Liability of (former) director for failure to pay pension premiums after notification of inability to pay!

Supreme Court 21 May 2021,19/05444, ECLI:NL:HR:2021:754

Pension plans administered by sectoral pension funds are subject to the Sectoral Pension Fund (Obligatory) Membership Act 2000 (‘Act Bpf’). Article 23  Act Bpf concerns the joint and several liability of (former) directors for the non-payment of pension premiums. If a company (legal entity) cannot pay pension premiums for its employees, the company should notify the sectoral pension fund immediately (paragraph 2). If the legal entity files this notification of its inability to pay (in time), its director will be liable for unpaid pension premiums (only)  if it is plausible that non-payment of the premiums is the result of manifestly improper management attributable to that director in the three-year period preceding the time of notification (paragraph 3). If the legal entity does not file notification (in time) of its inability to pay, its director will be liable for unpaid pension premiums, on the understanding that non-payment is suspected to be attributable to that director and that the three-year period is deemed to commence at the time when the entity is in default.  Admitted to refute the suspicion is the director who can argue convincingly that non-compliance with the duty of notification is not attributable to him/her (paragraph 4).

This case concerns the liability of a (former) director of a transport company for outstanding pension premiums for 2008, 2009 and 2010, although the notification of the inability to pay to the sectoral pension fund was filed in time on 4 December 2009. The director’s liability, therefore, not only relates to manifestly improper management in the three years preceding the notification but also to the period after that notification was filed (!).

In a previous ruling in this matter the Supreme Court held in 2017 that if a notification of the inability to pay has been filed, there is no need to refile such notification as long as there is no payment arrears, unless upon receiving payment the sectoral pension fund informs the party liable to pay that the fund no longer considers that party unable to pay.   

In this case, the Supreme Court added to this reasoning – in summary – the consideration that the mere notification of the inability to pay is not a licence to not pay pension premiums in a general sense – after filing the notification of its inability to pay at the end of 2009 the transport company had been making sales for months but the arrears in premiums had only increased – and that manifestly improper management should be assessed over the three years prior to the time when the notification of the inability to pay a specific  premium should have been filed.  

In short: the liability of (former) directors for outstanding pension premiums can be based on manifestly improper management in the period after the filing of a notification of inability to pay.

Advice and guidance of BUREN can help you take the right steps in case of (potential) directors’ liability. Please do not hesitate to contact us.