The Netherlands II: Taxation of cross-border transfers of pension claims: Cases C-360/22 and C-459/22 (European Commission v The Netherlands): inconsistent caselaw but enhancing the internal market

Pensions are in the interest of both the elderly and young people. To have accumulated an adequate pension benefit after retirement against a reasonable price, one should start accumulating pension claims as early as possible. However, doing so is not always easy in cross-border situations. For example, one of my sons lives and works in Copenhagen. He is a Dutch national. He started working in Denmark after graduating in the Netherlands. In the context of his first employment with his Danish employer, the question of participating in a Danish pension scheme arose. He was advised not to join the pension scheme, inter alia, because if he were to leave Denmark, transferring such a scheme to another country was considered too complicated and not beneficial for either my son or his Danish employer. They decided not to join a Danish pension scheme. My son now needs to find an alternative to ensure that after retirement he receives sufficient pension benefits to provide for his retirement.
The connection with the recently decided cases to be discussed in this chapter is the alleged taxation of cross-border transfers of pension claims from the Netherlands to other EU and EEA Member States. The European Commission initiated infringement proceedings against the Netherlands, claiming that the Dutch system is inconsistent with EU and EEA law. The CJEU followed the European Commission to the extent that it decided that the Dutch legislation concerning the transfer of supplementary pension claims accumulated via an employer is incompatible with the freedom of movement of workers.
The chapter has been structured as follows. I firstly present benchmarks to which the decisions are tested. Next, I present the relevant national pension and tax laws. Thereafter, the CJEU’s considerations are described. Thereupon, I comment the decisions. In this respect, the following questions are discussed:
1. Is a disadvantage involved in Case C-360/22?
2. If there is a disadvantage in Case 360/22, does this disadvantage constitute an obstacle or a restriction/a discrimination?
3. What is/are the objective(s) of the Dutch non-redemption/limited redemption rules in Case 360/22?
4. Is there a restriction/discrimination in Case C-459/22?
5. If the Dutch rules constitute a restriction/discrimination, is there a rule of reason for the different treatment?
a. Is there one (or more) overriding reason(s) in the public interest justifying the different treatment?
b. Is the different treatment appropriate to fulfil the objective(s) of the Dutch pension law and tax law rules?
c. Is the different treatment proportional, considering the objective(s) of the Dutch pension law and tax law rules?
Since the judgements and the reasonings included in them are closely connected, I try to discuss them together as closely as possible. This means whereas the court’s reasonings are identical or very similar, I will not discuss them separately. The contribution is closed by summarizing my main conclusions.