Amendments to legislation affecting your pension scheme
In this update we will discuss developments in the areas of law and tax.
1. Developments in relation to the Pension Agreement
On 22 December 2022, the Lower House of the Dutch Parliament passed the Pensions (Future) Bill. The Upper House, which now has to approve the bill, has already heard various experts with a variety of backgrounds. The themes of feasibility, enforceability and implementation were discussed in detail. Whether after the election of Provincial Councils, there is still a (small) majority in the Upper House for the Pensions (Future) Act, is uncertain. However, the Upper House is still expected to vote on the bill in its present composition, in other words before the new Upper House is installed.
If the Upper House approves the bill, the Pensions (Future) Act will come into force on 1 July 2023. A transitional period up until 1 January 2027 is envisaged. Please note that the above-mentioned dates have not yet been finalised and may be changed.
All current defined contribution schemes with a progressive (increasing) defined contribution that existed before 1 July 2023 will be exempted from the obligation to have an age-independent defined contribution. Even after 1 January 2027, it will still be possible for members, who were members on 31 December 2026, to pay an age-related defined contribution. The mandatory age-independent defined contribution will apply to new members as of 1 January 2027.
In addition, defined benefit schemes (average pay and final pay) insured with an insurer before 1 January 2027 may still be converted into a defined contribution scheme with an age-related defined contribution. In this regard, it is also the case that after 1 January 2027 it will be possible to pay an age-related defined contribution for members that were already members on 31 December 2026.
It should be borne in mind that a number of adjustments will still have to be made by 1 January 2027 at the latest, if an existing defined contribution scheme with an age-related defined contribution is continued. These include, for instance, the survivor’s pension, which will soon depend exclusively on the employee’s salary.
We recommend that you take timely action in setting up a new scheme that complies with the Pensions (Future) Act.
A number of milestones apply in the case of pension schemes insured with insurers or premium pension institutions (PPIs). Employers must have submitted the offer, with possible adjustments, to their insurer or PPI by 1 October 2026 at the latest. This is also the last moment that the transition plan must be submitted to the insurer or PPI. The process involving conditions of employment must have taken place (well) before the offer is signed.
In this regard, it is good to know that an external disputes committee/transition committee will be set up. The aim of this is to offer support to social partners or, alternatively, to employers and employees who cannot reach agreement on matters that must be included in the transition plan.
The parties involved may jointly request the transition committee to issue a binding recommendation. Employers and employees who ensure their pension schemes with an insurer or PPI may submit a request until 1 January 2026.
Everything considered, this is in any event reason enough to agree on the timelines for this process with all the stakeholders now, so that you do not soon find yourself in a difficult position. Mercer has all the necessary expertise at its disposal to assist you with this.
2. Situation with regard to three pension topics
(i) Divorce (Division of Pensions) Bill 2022
During the debate on the Pensions (Future) Bill in the Lower Pass of the Dutch Parliament, it was stated that there is an interrelationship between the Pensions (Future) Bill and the Divorce (Division of Pensions) Bill. The government therefore intends to defer the introduction of the Divorce (Division of Pensions) Act to 1 January 2027.
The Divorce (Division of Pensions) Bill aims to modernise the division of pensions in the event of divorce and is the successor of the Divorce (Pension Settlements) Act, which has been in force since 1995.
Under the present Divorce (Pension Settlements) Act, a pension settlement is the default. Half of the retirement pension accrued during the marriage is allocated to each of the former spouses. If they so wish, the parties may deviate from this. Under the Divorce (Division of Pensions) Bill, conversion will be the point of departure. Half of the retirement pension accrued during the marriage will be converted into a personal right to a pension for the former partner. The “pension relationship” between the two former spouses will be broken in this way. In consultation with each other, the parties may agree to deviate from this. The pension administrator must then be notified of this within six months after the divorce.
(ii) Pensions (Small Pensions Asset Transfer) Act
Minister Schouten has held discussions with pension administrators to draw their attention to communication with regard to the surrender of small pensions and the consequences of this for members of pension schemes. The Minister also ascertained the level of preparedness of the Tax Department for this legislation.
If the accrued pension of a former member qualifies for surrender, the member will be informed by the pension administrator of the consequences that this may have for allowances, tax or other benefits.
Following various discussions, the Minister has concluded that the pension administrators and the Tax Department are adequately prepared.
(iii) Lump Sum Payment, Early Retirement and Leave Savings Scheme Act
The Lump Sum Payment, Early Retirement and Leave Savings Scheme Act came into force on 1 January 2021. We have informed you of this act, which came into force 1 January 2021, on numerous occasions.
The first measure provided for in this act is the pension administrator’s obligation to cooperate if members request the partial surrender of their retirement pension (up to a maximum of 10%). The proposed amendments also apply to third-tier old-age pension provision, net pensions and net annuities.
The coming into force of this act was initially deferred to 1 July 2023. The main reason for this was to give the pension administrators the necessary time to prepare, so that they could provide their members with timely information.
Minister Schouten has now stated that she considers the commencement date of 1 January 2024 to be “feasible”. The reason is that it is important for pension administrators to provide their members with timely information on the possibility of withdrawing the fixed amount and the consequences of this. In addition, the bill will be debated carefully by the Lower House of the Dutch Parliament, which has demanded an “adequate timeline”.
The leave savings scheme has been increased from 50 to 100 weeks as of 1 January 2021. The leave savings scheme works in the same way as a gross pension scheme. In other words, salary tax will only be withheld at the moment that the benefit is paid, but the (countervailing value of the) leave is exempt. Most employers who offer the leave savings scheme to their employees do not wish to have this liability reflected on their balance sheet, but prefer to outsource this to an external party. At present, however, there are no parties that wish to administer the leave savings scheme. This has everything to do with the fact that the Tax Department, certainly recently, does not approve outsourcing the administration of a leave savings scheme in which money is saved. In our view, a request to outsource the administration of a leave savings scheme has little chance of success at present. If this situation changes in the future, we will, of course, keep you informed.
3.Increase in the commencement age of the state old-age pension (AOW)
Minister Schouten informed the Lower House of the Dutch Parliament on 9 November 2022 of the increase in the commencement age of the state old-age pension in the year 2028.
The increase in the commencement age of the state old-age pension and the age from which entitlement to a state old-age pension is calculated is set annually on the basis of average remaining life expectancy at the age of 65 years, based on a fixed formula, and on each occasion is announced five years in advance.
After applying this formula, the commencement age of the state old-age pension in 2028 and the age from which entitlements are calculated will be increased by three months to 67 years and three months and 17 years and three months respectively. In 2021, the commencement age of the state old age pension and the age from which entitlements are calculated for 2027 were set respectively at 67 years and 17 years.
The standard retirement age is also linked to life expectancy, but increases relative to the commencement age of the state old-age pension (AOW) in steps of one full year. On the basis of the forecasts of Statistics Netherlands, the standard retirement age will remain 68 years in 2024.