Obligation to include foreign workers in a Dutch pension fund?

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A Dutch court recently ruled that foreign (EU) employers who temporarily post workers in the Netherlands must participate in certain industry pension funds. This ruling has particular relevance for EU companies active in cross-border transport and construction projects.

The court held that a Cypriote transport company, which had its drivers working temporarily in the Netherlands, should participate in the pension fund for the transport industry. Under Dutch law, participation in this pension fund is mandatory for all transport companies that fall under the scope of the (Dutch) statute.

The ruling, however, can be considered wrong because it is not in line with the Posting of Workers Directive (96/71/EC). This Directive excludes pension arrangements from the minimum wage provision (Article 3 § 1-c). As a result, a national obligation for EU employers to include its posted workers in the Netherlands in a Dutch pension fund, as the court accepted, violates the EU core freedom to provide services. I explained this in the Dutch law journal JAR 2017/6.