them). For example, if mainly technical employees of should turn out to be involved in 'automating communication' by working on (parts of) any electronic (computer) installation, then the scope of the Travel Industry may fade into the background and the scope of the Metal and Technical Industry may come to the foreground, as explained in our 2021 news release. This latter aspect was also not (recognisably) considered by the Court of Appeal of The Hague in its assessment.

Please note: the above does not automatically mean that the outcome of the Court of Appeal of The Hague's judgment is incorrect in our opinion, but it does mean that a sufficiently accurate qualitative and quantitative analysis in accordance with the ‘Cao-norm’ does not seem to have taken place in this case. The reason for this seems clear: apparently did not bring into the proceedings all relevant scope information for all years from 1999 onwards.

Statue of limitation for (overdue) pension premium claims

The Court of Appeal of The Hague ruled (in paragraph 6.4) that the declaratory judgment claimed by the bpf that is obliged to participate, is not subject to any statue of limitations. A claim for payment of (overdue) pension premium contributions was not brought in these proceedings and therefore the Court of Appeal of The Hague did not have to rule on such a claim.

In (section 3.9 of) her opinion before the Supreme Court judgment of 9 April 2021, the Advocate General seems to be of the opinion that the limitation period in respect of this type of pension premium claims is only five years under article 3:308 of the Dutch Civil Code. Also in light of (inter alia) the judgments of the Arnhem-Leeuwarden Court of Appeal (of 15 October 2019, ECLI:NL:GHARL:2019:8464 and 8 December 2020, ECLI:NL:GHARL:2020:10274), it is highly questionable whether this basic premise is correct. Regarding the 15 October 2019 judgment, please refer to our earlier news release. It also seems to follow from the system of Dutch limitation law and from more recent ‘lower’ case law (e.g. Court of Midden-Nederland 21 April 2021, ECLI:NL:RBMNE:2021:1723 and Court of Midden-Nederland 30 June 2021, ECLI:NL:RBMNE:2021:2910) that, in principle, article 3:306 of the Dutch Civil Code (a limitation period of 20 years) and not article 3:308 of the Dutch Civil Code (a limitation period of five years) is applicable to this specific type of pension premium claims.

The Court of Appeal of The Hague seems to have ignored the above-mentioned premise, as (paragraph 6.4 of) the judgment states, inter alia, the following (emphasis added by the authors): "To the extent that there is a limitation period for a claim of PGB against to pay (overdue) pension premium contributions, in view of the limitation period, that does not in any event apply to the period starting five years before the date of the initiating summons (10 June 2015) or starting five years before the first moment of formal notice of 12 August 2014."

Apart from article 3:306 of the Dutch Civil Code, article 3:310 of the Dutch Civil Code ('claim for damages', with a maximum limitation period of 20 years) or 'extension of the limitation period' under article 3:321(1) and under (f) of the Dutch Civil Code (in case of a debtor who deliberately conceals the existence of the debt or its claimability, with an - implied - maximum period of also 20 years) may also be invoked in this type of case. Given that the bpf has summoned before 1 January 2019 and that the Court of Appeal of The Hague has since ruled that is (qualitatively and quantitatively) an employer within the Travel Industry since 1 January 1999, it would appear that the bpf could also claim pension premium contributions from with retro-active effect from 1 January 1999. Here, however, the bpf seems to encounter a (potential) problem.

Potentially remaining claims of the bpf

The bpf only claimed that the court should rule that is obliged to participate with effect from 1 January 1999. That claim was upheld by the court. If this judgment (also after possible cassation proceedings) is upheld, employees and former employees of may be entitled to pension accrual with the bpf as from 1999, even if this is not financially compensated by (the so-called ‘no contribution, still pension’ rule that only applies to bpf’s).

In these proceedings however, the bpf did not claim from (i) either the handing over of employee data or (ii) payment of pension premiums to be calculated on the basis of such employee data. If the declaratory judgment sought by the bpf and granted in these legal proceedings is upheld and does not voluntarily provide the employee data, it appears that the bpf will have to institute new legal proceedings against in order to obtain an enforcement order. This also applies to the pension premium contributions (yet to be quantified) owed by Although the bpf may be able to issue a writ of execution to for that purpose, could institute opposition proceedings before the court.

What next?

If the judgment of the Court of Appeal of The Hague in the referral case is upheld and does not wish to voluntarily disclose its employee data, it seems (as mentioned above) that the bpf and could end up in new court proceedings. The subject of the debate could then be the employee data to be provided and, on the basis of this data, (a) the assessment of the 'vertical scope' (i.e. which specific employees fall within the scope?) and (b) the pension premiums to be calculated and paid. Furthermore, the bpf may face a so-called exemption request from under article 13 of the ‘Wet Bpf’ (in case such a request has not already been made).

With regard to principles of ‘procedural economy’, it seems appropriate for employers to submit employee information in the proceedings (in the context of contesting the scope) regarding, to start with, (a) the positions/functions of the employees, (b) the exact work involved in these positions/functions and (c) the number of employees per position/function. Logically, this information should then be accompanied by a scope analysis with a clear and verifiable conclusion.

A bpf would also be wise to seek not only a declaratory judgment, but also the handing over of employee data and payment of pension premiums to be calculated on the basis of such employee data. It almost seems like this is only now, some 10 years after the bpf's first formal letter (dated 12 August 2014) to, going to come to a head, unless the bpf is content with (only) a declaration before the law (that is obliged to participate) and deems the pension premium payment itself a 'side issue' rather than a 'main issue'.

Lastly, we note (as in our previous news item on these proceedings) that within the Travel Industry (as with most other industries that have bcp-regulations), there is also an industry-wide collective labour agreement (CLA) regarding employment conditions as well as an industry-wide CLA fund (‘social fund’) that requires mandatory contributions. It cannot therefore be ruled out that future claims may be brought to apply the aforementioned bcp-regulations in the Travel Industry as well.


In case you should have any questions about the scope of application of industry-wide bcp-regulations, please contact your current Loyens & Loeff advisor or Mathieu J.H. Halsema and/or Robert Goedhart of the Bcp-regulations Team. We will be happy to assist you