Invalidity, Old-Age and Survivors' Benefits Convention, 1967 (No. 128) - Netherlands (Ratification: 1969)

Direct Request (CEACR) - adopted 2022, published 111st ILC session (2023)

In order to provide a comprehensive view of the issues relating to the application of ratified Conventions on social security, the Committee considers it appropriate to examine Conventions Nos 102 (minimum standards), 121 (employment injury benefits), 128 (invalidity, old-age and survivors’ benefits), and 130 (medical care and sickness benefits) together.

The Committee notes the observations of the National Federation of Christian Trade Unions (CNV), the Netherlands Trade Union Confederation (FNV), and the Trade Union Federation for Professionals (VCP), received on 31 August 2021 and 31 August 2022.

Article 69 of Convention No. 102, Article 32 of Convention No. 128, and Article 28 of Convention No. 130. Suspension of benefits. The Committee takes due note of the information provided by the Government concerning the suspension of cash benefits in case the beneficiary is incarcerated in prison or in a judicial facility.

Article 69(f) of Convention No. 102. Unemployment benefit. Sanctions for misconduct. The Committee takes due note of the information provided by the Government indicating the 2018 guidelines of the Highest Administrative Court, according to which suspension of unemployment benefits may be applied only when the unemployment occurred due to wilful misconduct.

Article 72(2) of Convention No. 102. Collective financing of social security schemes. The Committee takes due note of the statistical data provided by the Government concerning financing of the social security schemes.

Article 14 of Convention No. 121. Assessment of incapacity for work. The Committee notes the observations of the FNV, the VCP, and the CNV indicating that the rules for the assessment of incapacity for work are obsolete and that, as a result of the current assessment procedure, persons with substantial or even severe limitations may be considered as persons with less than 35 per cent incapacity for work under the Work and Income (Employment Capacity) Act of 2006 (WIA). The Committee requests the Government to provide information on the procedure and criteria for the assessment of incapacity for work applied for the purpose of entitlement to benefits under the WIA.

Article 15 of Convention No. 128. (i) Increase in pensionable age. With respect to its previous comments concerning the increase in pensionable age beyond 65 years, the Committee notes the indication by the Government that the pensionable age under the national old-age pension scheme (AOW) is scheduled to increase up to 67 years in 2024 and will be linked to life expectancy thereafter. The Committee further notes from the information provided by the Government in its 2019 report on the application of the European Code of Social Security, and its Protocol, that the share of persons over 55 years in the labour market has substantially increased in the past two decades. Furthermore, the percentage of persons over 65 years will have increased from 15 to 26 per cent by 2040. The Committee also observes from the website of the Statistics Netherlands (CBS) that in 2040, the remaining life expectancy of 60-year-olds will have increased by around three years in comparison with 2016. In addition, the number of years without moderate or severe physical limitations will have increased from 16.3 to 20.6 years for women over 60 years and from 17.4 to 21.7 years for men over 60 years by 2040. The Committee takes due note of this information.

(ii) Early retirement for workers in arduous and unhealthy occupations. The Committee notes from the Government’s report on the application of the European Code of Social Security and its Protocol, that the national old-age pension scheme (AOW) does not provide for early retirement provisions. However, workers can receive payments before they are entitled to a national old-age pension under the contractual early retirement scheme “Regeling vervroegde uitreding” (RVU scheme). The Committee observes that contractual early retirement arrangements can be concluded at individual, company, or sectoral level. According to recent figures, 33 per cent of the workers covered by a collective labour agreement had access to a contractual RVU scheme as of December 2021 and that, for another 10 per cent of these workers, the possibility of a RVU scheme is being discussed. The Committee further observes that the RVU scheme provides for the payment of a levy of 52 per cent with a temporal exemption till 2025 for workers who are 36 months or less before the statutory pensionable age and provided that the gross payment does not exceed the amount of the AOW pension (the Lump Sum Payment, Early Retirement Scheme and Leave Savings Scheme Act of 2021).

The Committee notes the observations of the FNV and the CNV pointing out that the increase in pensionable age beyond 65 years is an unjust measure particularly for workers engaged in arduous and unhealthy occupations whose life expectancy is usually lower. The FNV considers that there is a need for a publicly funded permanent scheme to ensure early retirement for persons in hazardous work.

The Committee recalls that, as per Article 15(3) of the Convention, if the pensionable age is 65 years or higher, the age shall be lowered, under prescribed conditions, in respect of persons who have been engaged in occupations that are deemed by national legislation, for the purpose of old-age benefit, to be arduous or unhealthy. Taking into account the absence of early retirement provisions under the national old-age pension scheme (AOW) and the low coverage of the contractual RVU scheme, the Committee requests the Government to take measures to ensure that workers in arduous and unhealthy occupations are entitled to a full pension, meeting the requirements of Article 26 on level of benefits, at an age earlier than 65, in line with Article 15(3) of the Convention. For this purpose, the Committee strongly recommends to the Government that it considers the introduction of a permanent statutory early retirement scheme particularly for workers in arduous and unhealthy occupations. It also requests the Government to continue to provide information on the scope and the extent of the contractual RVU scheme, including the statistical data on its coverage.

Article 29 of Convention No. 128. Adjustment of benefits to the cost of living. The Committee takes due note of the information provided by the Government regarding the indexation of old-age and invalidity benefits.

Direct Request (CEACR) - adopted 2017, published 107th ILC session (2018)

The Committee notes the consolidated report (CR) on the application of the ILO social security Conventions ratified by the Netherlands (Conventions Nos 12, 102, 121, 128 and 130) and of the European Code of Social Security (ECSS), for the period 2006–16. It notes the Government’s statement in the letter transmitting the 50th annual report on the ECSS that the CR will be completed and updated before January 2018. The Committee hopes that the updated CR will contain full explanations and references to concrete provisions of national laws and regulations showing how effect is given in particular to the provisions of the Conventions mentioned below, on which the CR contains no or insufficient information.

The Committee notes the observations communicated in September 2012 by the Netherlands Trade Union Confederation (FNV), the National Federation of Christian Trade Unions (CNV), and the Trade Union Confederation of Middle and Higher Level Employees’ Unions (MHP) on the application of Convention No. 121, which highlight provisions of the Work and Income (Employment Capacity) Act of 2006 (WIA) and their incompatibility with the requirements of the Convention, as well as the deficiencies of their implementation in practice, as well as the observations communicated in August 2016 by the FNV and the CNV concerning the application of Conventions Nos 102, 128 and 130. The issues raised by the trade union organizations concerning the alleged negative impact on certain categories of protected persons of the changes in the legislation on old-age pensions, sickness benefit and health insurance, including enforcement and fraud, will be considered by the Committee on the basis of the updated text of the CR, which should include appropriate explanations with concrete references to the new legislative provisions in these social security branches.

Adjustment of benefits to the cost of living (Part XI of the CR). Article 29 of Convention No. 128. The Committee requests the Government to supply the statistical data on the adjustment of the old-age, invalidity and survivors’ benefits over the period of 2011–16, in accordance with the report form on the Convention adopted by the ILO Governing Body.

Part XIII of the CR (Suspension of benefits); Article 69 of Convention No. 102; Article 22 of Convention No. 121; Article 32 of Convention No. 128; and Article 28 of Convention No. 130. The Committee requests the Government to explain in detail the grounds for the suspension or reduction of benefits applied in national law and practice with regard to social security schemes giving effect to Parts II (Medical care), V (Old-age benefit), VI (Employment injury benefit), IX (Invalidity benefit) and X (Survivors’ benefit) of the CR.

Collective financing of social security schemes (Part XIII of the CR). Article 72(2) of Convention No. 102. The Committee requests the Government to demonstrate that the total of the insurance contributions borne by the employees protected do not exceed 50 per cent of the total of the financial resources allocated to the protection of employees and their wives and children, as requested in the report form on the Convention.

Part IV of the CR (Unemployment benefit). Sanctions for misconduct. Article 69(f) of Convention No. 102. According to section 24(2) of the Unemployment Insurance Act, an employee is considered to be culpably unemployed when the unemployment occurred due to compelling reasons as mentioned in section 678 of Book 7 of the Civil Code and the employee is culpable for becoming unemployed. Among such compelling reasons, section 678(k) and (l) mentions cases when the employee “neglects his duties in a flagrant way” or “is not able to perform his duties due to his own recklessness”. Taking into account that neglect and recklessness on the part of the employee leading to dismissal may not necessarily constitute “wilful misconduct”, which alone may be sanctioned under Article 69(f) of the Convention, the Government in a special letter has drawn the attention of the Institute for Employee Benefit Schemes (UWV) to the international obligation of the Netherlands to apply sanctions only in cases where neglect or recklessness amounted to wilful misconduct directly causing unemployment of the person concerned. In its 2011 Resolution on the application of the European Code of Social Security, the Committee of Ministers of the Council of Europe asked the Government to monitor the effect of this letter and to compile statistics on the number of such cases. According to the statistics supplied in the 50th annual report on the Code, in 2016 misconduct was found in 96,160 cases. In 53,630 cases the benefit was temporary suspended for 66 days on average, and in 5,942 cases payment was permanently discontinued. The Committee notes from these numbers that sanctions for misconduct are being used by the UWV on a large scale without any legal safeguards or assurances from the Government that they are being applied only to cases of wilful misconduct. Taking into account that neither Convention No. 102 nor the ECSS permit to leave the decision making on the application of sanctions to the entire discretion of the social security administration, the Committee once again requests the Government to highlight those provisions in the guidelines to the deciding officers issued by the UWV that would formally require them, before deciding on the suspension of benefit, to ascertain that the misconduct was wilful and has directly caused the contingency in question.

Part V of the CR (Pensionable age), Article 15 of Convention No. 128. The Committee notes that in 2017 the pensionable age was raised to 65 years and nine months and will gradually reach 67 years in 2021. As from 2022, it will be linked to life expectancy. With regard to the international regulations on pensionable age, the Committee recalls that Article 26(2) of the ECSS allows the pension age of 65 years to be exceeded if the number of residents having attained the increased age is not less than 10 per cent of the number of residents under that age but over 15 years of age. Convention No. 102 in that case permits the pension age to be increased only with due regard to the working ability of elderly persons in the country. Article 15 of Convention No. 128 is more explicit in this respect obliging the competent authority fixing the higher age to take into account the demographic, economic and social criteria, which shall be demonstrated statistically, and to establish a lower pension age in respect of persons who have been engaged in occupations that are deemed by national legislation, for the purpose of old-age benefit, to be arduous or unhealthy. Taking into account that the capacity for work of manual employees, who constitute the main category of the persons protected by the ECSS, is likely to decrease substantially after the age of 65, the Protocol to the ECSS established a higher standard of protection by expressly prohibiting the increase of the pension age above 65 years where the pension scheme protects employees only. In the light of these provisions, the Committee requests the Government to justify the increase of the pensionable age beyond 65 years by reference to the demographic, economic and social criteria, which demonstrate statistically the working ability and the employability of elderly persons in the Netherlands. The Committee points out that, within the legal framework of Convention No. 128, the working ability of the elderly persons in the country concerned should be determined with respect to those persons who would have duly acquired the right to the old-age pension at 65 years, but have now to wait for its realization until such higher pension age as is currently fixed by the national law. The indicators generally used to compare the health status of populations through time and in the assessment of healthy ageing and fitness for work include the healthy life expectancy (HLE) which pertains to life spent in good health, and disability-free life expectancy (DFLE) which corresponds to life free from a limiting chronic illness or disability. The HLE and the DFLE of elderly persons as the measure of their capacity for work beyond 65 should be calculated in particular with respect to the categories of unskilled workers engaged in manual operations and physical labour, including in onerous and hazardous occupations entailing premature physical ageing. These categories could be obtained by using the Standard Occupational Classification (SOC) 2010 Sub-Major Group 91 – Elementary Trades and Related Occupations. From the labour market point of view, increasing the age of retirement would be justified only if such categories of elderly workers conserve not only their physical ability but also a fair chance to stay in the labour market and maintain their employability. Therefore, the Committee requests the Government to include statistics on the participation and unemployment rate for people aged 65–67 years and belonging to the SOC Sub-Major Group 91. The Committee also requests the Government to indicate how effect is given to Article 15(3) of Convention No. 128, which requires lowering the pensionable age for persons who have been engaged in occupations deemed to be arduous or unhealthy.

Part VI of the CR (Conditions of entitlement to the employment injury benefit), Articles 9 and 14 of Convention No. 121. In its observation of 2011, the Committee has drawn the Government’s attention to the incompatibility of certain provisions of the WIA with the requirements of the Convention. In their observations of 2012, the three national trade unions – the FNV, the CNV and the MHP – encouraged the Government “to find, in dialogue with the trade unions, a solution to the problems of the victims of employment injuries arising from the non-compliance by the Netherlands with Convention No. 121”. The Committee notes from the Government’s report of 2016 that there were no new policy developments with respect to the WIA since 2012 and that the Government has not pursued the dialogue with the trade unions on this subject. As the situation in law and policy has not changed, the Committee notes with regret that the cash benefits provided under the WIA for victims of employment injuries do not ensure the level of protection guaranteed by the Convention. Recalling the Government’s general responsibility under Article 25 of Convention No. 121 for the due provision of the benefits provided in compliance with this Convention and requests it to indicate measures taken or contemplated, in consultation with the organizations representing the persons protected, to bring the overall protection offered by the cash benefits granted under the WIA to the level guaranteed by the Convention.

Direct Request (CEACR) - adopted 2012, published 102nd ILC session (2013)

With reference to its previous comments, the Committee notes the information and replies provided by the Government’s report for the period ending 30 June 2011, as well as the more recent information contained in the 45th annual report on the application of the European Code of Social Security for the period ending 30 June 2012. With regard to the issues raised under Part V (Standards to be complied with by periodical payments) of the Convention, which are similar to those raised under Part XI of the Social Security (Minimum Standards) Convention, 1952 (No. 102) and Part XI of the European Code of Social Security, the Committee would like the Government to refer to the direct request it has formulated under Convention No. 102.

[The Government is asked to reply in detail to the present comments in 2013.]

Direct Request (CEACR) - adopted 2007, published 97th ILC session (2008)

With reference to its observation of 2006, the Committee notes the information supplied by the Government in its report, as well as the comments made by the Netherlands’ Trade Union Confederation (FNV).

Part II (Invalidity benefit), Article 10(a) and Article 27 of the Convention. The Committee notes that the amount of the invalidity benefit is calculated in the report under Article 27 on condition that the family of the beneficiary has no other income or social security benefits. As such a condition is not envisaged by this Article, the Government is asked to indicate whether the invalidity benefit provided under the terms of the Work and Income (Employment Capacity) Act of 10 November 2005 (WIA) to a wholly and permanently incapacitated employee (IVA benefit) is means tested and to what extent family income other than the earnings of the beneficiary is taken into account. The Committee further notes that the report gives no information on Article 11 of the Convention. The Government is asked to indicate whether IVA benefit is conditional upon a minimum period of contribution or employment, as well as on the age of the beneficiary when the contingency occurred (previously the initial WAO benefit was not available for disabled workers under 33 years of age), and to provide comparable calculation of the IVA benefit with respect to a beneficiary who has attained the age of 30 years at the time when invalidity occurred.

Part III (Old-age benefit). (a). The Committee notes that, under the National Old Age Pensions Act (AOW), all residents over 65 years of age receive an old‑age pension, which is a fixed amount paid in full after 50 years of residence in the country. The pension accrues from the age of 15 until the age of 65 each year by 2 per cent of the full amount of benefit. Each year during which the person concerned was not insured results in a 2 per cent reduction of the full amount of the pension. The replacement rate of the old-age pension is calculated in the report for the amount of the pension received by couples after 50 years of insurance, in relation to the reference wage of an ordinary adult male labourer determined under Article 27(4)(a) of the Convention. The report gives no information concerning Article 18 of the Convention. The Committee would therefore like the Government to show in its next report that the amount of the Dutch national old-age pension for a married couple composed of a man with dependent wife of pensionable age after 20 years of residence would attain the level of 45 per cent prescribed by the Convention.

(b). The Committee notes the Government’s statement that the Work and Social Assistance Act (WWB) can be taken into account when the calculation of the amount of the national old-age pension is made on the basis of Article 28 of the Convention. The WWB provides a minimum income for all persons residing legally in the Netherlands with inadequate financial resources to meet their essential living costs. Under the WWB, persons over 65 years of age with incomplete national old-age pension are entitled to a top-up benefit, which would increase their pension to the same amount as persons that receive a complete national old-age pension. Married couples are entitled to a benefit related to 100 per cent of the net statutory minimum wage. The Committee also notes that the FNV continues to be in disagreement with the point of view of the Government that the AOW in combination with WWB brings Dutch legislation fully into conformity with Convention No. 128. The FNV is of the opinion that the period of 50 years to qualify to full AOW pension is unacceptably long in comparison with the surrounding countries and given the period during which the entitlements to a complementary pension are built up. On the other hand, the WWB means test is too far-reaching: all income is subject to the means test and only a small amount of additional pension is not taken into account (17.35 euros for a single person and 34.70 for a couple in 2007). The same applies to property, apart from a small amount for savings (5,245 euros for a single person and 10,490 for a family). The FNV is of the view that the exempted amounts are far too low for pensioners who made savings for their old age.

The Committee observes that the scope of persons protected under Part III of the Convention is determined in the report in relation to Article 16(1)(c), which covers all residents, or residents whose means during the contingency do not exceed prescribed limits. Such coverage of the scheme permits to take into consideration benefits provided to all residents, as well as means-tested benefits which are provided as of right to those residents whose means exceed the substantial amounts determined under Article 28 of the Convention. The Committee would therefore invite the Government, if it considers it necessary, to include in the calculation of the level of the old-age benefit requested above any complementary social assistance benefit provided under the WWB to a married couple where both spouses are over 65 years of age and to specify the nature of the means test and the substantial amounts prescribed under Articles 16(1)(c) and 28(b) of the Convention. It recalls in this respect that, notwithstanding the length of the qualifying period laid down in the national legislation for the entitlement to a full pension, the pension at the level guaranteed by the Convention should be paid already after completion of the qualifying period of 30 years of contribution or employment, or 20 years of residence.

(c). The FNV questions whether the regulations regarding the spouse allowance paid to a pensioner for his spouse younger than 65 years of age are in conformity with the provisions of the Convention. The Committee points out that the standard beneficiary for Part III of the Convention is a “man with wife of pensionable age”, whereas the spouse allowance is paid for the wife younger than the pensionable age in the Netherlands.

Part IV (Survivors’ benefit) in conjunction with Part V (Standards to be complied with by the periodical payments). (a). The Committee notes that while ANW survivors’ benefit is a means-tested benefit which covers all residents, the calculation of its replacement level in the report is made on the basis of Article 27, which normally applies to schemes covering employees or economically active population. In establishing the scope of protection of the survivors’ benefit, the report refers to Article 22, paragraph 1(c), of the Convention, which covers residents whose means during the contingency do not exceed limits prescribed in such a manner as to comply with the requirements of Article 28 of the Convention. In this respect the report form on the Convention adopted by the Governing Body gives the following instruction under Article 23(b): “If, in implementing Article 22, recourse is had to the provisions of subparagraph (c) of paragraph 1 for defining the scope of protection, please furnish under this Article information in the form set out in Titles I and IV under Article 28 and in Title I under Article 27.” The Committee would be grateful if the Government would follow this instruction in calculating the level of the survivors’ benefit in its next report in accordance with Article 28 of the Convention. Please explain the means test applied to the survivors’ benefits with respect to the widow and the children of the deceased. With regard to the family allowances paid during employment and during the contingency, please explain whether the child tax credit is paid during the contingency in addition to a semi-orphan pension and how the semi-orphan pension varies according to the age of the child and the income situation of the eventual caretaker of the child.

(b). With respect to the widow’s benefit, the FNV considers that Article 28(b), which allows means testing of benefit only where the means of the family exceed prescribed substantial amounts, is not complied with because the income from the unemployment or invalidity benefit will be fully and not partially deducted from the survivors’ benefit, leaving no substantial amounts at the disposal of the beneficiary. In the light of these comments, please calculate the level of the survivors’ benefit paid to a widow with two children who is in receipt of the unemployment benefit paid on the basis of her previous wage equal to the reference wage determined under Article 27 of the Convention.

(c). The FNV also alleges that the fact that a widow loses her survivors’ benefit the day the youngest child turns 18 is not in accordance with the terms of the Convention. The Committee recalls that, according to Article 21(3)(b), the widow should continue to receive the benefit as long as she is caring for a dependant child of the deceased. It therefore asks the Government to indicate whether an exception is made with respect to children over 18 years of age covered by the Convention in accordance with Article 1(h)(ii).

Part V (Standards to be complied with by periodical payments). The report indicates that the ordinary adult male labourer is selected according to Article 27(4)(a) as “a person deemed typical of unskilled labour in the manufacture of machinery other than electrical machinery”; an ordinary male labourer’s wage is equal to the amount of the statutory minimum wage, which was 1,176.47 euros net per month on 30 June 2007. The FNV points out that no explanation is offered as to why the statutory minimum wage is chosen, as most ordinary adult male workers in the manufacture of machinery earn more than the minimum wage. It also states that the minimum wage was frozen in 2004 and 2005, which was not the case for the real wages of the ordinary workers in the Netherlands. In reply, the Government states that the wage of an ordinary labourer “is the same amount as the minimum wage (on average)”. The Committee recalls that, in accordance with Article 27(7), the wage of the ordinary labourer shall be determined on the basis of the rates of real wages received for normal hours of work fixed by collective agreements, by or in pursuance of national legislation, where applicable, or by custom, including cost‑of-living allowances if any. The Committee would therefore like the Government to provide statistics on the actual rates of wages for normal hours of work in manufacture of machinery other than electrical machinery.

Observation (CEACR) - adopted 2006, published 96th ILC session (2007)

The Committee notes that the Government’s report has not been received. It is therefore bound to repeat its previous observation which read as follows:

With reference to its previous observation concerning the extensive comments made by the Netherlands’ Trade Union Confederation (FNV), in a letter dated
25 August 2003, on the application of the various provisions of the Convention, the Committee notes the Government’s report for the period 1 June 2003 to 1 June 2005, which replies to some of the issues raised. This report and the replies of the Government were the subject of a further communication from the FNV dated
15 September 2005, in which the Confederation expresses concern about the application of most of the Articles of the Convention and provides copies of the relevant decisions of the Central Court of Appeal (CRvB). This communication was transmitted to the Government by the Office on 20 October 2005. Taking into account that the Government’s report on the application of the Convention is due in 2006, the Committee hopes that it will not fail to provide detailed information on all the points raised, including statistical data, as well as an English translation of the relevant provisions of the legislation. In the meantime, taking into account the extensive and complex nature of the problems raised by the FNV, the Committee wishes to remind the parties that they can have recourse to the technical services of the Office, which might help to clarify the issues in question. In this respect, the Committee also refers to the questions raised in its direct request of 2002, which it will consider together with the Government’s next report.

The Committee hopes that the Government will make every effort to take the necessary action in the very near future.

Observation (CEACR) - adopted 2005, published 95th ILC session (2006)

With reference to its previous observation concerning the extensive comments made by the Netherlands’ Trade Union Confederation (FNV), in a letter dated 25 August 2003, on the application of the various provisions of the Convention, the Committee notes the Government’s report for the period 1 June 2003 to 1 June 2005, which replies to some of the issues raised. This report and the replies of the Government were the subject of a further communication from the FNV dated 15 September 2005, in which the Confederation expresses concern about the application of most of the Articles of the Convention and provides copies of the relevant decisions of the Central Court of Appeal (CRvB). This communication was transmitted to the Government by the Office on 20 October 2005. Taking into account that the Government’s report on the application of the Convention is due in 2006, the Committee hopes that it will not fail to provide detailed information on all the points raised, including statistical data, as well as an English translation of the relevant provisions of the legislation. In the meantime, taking into account the extensive and complex nature of the problems raised by the FNV, the Committee wishes to remind the parties that they can have recourse to the technical services of the Office, which might help to clarify the issues in question. In this respect, the Committee also refers to the questions raised in its direct request of 2002, which it will consider together with the Government’s next report.

Observation (CEACR) - adopted 2004, published 93rd ILC session (2005)

The Committee notes the communication dated 25 August 2003 from the Netherlands’ Trade Union Confederation (FNV), which contains extensive comments on the application by the Netherlands of the various provisions of the Convention. This communication, which was transmitted to the Government by the Office on 29 September 2003, contains a copy of the letter addressed by the FNV to the Dutch Ministry of Social Affairs and Employment concerning the Government’s report on the Convention for the period from 1 June 2001 to 1 June 2003. In a letter dated 28 August 2003, the Government informed the Office that it has received FNV’s comments on this report and needs some time to look into the question and to adjust the corresponding parts of its report. The said report was received in the ILO on 20 October 2003. The report however contained no reference whatsoever to the FNV’s comments and up till now no reply to these comments has been received from the Government.

The FNV’s comments concern the application in law and practice of Parts III (Old-Age benefit) and IV (Survivors’ benefit) of the Convention. As far as the General Old-Age Pensions Act (AOW) is concerned, the FNV refers in particular to the advisory opinion solicited by the Parliament from the Dutch Social and Economic Council (SER), which suggested reconsidering the qualifying period for the full AOW benefit (50 years of residence) in view of the international commitments of the Netherlands. The Trade Union Confederation alleges also that some provisions of the General Survivors’ Benefit Act (ANW) do not comply with the requirements of the Convention and that this fact was long brought to evidence by several legal experts, as well as in several important court rulings regarding the ANW, which directly invoked Conventions Nos. 121 and 128, including the decision of the Central Court of Appeal (CRvB) of 4 April 2003. The FNV indicates that after this court’s decision it wrote to members of Parliament and to the Government with an urgent appeal to change the legislation in order to comply with Convention No. 128. As none of these developments has been reflected in the Government’s report, the FNV considers that it is now time for the supervisory bodies of the ILO to express their views.

Taking into account the extensive and complex nature of the problems raised by the FNV, the Committee trusts that the Government will not fail to respond to the allegations made and will provide detailed information on all the points raised, including the text of the relevant documents and court rulings, to enable the Committee to assess the situation at its next session in 2005. The Committee also welcomes the willingness of the FNV to supply additional information on the problems raised. The Committee also refers to the questions raised in its previous direct request, which it will consider together with the future report of the Government.

[The Government is asked to reply in detail to the present comments in 2005.]

Direct Request (CEACR) - adopted 2002, published 91st ILC session (2003)

With reference to its previous comments, the Committee notes the information supplied by the Government in its report on the Convention for the period from 1 June 1996 to 1 July 2001, as well as in its annual reports on the application of the European Code of Social Security (ECSS). In reply to the questions raised in the Committee’s direct request of 1996, the Government supplies in the annex to the report the answers it has provided under the ECSS in 1998 on the same questions which the Committee has already noted in its subsequent conclusions under the ECSS. The Committee has also carefully studied the legislation and supplementary information provided by the Government together with its reports on Conventions Nos. 128 and 102, including the brochures "A short survey of social security in the Netherlands, January 2001", "The Dutch disablement benefits system", the report prepared for Parliament "Efforts to reintegrate the unemployed: An overview", etc. It has taken note of the statistics on the indexation of benefits supplied by the Government under Article 29 of the Convention. It would like to receive additional information on the following points.

Part II (Invalidity benefit) of the Convention. (a) Article 8. In its previous comments, the Committee asked the Government to provide information as to the practical application of the new definition of the contingency contained in section 18 of the Disablement Benefits Act (WAO), which takes into account the remaining labour skills and the capacities of the persons concerned. The Committee notes that the rules to determine the residual capacity and aptitude of the disabled person were laid down in the "evaluation" decree supplied by the Government. It further notes that the level of the disability benefits provided under the General Disability Pensions Act (AAW) and under the WAO depends on the degree of incapacity and that, according to the enclosed brochure "A short survey of social security in the Netherlands, January 2001", under the WAO, seven classes of incapacity are established. In view of the technical nature of these provisions, the Committee would like the Government to specify how the degree of incapacity is taken into consideration and what degree of incapacity has been prescribed for the contingency of "incapacity to engage in any gainful activity", as defined in Article 8 of the Convention.

(b) Articles 10 and 11 (in conjunction with Part V (Standards to be complied with by periodical payments)). In its previous comments, the Committee asked the Government to provide the statistical information on the level of the initial and continuing permanent disability benefit under the WAO. The Committee notes, however, that the calculations given in the Government’s report do not indicate to which benefit they refer - the initial benefit paid during the first stage, which is limited in duration up to six years, or the continuing benefit paid during the second stage, which can last until the retirement age. These calculations simply assume that the benefit amounts to 70 per cent of the reference wages without specifying the degree of incapacity, the age of the beneficiary at the onset of the contingency (workers under 33 years at the onset of the contingency are not entitled to the initial benefit paid during the first stage) and the qualifying period completed. The Government also refers to the additional information contained in the enclosed brochure "A short survey of social security in the Netherlands, January 2001". The Committee notes from this brochure that, the level of the benefit depends on the degree of incapacity and the age of the beneficiary and that for incapacity of 80 per cent or more, the amount of the initial benefit will constitute 70 per cent of 100/108 of the daily wage, and not of the full reference wage. As what concerns the continuing benefit paid during the second stage, its monthly amount is calculated on the basis of the minimum wage augmented by 8 per cent of the holiday allowance and divided by 21.75, plus an additional amount of 2 per cent of the difference between the beneficiary’s last wage and the minimum wage multiplied by the number of years between the age of 15 and the age of the beneficiary at the onset of the contingency. The percentage of the final benefit granted depends on the actual degree of incapacity. The Committee would be grateful if the Government would take these rules into account in calculating the level both of the initial and continuing disability benefits paid to a standard beneficiary who has completed a qualifying period of 15 years of contribution or employment between the age of 15 and the age at the onset of the contingency and whose last wage was equal to the reference wage determined in accordance with Article 26 or 27 of the Convention, as appropriate. The Government is also asked to refer to the comments under Part V below.

(c) With regard to the new provisions introduced in 1998 by the PEMBA Act in the financing of the invalidity insurance scheme for employees established by WAO, the Committee asks the Government to refer to its comments under Convention No. 102.

Part III (Old-age benefit), Articles 17 and 18 (in conjunction with Part V (Standards to be complied with by periodical payments)). The Committee notes that the level of the old-age pension is calculated in the report for the full pension provided to the beneficiary who has completed 50 years of insurance, instead of 30 years of contribution stipulated by Article 18, paragraph 1(a), of the Convention. It further notes that, according to the report, each missing year of contribution results in a 2 per cent reduction in the pension. The Committee understands therefore that, in order to correspond to a qualifying period of 30 years of contribution, the full old-age pension has to be reduced by 40 per cent. In certain cases, the resulting pension may be lower than the minimum social income in force in the Netherlands, in which case the beneficiary would be entitled to a supplement so that the old-age pension is brought up to the level envisaged by the National Assistance Act (ABW). The Committee would be grateful if the Government would indicate the conditions for the provision of this supplementary assistance to pensioners with an indication of whether the supplement is subject to a means test. The Committee hopes that the Government will also be able to provide an updated text of the ABW, with an indication of the relevant provisions.

As regards the exact amount of the benefit, the Committee notes that the amounts of the single person’s pension, couple’s pension and single parent’s pension given on page 5 of the report are lower than the amounts of the same pensions given on page 6. Moreover, both of the indicated amounts of the couple’s pension, which, according to the brochure "A short survey of social security in the Netherlands, January 2001" supplied by the Government, should be equal to 100 per cent of the minimum wage, are either lower or higher than the indicated minimum wage. In view of these inconsistencies, the Committee would ask the Government to recalculate the level of the old-age benefit for a standard beneficiary (man with wife of pensionable age) in its next report, on the basis of updated statistics for the same time frame and with the addition of a monthly amount of the holiday allowance, which is paid once a year. Please refer also to the comments made under Part V below.

Part IV (Survivors’ benefit), Article 21. With reference to its previous comments concerning the new survivors’ benefits scheme (General Surviving Relatives Act), which came into force on 1 July 1996, the Committee notes that the basic assumption of the Government is that a widow or widower should be capable of self-support in cases where there are no obstacles such as family responsibilities or incapacity for work. The category born before 1 January 1950 is considered to be a transitional category, and persons born after this date are considered to have a fair chance on the labour market and are provided with the full range of services for their reintegration into the labour market.

Article 22. According to the statistics given in the report, the number of economically active persons covered by the social security system in 1999 amounted to 7,097,000 and surpassed the total number of economically active persons in the Netherlands (6,364,000), thus increasing the scope of coverage of the survivors’ benefit to 111 per cent. The Committee observes that this data does not make sense. By comparing the data given in the report on the personal coverage of other social security branches, the Committee understands that the figure 6,364,000 refers not to the total number of economically active persons, as it is repeated in the report under Article 16 of the Convention, but to the total number of employees, as stated under Article 9. It would be grateful if the Government would confirm this understanding and provide updated calculation of the number of persons actually covered by the survivors’ benefit.

Article 23. The report states that pay, benefits and family allowance have been calculated on the same time base, i.e. January 1994. The amount of the minimum wage is then given for 1 June 1999, pay index is indicated for the period 30 June 1994-30 June 1999, and the amount of the survivors’ pension is given for the period 30 June 1992-30 June 1994. The Committee further notes that the Government was reporting for the period 1 June 1996-1 July 2001. In this situation the Committee is unable to understand for which period of time the Government calculates the level of the survivors’ benefit. It wishes to point out that such disparate data provided for different time frames inconsistent with the reporting period makes it impossible to calculate the level of the benefit properly and to ascertain whether it attains the minimum level prescribed by the Convention in the period covered by the Government’s report.

As to the statistical data used by the Government to calculate the level of the survivors’ benefit, the benefits’ amounts show a substantial decrease in comparison with the same data given by the Government in its previous report for the year 1994. Thus, the amount of the pension allocated to a widow with children has decreased from 2,419.72 guilders in 1994 to 2,261.34 guilders indicated in the present report, the amount of the family allowance has decreased from 470.40 guilders in 1994 to 390.91, and the amount of the holiday allowance paid to the widow has decreased from 158.25 guilders in 1994 to 118.76. The Committee would like the Government to explain the reasons of this decrease in benefits, if the figures given in the present report are more recent than those given for 1994. In this respect, it notes that the same amounts of the orphan’s pension and of the pension of a widow without children, which in the previous report were indicated for the year 1994, in the present report are given for 1992. As to the exactness of the data, the Committee would also like to point out that the amount of the minimum legal wage on page 5 of the report stands at 2,344.20 guilders, while on page 7 it is one guilder less. The Government might also wish to explain why the basic amount of family allowance applicable to families with two children between 6 and 11 years of age used in the calculation of the level of the invalidity benefit on page 3 of the report constitutes 1,060.10 guilders, while the same allowance in the calculation of the survivors’ benefit on page 7 amounts to only 390.91 guilders. The Committee notes in this respect that, according to the Government’s latest report on Convention No. 102, for the period 1996-2001, the amount of 1,060.10 guilders constitutes the double of the family allowance of 530.05 guilders per child per calendar quarter for families with two children between 6 and 12 years of age at the end of the specified period (unspecified, presumably 1999). As to the second amount of 390.91 guilders, the Committee recalls that this latter amount was cited in the 32nd annual report on the ECSS as the amount of family allowance payable to families with one child between 6 and 12 years of age per calendar quarter in June 1999. The Committee would be glad if in its future calculations of the level of the survivors’ benefit on the monthly basis the Government would use the monthly amount of the family allowance, instead of the quarterly amount as it has been doing previously, payable to families with two children under 6 years of age during the employment as well as during the contingency. Finally, taking into account that the survivors’ benefit include benefit of the surviving spouse, the dependent child allowance, the orphan’s benefit and the gross holiday allowance per month, the Committee would be grateful if the Government would explain in its next report the manner in which the survivors’ benefit for a standard beneficiary of this branch (a widow with two dependent children) is calculated. Please refer also to the comments made under Part V below.

Articles 25 and 33, paragraph 1. The Committee notes that, whereas Article 25 of the Convention requires survivors’ benefit to be granted throughout the contingency, under the terms of section 16, paragraph 1(c), of the General Surviving Relatives Act (ANW), survivors’ benefit comes to an end when the beneficiary reaches the age of 65 years, when he or she is entitled to an old-age pension by virtue of the General Old-Age Pensions Act (AOW). It also notes that, in accordance with section 24(2) of the ANW, the half-orphan allowance payable to a surviving spouse taking care of the child of the deceased also comes to an end when the spouse reaches the age of 65. The Committee recalls in this respect that, in accordance with Article 33(1) of the Convention, when the survivors’ benefit is substituted by the old-age benefit, the person protected shall not suffer a reduction in the amount of the benefit. The Committee would therefore like the Government to show in its next report, on the basis of comparable statistics given for the same time base, that the standard of living ensured to a widow with two children by the survivors’ benefit would not be lowered by its replacement by the old-age benefit. As regards calculation of the level of these benefits, please also refer to the comments made under Articles 17, 23 and Part V of the Convention.

Part V (Standards to be complied with by periodical payments). With reference to its previous comments, the Committee notes the calculations of the level of benefits provided by the Government in its report for June 1999, as well as in its 35th annual report on the ECSS for June 2002. It also notes the complex structure of the family allowances provided during employment and during the contingency, which depend on the age of the child, the size of the family and whether the child was born before or after 1 January 1995. In order to ascertain whether the level of the invalidity and survivors’ benefits attains, in all cases, the minimum level of benefits prescribed by the Convention for a standard beneficiary with family responsibilities (a man with wife and two children or a widow with two children), the Committee asks the Government to use in its calculations the lowest amount of the family allowance provided for a dependent child. The Committee understands from the 35th annual report on the ECSS that the lowest amount of family allowance is paid with respect of a child under 6 years of age born after 1 January 1995. It would like the Government to confirm this understanding and, if so, to use the corresponding monthly amount of this family allowance for two children in the calculation of the level of invalidity and survivors’ benefits. The Committee would also be grateful if the Government would specify whether a holiday allowance, to which it refers in the calculation of invalidity, old-age and survivors’ benefits, is also paid during employment and, if so, if its amount is different from that paid during the contingency in question. Finally, with these considerations in mind, it would like the Government to supply up-to-date statistics on the level of benefits for the period covered by its next report, provided on the same time basis as for the year 2002 and in the manner requested in the report form of the Convention, with a clear indication of whether the statistics refer to gross or net amounts.

[The Government is requested to report in detail in 2003.]

Direct Request (CEACR) - adopted 1996, published 85th ILC session (1997)

The Committee notes the information supplied by the Government in its report as well as in the twenty-ninth report on the application of the European Code of Social Security. It also notes the publication of the Ministry of Social Affairs and Employment which contains a brief analysis of social security in the Netherlands. The Committee would like to receive additional information on the following points:

1. Part II (Invalidity benefit) of the Convention. (a) Article 8. The Committee notes that, under section 18, paragraph 1, of the Disablement Benefits Act (WAO), as amended by the Acts of 26 February 1992 and 7 July 1993, a person is considered to be either totally or partially disabled if, as a direct result of illness or infirmity objectively and medically established, he/she is either totally or partially unable to earn, through work, what a healthy person with similar training and experience normally earns through work at the place where he/she performs or last performed work, or in the surrounding area. In addition, paragraph 5 of the same section states that the term "work" is understood to mean all generally accepted work which the worker is in a position to perform by virtue of his/her strengths and abilities. The Committee would like the Government to provide details of how section 18 of the WAO is applied in practice and to supply the text of any regulatory or administrative provisions defining its scope.

(b) Articles 10 and 11 (in conjunction with Part V (Standards to be complied with by periodical payments)). The Committee notes that, except in the case where the transitional provisions apply, the disability benefit which takes into consideration the degree of incapacity is provided in two phases. In the first phase the benefit depends on the beneficiary's previous earnings, as under the former legislation. But the duration of the provision of the benefit during this first phase will depend on the worker's age at the onset of the contingency and will vary by six months to six years, it being understood that workers under 33 years of age at the onset of the contingency are not entitled to this initial benefit. Upon expiry of this first phase, the beneficiary is entitled to an amount equivalent to the minimum wage plus an additional amount which will be equal to 2 per cent of the difference between the beneficiary's last wage and the minimum wage multiplied by the number of years between age 15 and the age of the beneficiary at the onset of the contingency. The benefit will be paid up to the age of 65 years.

The Committee would like the Government to be asked to provide statistical information, as required by the report form, on the level of benefits provided in the event of permanent disability, particularly with regard to benefits paid during the second phase.

2. Part IV (Survivors' benefit). The Committee notes from the publication of the Ministry of Social Affairs and Employment, supplied by the Government, that a new survivors' benefit scheme (General Survivors Act) came into force on 1 July 1996. It would like the Government to provide detailed information in its next report on the implementation of this reform in the light of the relevant provisions of the Convention, stating in particular the manner in which any conditions relating to income which might affect entitlement to survivors' benefit are defined.

3. Part V (Standards to be complied with by periodical payments). Article 29. The Committee notes under the law on the indexation of minimum wages and allowances (WKA), which came into force on 1 January 1992, indexation may be suspended in cases where circumstances so require. It has noted in relation to the application of the European Code of Social Security, the Government's statement that, as from 1 January 1996, social security benefits will, as in the past, once again be fully adjusted to the wage index. The Committee would like the Government to indicate in its next report whether the indexation of benefits has been re-established as from 1 January 1996, in accordance with the Government's earlier assurances, and to supply statistics for the reference period, as required by the report form under Article 29 of the Convention.

4. Lastly, the Committee notes that in the last few years, there have been very many amendments to the social security legislation. In order to facilitate its examination of these reforms, the Committee would like the Government to provide the consolidated texts in Dutch - incorporating all amendments - of the various social security laws in force in the Netherlands, when such a consolidation exists.

Direct Request (CEACR) - adopted 1989, published 76th ILC session (1989)

The Committee notes with interest the information supplied by the Government in its detailed report and would be grateful if the Government would supply certain additional information on the following points:

1. Part II (Invalidity benefit), Articles 8 to 12. The Government indicates in its report that a revision of the social security legislation has been made in January 1987 and that, with regard to insurance for incapacity to work, invalidity benefits are now only provided in the event of total incapacity of over 80 per cent. It adds that persons suffering partial incapacity to work are entitled to proportional unemployment benefits provided by the special scheme for elderly unemployed persons and workers who are partially incapacitated for work. Furthermore, from that date, the provisions, in the invalidity insurance schemes, concerning minimum daily wage were repealed and replaced by a special law providing for the grant of supplementary benefits intended to bring invalidity benefits up to the minimum social benefit (based on the minimum wage), the rate of which varies according to the family status of the beneficiary, taking into account the beneficiary's occupational income and, where appropriate, that of the spouse.

The Committee notes these indications and requests the Government to supply detailed information on the application of these new provisions and to communicate copies of them (if possible in an English or French translation).

2. Part V (Standards to be complied with by periodical payments): (a) Article 27 (in relation with Articles 17 and 18). The Committee notes with interest that the Act of 28 March 1985, which amends the legislation on general old-age insurance, introduces the principle of equality of treatment between men and women in the context of old-age pensions, and particularly with regard to the benefit rates payable to each spouse benefiting from these pensions. The Committee also notes that under section 9 of the Act the gross level of old-age pensions is a percentage of the net minimum wage serving as a basis for the calculation of the benefits concerned, and it would be grateful if the Government, when compiling statistics on the level of old-age benefits, would take as the reference wage the gross minimum wage.

(b) Article 29. The Committee notes that the Government has once again decided not to adjust the statutory minimum wage to the general trends in wages and is thereby preventing any long-term readjustment of benefits. While being aware of the need to take certain measures to contain the increase in social security costs, the Committee hopes that the Government will make every endeavour to take into account the provisions of the above Article of the Convention and that it will also supply in its next report, together with information on wage indexes, information on the cost of living index.

3. Part VI (Common provisions), Article 32. The Committee notes that under the terms of section 17 of the above Act of 28 March 1985, old-age pensions may be reviewed or withdrawn by the Social Insurance Bank and that the Minister of Social Affairs and Employment may issue rules withdrawing or suspending the grant of such benefits. The Committee requests the Government to indicate the cases (other than those referred to in section 24 of the Act) in which these benefits may be suspended or withdrawn and to supply copies of the rules that may be issued in this connection by the competent Minister. [The Government is asked to report in detail for the period ending 30 June 1990.]