From the decision of 26 July, it is clear that – in conformity with article 3:4 of the General Administrative Law Act – mandatory industry-wide pension funds should take the employer’s interest into account in their exemption policy regarding voluntary exemption (article 6 Sectoral Pension Funds (Obligatory Membership) Act 2000 (Exemptions and Penalties) Decree – the Decree). According to the TIAT, the revocation of an exemption from mandatory participation in an industry-wide pension fund cannot be based on the interest of solidarity and collectivity of the industry-wide pension fund. That interest does not outweigh the interest of the employer to continue to offer the employer’s own pension scheme. In this specific case, the employer’s interest outweighed that of the industry-wide pension fund as both the pension basis (pensioengrondslag) and the coverage ratio (dekkingsgraad) of the employer’s own pension scheme were better than the scheme of the industry-wide pension fund. For this reason, the TIAT considered that the question whether the statutory requirement of financial equivalence (article 7 subsection 5 of the Decree) was fulfilled, could remain unanswered.

In Dutch case law, the TIAT decision of 26 July 2022 is the first decision from which it is clear that mandatory industry-wide pension funds are also obligated to ensure that decisions on revocation and rejection are not unreasonably disadvantageous (not even in the event that certain statutory requirements have not been met). Going forward, such decision by industry-wide pension funds will be tested in full (rather than a simple test on reasonableness - marginale toetsing). This is in keeping with the recent case law from the Administrative Jurisdiction Division from the Council of State (Afdeling Bestuursrechtspraak van de Raad van State) of 2 February 2022. Taking the above into consideration, mandatory industry-wide pension funds would be well advised to ensure that their policy regarding voluntary exemption is compliant with the latest case law.