ASAP
Dutch Supreme Court Weighs in on Mandatory Participation in the Healthcare Sector’s Pension Fund
On September 19, 2025, the Dutch Supreme Court ruled on whether Medux, a company that sells mobility aids, is required to join the healthcare and welfare sector pension fund (Pensioenfonds Zorg en Welzijn, “PFZW”) under the Act on Compulsory Membership in a Sectoral Pension Fund 2000 (Wet verplichte deelneming in een bedrijfstakpensioenfonds 2000, “Bpf 2000”) and the Order on Compulsory Membership in the Healthcare and Welfare Sector Pension Fund (“Compulsory Membership Order”).
In 2018, PFZW informed Medux that it had to join the PFZW because one of its main activities at the time explicitly fell within the scope of the Compulsory Membership Order. Medux, however, argued that it was not a healthcare institution and therefore was not part of the healthcare sector. Moreover, it did not fall within the scope of the Collective Labor Agreement for Nursing Homes, Care Homes and Home Care (cao voor Verpleeg-, Verzorgingshuizen en Thuiszorg, “CLA VVT”). This was not in dispute in this particular case.
The Dutch Supreme Court had to consider the following questions in this case:
- Can the scope of a compulsory membership order differ from the scope of a collective labor agreement?
- Can an employer that cannot become a member of an employer’s organization in a particular sector still be covered by a compulsory membership order for that sector?
Appeal
Both the Subdistrict Court and the Appellate Court found that Medux did fall within the scope of the Compulsory Membership Order. According to the Appellate Court, it is the business activities that are the determining factor in this regard. Employers that provide care or assistance, such as the loan of nursing supplies, fall within the scope. This was not altered by the fact that Medux did not call itself a healthcare institution. The background to this is that, at the time, the Compulsory Membership Order was not linked exclusively to a particular type of healthcare institution, but rather to the nature of the activities.
In addition, the Appellate Court found that the Compulsory Membership Order itself defines what is meant by “healthcare” and, at the time, this included the loan of nursing supplies. The social partners had not gone beyond their “remit” by agreeing that employers that were not healthcare institutions but did lend nursing supplies also fell within the scope. Medux’s argument that the Bpf 2000 speaks of compulsory membership “in the sector” and that this relates only to the healthcare sector did not hold water, according to the Appellate Court. Moreover, in assessing whether Medux was subject to the Compulsory Membership Order, the Appellate Court did not consider it decisive that Medux was not subject to the CLA VVT.
Appeal in cassation
In cassation, Medux argued that the Appellate Court had erred in ruling that it was covered by the Compulsory Membership Order, as the Appellate Court should have given more weight to the fact that Medux was not subject to the CLA VVT. Medux also argued that it could not be covered by the Compulsory Membership Order because it was not represented by an employer’s organization in the healthcare sector.
The Dutch Supreme Court did not agree with this, instead agreeing with the Appellate Court that although the scope of a compulsory membership order is often closely related to the scope of a collective labor agreement within a particular sector, there is no rule of law that requires the two scopes to be identical. Therefore, the Appellate Court had been correct in finding that the fact that Medux was not covered by the CLA VVT was not decisive in determining whether it was subject to the Compulsory Membership Order.
Medux’s argument that it was not represented by an employer’s organization in the healthcare sector and that it could not be admitted to such an employer’s organization also failed, because the law does not state that only employers that are members of a relevant employers’ organization can be covered by a compulsory membership order.
Relevance to practice
This judgment underlines the fact that companies cannot assume that if their business activities do not fall within the scope of a collective labor agreement and/or they cannot become members of the employers’ organization for a particular sector, they are not covered by the scope of that sector’s pension fund.
