District Court of The Hague judgment regarding the adult daughter of a UN-ICTY staff member’s periods of non-AOW accrual.
The District Court of The Hague has rendered judgment regarding the adult daughter of a UN-ICTY staff member’s periods of non-AOW accrual. A redacted copy of the decision can be found here and in the database of court judgements in the Netherlands (www.rechtspraak.nl).
The applicant (“eiseres”) was contesting the decision (“beschikking”) issued by the Social Insurance Bank (Sociale Verzekeringsbank (SVB)), the government agency administrating the Netherlands state pension system (AOW). The SVB decision indicated that the applicant was not accruing AOW rights during a 7 year period when the applicant was part of her mother’s household, resulting in a 14% reduction in her future AOW pension, as the result of her mother’s employment with the ICTY (and ICTR). The applicant had submitted a request to the SVB for an overview of her AOW accrual to date, resulting in the aforementioned decision.
This reduction in the applicant’s future AOW pension was imposed by the SVB as a result of the application of Article XXVII, paragraph 2 of the Headquarters Agreement (also referred to as the Host State Agreement) concluded between the United Nations and the Kingdom of the Netherlands in 1994 for the establishment of the ICTY in the Netherlands, together with Article 14 of the Besluit uitbreiding en beperking kring verzekerden volksverzekeringen. This Headquarters Agreement was published in the Dutch Treaty Series (Tractatenblad), Vol. 1994, nr. 189.
The District Court held that the reduction in the applicant’s future AOW pension violated rights guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and the International Covenant on Civil and Political Rights and nullified the contested decision. The respondent in the case, the SVB, was instructed by the District Court to provide the applicant with a new decision regarding her AOW accrual. This court decision was subject to appeal. We do not know whether the SVB appealed it or not.
Who stands to benefit from this court decision?
A dependent who is an EU citizen with a Ministry of Foreign Affairs ID card could argue in further litigation that this court decision has implications for him/her.
Such non-employed IO dependents with Netherlands citizenship or residency affected by this court decision are (i) non-employed children age 15 or older living with their IO parent and (ii) non-employed spouses/partners of IO staff members residing in the same household. These IO dependents may invoke the court’s decision to challenge any periods of AOW non-accrual linked to the relative’s employment with such IO. For example, a 64 year old Dutch spouse of a staff member who has received a decision from the SVB regarding his future AOW pension (decision reflecting a reduced AOW pension as a result of his/her spouse’s IO employment) may submit an administrative appeal (“bezwaar”) to the SVB to challenge the reduction in his/her future AOW, with the appeal referring to the court’s decision.
Who is not affected by this court decision?
– IO dependents employed in the Netherlands with a non-IO employer or self-employed, as well as IO dependents legally receiving a Netherlands social security entitlement. These dependents are already covered by the Netherlands system of social security and thus are already enjoying AOW accrual.
– IO dependents who are non-EU citizens holding a MFA ID card. These dependents remain excluded from AOW accrual as the AOW law requires residency in the Netherlands under Art. 8 a-e or l of the Aliens Law as a prerequisite for AOW accrual.
Persons who wish to receive an AOW accrual decision can find the applicable form “Aanvraag verzekeringstijdvakken AOW” on the SVB’s internet site, http://www.svb.nl.