DigiD test case

Certain cases submitted to ITEM cannot be resolved through creative legal interpretation, our contacts with the relevant governmental authorities or other forms of collaborative efforts. Whereas every attempt will always be made to resolve the issue amicably, in specific instances this may not be sufficient.

Where the issues at stake are considered to be of particularly fundamental importance, potentially affecting a large group of people, and relate to cross-border cooperation and/or mobility, ITEM will where necessary provide assistance to individuals seeking to start legal proceedings.

The overarching aim of these test cases is to seek to resolution both of the individual problem as well as to promote a lasting change in the legal framework governing similar cases.

This is the description and progress of our DigiD test cases.

A digital identity or ‘DigiD’ is a necessity when working or living in the Netherlands. With the DigiD, an individual can communicate easily with a range of Dutch governmental institutions and receive (digital) services. For instance, the DigiD allows one to make an online application for child benefits as well as appointments at a municipality. In addition, it provides access to many information resources, such as an overview of one’s pension entitlements at the click of a button. However, in order to apply for a DigiD one needs to fulfill one of the following conditions:

• Reside in the Netherlands, or
• Have the Dutch nationality

This means that people who work in the Netherlands but live outside the Netherlands, such as frontier workers, have no access to this service, making information requests more difficult and applications for certain public services more extensive. This appears to be an unnecessary obstacle for such cross-border workers and such exclusion amounts to discrimination on grounds of nationality. After all, should a Dutch national live in Belgium but work in the Netherlands, he or she would have the possibility to request a DigiD. A Belgian national in exactly the same situation is not so fortunate.

Since repeated contacts between ITEM and the Ministry of the Interior and Kingdom Relations (letters, meetings, Eurolab) have yielded no positive result, the case was brought before the District Court of the Hague. In June, the latter court ruled that the Ministry does not have to grant access to DigiD to frontier workers. After appeal with Administrative Section of the Council of State (ABRvS), the ABRvS ruled that access to DigiD is a social advantage and should according to EU law also be open to foreign cross-border workers in the Netherlands. More details on the rulings can be found below.

Case Summary

A person of Belgian nationality works for a company in the Netherlands. She has applied for a DigiD code in the Netherlands. The DigiD is required for logging in to many public websites and a large number of websites of other organizations that operate in the Netherlands. Without a DigiD code it is impossible, for example, to view one’s pension accrual status online; access the inbox on Mijnoverheid.nl, a personal website on public matters; or apply for income-related fiscal compensations known as Toeslagen.

Her DigiD application was refused, however, as a DigiD code is only provided to a person of Dutch nationality or a resident of the Netherlands, pursuant to the Generic Digital Infrastructure (GDI) Provisions Regulation (Regeling voorzieningen GDI).[1] This decision was objected to and subsequently appealed. Below is a summary of the proceedings at the District Court of The Hague against the Minister of the Interior and Kingdom Relations, who has the authority to decide on such applications.

European law obliges Member States to award the same social advantages to all citizens of other Member States. [2] The European Court of Justice interprets social advantages as ‘all […] advantages by means of which the migrant worker is guaranteed the possibility of improving his living and working conditions and promoting his social advancement’. [3] Examples include study financing and reduction cards for transport.

The Minister of the Interior and Kingdom Relations states that social advantages can also be obtained without a DigiD code, for example by written procedure. According to the Minister, reception of a DigiD does not in itself constitute a social advantage as referred to in the European regulation and therefore does not have to be granted equally to those who reside outside the Netherlands. Finally, the Minister expresses concern about the reliability of identity authentication. She believes that the current scheme can be justified on grounds of the fraud sensitivity of the issue, even if it is contrary to European law. People who reside outside the Netherlands must present a Dutch identity card to receive a DigiD activation code. The Minister claims that the employees who provide the codes can only check the authenticity of Dutch documents.

The applicant disagrees. She believes that the GDI Provisions Regulation should not be applied because it contravenes EU law, constituting a breach of the free movement of workers. The Treaty on the Functioning of the European Union (TFEU) does not allow for making distinctions between workers from different Member States. [4] The applicant believes that she is being subjected to discrimination on the basis of her Belgian nationality since Dutch nationals who reside in Belgium experience no problems when applying for a DigiD code. In addition, the Minister’s position that (the use of) a DigiD code is not necessary to enjoy social advantages is wrong-headed. Possession of a DigiD code is useful and a clear advantage in administration. The ability to digitally submit and recall relevant information is particularly useful for frontier workers, in that it prevents the need for cumbersome procedures and physical presence and renders waiting for mail obsolete. For these reasons, DigiD is indeed a social advantage, and no distinction should therefore be made between nationalities. Finally, the applicant argues that the employees who provide the codes can indeed check the authenticity of the identity cards of EU citizens as these cards have been harmonised at EU level. In addition, the registration of foreigners in the Key Register of Persons (Basisregistratie Personen – abbr. BRP), which involves checking the applicant’s identity, takes place in the same location. The appellant argues that the justification is insufficient.

District Court

The Court considered the question whether the opportunity to use a DigiD code can, in itself, be regarded as a social advantage. The Court noted that a DigiD code is a non-obligatory login means giving access to public services that are also accessible without DigiD. No further rights arise from being granted a DigiD code, nor is it a necessary condition for claiming certain rights. In addition, the Court found that the refusal to grant a DigiD code did not hamper the free movement of workers, nor was the reduction of the administrative burden, if any, sufficient to designate the DigiD code itself as an improvement of the living conditions and social position of employees. The Court did not substantiate or illustrate this any further, nor did it address the practical concerns of the other options that are theoretically possible. The Court did not address the feasibility of checking foreign identity cards since it had ruled that the free movement of workers had not been affected. The Court dismissed the appeal as unfounded.

The applicant lodged an appeal with Administrative Section of the Council of State (ABRvS) after the decision.

Administrative Section of the Council of State

Hearings took place at 28 February 2019 and 1 October 2019. As expected, the ruling came later than within the normal period of 6 weeks. On 24 December 2019 the ABRvS ruled on the case.

The ABRvS is of opinion that the option for foreign taxpayers to create an account on the website of the Dutch Tax Authority with an username and password is not equal to the DigiD, because such an account does not offer the possibility to request a provisional tax assessment or change personal details and therefore is more limited in functionalities within the Tax Authority. Furthermore, DigiD, in contrast with an account, offers more benefits next to the Tax Authority, such as the possibility the login with other institutions as pension providers. The ABRvS therefore concluded that there is legitimate procedural interest of the applicant.

On the question whether a DigiD can be considered as a social advantage, the ABRvS is of opinion that having access to a DigiD does fall under the scope of the definition of social advantage as in Article 7, second paragraph of Regulation 492/2011. The European Court of Justice has a rather broad explanation of ‘social advantage’, including also means of communication. It is very likely that not having access to a DigiD can cause administrative burdens and therefore not improving the life circumstances. The ABRvS noticed that having access to a DigiD has in many cases become a prerequisite for access to and effective use of certain services. This has created such a close link between DigiD and the underlying social benefit that the means by which access is gained is itself to be considered as a social benefit.

Furthermore, the ABRvS is of opinion that there is no direct discrimination based on nationality, because foreign nationals that do live in the Netherlands are granted access to DigiD. The combination of a non-Dutch nationality and living abroad that is decisive for the access to DigiD. Hence, there is indirect discrimination of non-Dutch nationals that are not living in the Netherlands, but are working in the Netherlands, as in the case of the applicant. The justification grounds of this indirect discrimination are insufficiently argued by the Minister and therefore are unfounded.

Implementation of the judgement: realizing a DigiD for frontier workers

On 24 December the ABRvS ruled in favour of a DigiD for non-Dutch citizens that work in the Netherlands. Now the Ministry of Interior Affairs, who has the political responsibility, has to implement this ruling. Under this paragraph, we will monitor the progress.

• AO belasting- en sociale zekerheidspositie van grensarbeiders, 5 maart

During the committee meeting of Finance on the social security and tax position of frontier workers, Minister Knops indicates that: “DigiD cannot yet be used in other Member States because DigiD has not yet been notified. It is expected that DigiD can be notified in August 2020. After notification, DigiD must also be able to connect to the infrastructure. The expectation is that from the first half of next year, DigiD can gradually be used substantially and high – that is the level at which we want to work – to log in to other member states.” Read the report here (Dutch only).

• ‘AO GROS’ 11 March

During the committee meeting of Interior Affairs for Cross-border Cooperation on 11 March 2020, MP Middendorp asked about the implementation of the judgement. In his answer, Minister Knops indicates: “The difficulty lies in the fact that if they do not have Dutch nationality, they do not have a document issued and to be checked by the Dutch government and therefore do not have a reliable address in the Netherlands. In that case, it is practically difficult to issue a reliable document and establish their identity. As a result of this ruling of the Council of State, I am currently investigating whether we can provide those foreign border workers with a DigiD via the DigiD foreign desk. This counter process is now limited to Dutch nationals for security reasons. But it may also be possible to provide a DigiD for other Union citizens via the counter. I hope to inform you about this soon.”

Read the report of the meeting here (Dutch only).

• VAO GROS 3 June

The judgment will be complied with by expanding the circle of rightholders and to this end matters will be settled technically and legally. It is not expected until the autumn that foreign frontier workers will actually be able to apply for DigiD, apart from some possible delays on the part of Corona. The technical infrastructure for eHerkenning is also expected by the end of 2020, so that it can actually be used by entrepreneurs in other European countries. Read the report of the meeting here (Dutch only).

• Kamerbrief 2 July

In a letter to the Second Chamber of the Dutch Parliament, Minister Knops informed the members of parliament about the progress as regards the provision of a DigiD to foreign frontier workers. The EU citizens who do not reside in the Netherlands, but have a connection to the Netherlands and are registered in the Registratie Niet Ingezetenen, will be able to apply for a DigiD. They will be able to do so digitally via the existing procedure for applications for a DigiD abroad, which is until now only available for Dutch citizens. The EU citizens will then be able to activate their DigiD with the special code they received from the DigiD foreign desk. In order to facilitate this, the Minister will create a legal basis and will implement the changes technically and process-wise. It is expected that this will be completed by October 2020, as of which these EU citizens will be able to apply for and receive a DigiD.

Read the letter to the parliament here (Dutch only).