News

These are two judgments of the Den Bosch Court of Appeal, both dated 16 July 2024, with very different outcomes. Find in the comments. Both cases concerned whether the company was subject to the Fashion, Interior, Carpet and Textile Industry Pension Fund (𝐁𝐩𝐟 MITT). It concerned a company in promotional items and a wholesale cleaning products business (including sales of corporate clothing with company logo).

There is no ‘principal criterion’ in the commitment decree. Thus, the scope of activities covered does not matter. On this basis, both companies were covered by Bpf. MITT.
Both companies then argue that after r standards of reasonableness and fairness it is unacceptable that Bpf. MITT invoking the compulsory nature of the Act (Art. 6:2 para. 2 BW).
The court rejected a claim to this by the company of promotional items, among other things, on the grounds that the company does not have a pension scheme and that it is able to afford to pay the contributions.

On the same day, the court of appeal did grant the appeal to Section 6:2(2) of the Civil Code by the wholesaler in cleaning products. The court of appeal found it particularly important that the extent of the application of the company logos is a (very) minor activity compared to the rest of the business in which 40,000 products are sold (which have nothing to do with textiles). Other relevant circumstances are: the very limited contribution to total turnover (0.93% in 2021); the limited number of employees engaged in the activity (6 out of 90); the competitive position of the company; as well as that the company has its own (more or less) equivalent pension scheme.

Conclusion: a company will quickly fall under an industry-wide pension scheme if it does not contain a ‘principal criterion’. It is possible in exceptional cases to get out of this if application of the pension scheme would be unacceptable by the standards of reasonableness and fairness. Relevant here include: the scope of the activities covered by the scope (by turnover/products/ FTEs), whether the company has its own (cheaper) pension scheme and what the (financial/business) consequences would be of applying the compulsory scheme.