Professor Dr. Marjon Weerepas

Charlotte Conjaerts

Introduction[1]

As of 1 January 2020, the Public Servants (Standardization of Legal Status) Act (Wet normalisering rechtspositie ambtenaren, Wnra) is likely to enter into force.[2] As a result of this law, several groups of employees will no longer be classified as public servants. At the same time, new public servants will be added to this list, such as employees of the Dutch Employee Insurance Agency (UWV) and the Social Insurance Bank (SVB). The new Central and Local Government Personnel Act 2017 (Ambtenarenwet, AW) will also be implemented. For employees working in the education sector, another law will enter into force in addition to the Wnra, namely the amending legislation to the Wnra for public servants in education (Wet tot wijziging van enige wetten in verband met de normalisering van de rechtspositie van ambtenaren in het onderwijs), as it is no longer considered desirable to distinguish between private education and public education.[3]

International legislation decrees that cross-border workers may only be insured by the social security system of one country. For ‘ordinary’ employees the country-of-employment principle generally applies as the main rule. For public servants, instead, an exception applies subjecting this group to a priority rule. This determines that the obligation of social insurance usually rests with the Member State where the public service is established. In concrete terms, the law and legislative proposal may have important consequences for staff in the education sector who carry out cross-border work (i.e. working in two or more countries, including home office).

This study examines the possible consequences of the Wnra as of 1 January 2020 in the event that the allocation of the social security obligation in a cross-border context is being changed as of 1 January 2020. It should be noted that only the consequences with regard to the obligation to pay compulsory social contributions are described here. The consequences that this may have on social security benefits are not included. This study also expounds the possible consequences of the Wnra with regard to the right to levy taxes on pensions in international situations.

Lack of correct figures

Regrettably, it is unclear how many people will be affected by the Wnra, as no exact figures are available. According to the website of the Dutch Ministry of the Interior and Kingdom Relations, more than half a million public servants will move from a public-law appointment to a private-law employment contract as a result of the Wnra.[4] The question is how many public servants who live abroad and work in the Netherlands are affected by the amendment of the law. Maastricht University Medical Center+ (MUMC+) alone employs approximately 800 cross-border workers: 740 from Belgium and 60 from Germany. One of the questions that follows is how many of these employees work outside the Netherlands in addition to their jobs in the Netherlands. In mid August, a questionnaire was sent to employees at Maastricht University to gain more insight into their living and working situation.[5] Statistics Netherlands only has figures on the total number of frontier workers who live in the Netherlands or abroad and who carry out cross-border work abroad or in the Netherlands. These data, however, make no distinction between public servants and employees.

An initial recommendation could be that Statistics Netherlands should provide more insight into how many of the frontier workers have a public servant status.

Consequences of the Wnra

Obligation to insure

The social security obligation may change as a result of the Wnra if the employee also performs work abroad. This is due to the European coordination rules of Regulation (EC) No 883/2004 concerning the pursuit of working activities in two or more Member States. One of the rules is that if a cross-border worker works in Member State A as a public servant and in Member State B as an employee, the cross-border worker is insured in the Member State where they work as a public servant. If, in this case, the status of the public servant changes to an employee status,

the main rule for determining the applicable legislation applies instead of the exception. This means, it must first be determined whether the employee performs or acquires 25% or more of their working time and/or remuneration in their State of residence. If this is the case, the insurance obligation is assigned to the State of residence. If the 25% criterion is not met, the insurance obligation is assigned to the State of residence or to another Member State, depending on the facts and circumstances.[6]

The report offers several sample calculations to provide more insight into the consequences of a cross-border shift in the insurance obligation, i.e. duty to pay social security contributions. These examples are based on the year 2018, as this is a full year for which holiday allowances and end-of-year bonuses can also be taken into account. For the sake of illustration, an example of frontier work situation with Belgium has been chosen (Table 3 in the report). This example presents a person who lives in Belgium and who works in the Netherlands for 0.9 FTE and for 0.1 FTE in Belgium. This example indicates that the employer’s costs will increase if the insurance obligation is assigned to Belgium instead of to the Netherlands. This is mainly because, unlike the Netherlands, Belgium does not have a ceiling in terms of the contributions to be paid and the bulk of the social security contributions to be paid in Belgium lies with the employer. If an employer has many of such cases, the increase in employers’ contributions can be considered substantial.

Pension

In the case of a private pension, the power to tax is, in principle, assigned to the State of residence. The question is whether, after the entry into force of the Wnra, the pension should be divided into a public and a private pension. After all, an employee builds up a state pension (overheidspensioen) until 1 January 2020 and after that date will be working as an employee. However, this matter has led to problems in the past.[7] In the case of state pensions, the Netherlands has the right to levy taxes on wage or pension payments for services rendered to the Dutch State, a political subdivision thereof, or a local authority governed by public law. This is the application of the cash-base system (‘kasstaatstelsel’).

In practice, a public service appointment is generally a prerequisite for this Dutch prerogative on taxing rights. According to the Minister of Social Affairs and Employment, this criterion will no longer work effectively after the entry into force of the Wnra. The treaty criterion of employment with a Dutch public-law body will be applied more directly to the interpretation of the concept of ‘public administration post’, irrespective of whether it concerns an appointment as public official or an employment contract. In principle, according to the Minister, the distribution of the right to levy tax does not change and the Netherlands will continue to be allowed to levy taxes on pensions. It is clear, however, that a dialogue needs to be started with Belgium and Germany in order to avoid ambiguities about the taxing rights of state pensions.[8] The question arises as to whether Belgium, Germany, and the other foreign authorities will accept this opinion.

Conclusion

It is clear that, prior to the adoption of the Wnra, hardly any cross-border impact assessment has been carried out. This study therefore expressly recommends it desirable for the concerned cross-border workers, concerned (public sector) employers and bodies involved that the necessary clarity be provided even before the actual implementation of the Act.