The Court of Appeal of The Hague delivered a long-awaited judgment on 9 July 2024, following a referral of the case by the Supreme Court. The Court of Appeal's judgment focused on the one remaining legal question after years of litigation: did Euronext Amsterdam fail in any way to comply with the pension agreements of its pensioners and/or did Euronext Amsterdam act in violation of the 'good employment principle' towards them?
The Euronext Amsterdam case is an important ruling for legal practice in the area of conditional indexation schemes and the responsibility of employers for maintaining indexation prospects of accrued pensions (after leaving employment or upon retirement).
In this news item, Robin van der Ham and Nikki Oetomo (attorneys-at-law of Euronext Amsterdam) discuss the recent Euronext Amsterdam ruling of the Court of Appeal of The Hague of 9 July 2024.
In short – the origin of the case
The Euronext Amsterdam case concerns the termination by employer Euronext Amsterdam N.V. (Euronext) of its administration agreement with Stichting Pensioenfonds Mercurius Amsterdam (PMA), a now liquidated pension fund. The case was brought by a number of pensioners and the pensioners association called the 'Vereniging Gepensioneerden Euronext Amsterdam' (VPE et al.),who were of the opinion that Euronext was at fault of the loss of indexation prospects for their accrued pensions.
The background – a financial crisis and termination of the administration agreement
A number of large employers were affiliated with PMA at the time, including the Dutch Supervisory Authority, the 'AFM'. In 2008, the period of the financial crisis, the historically low interest rates and the increase in life expectancy, a reserve deficit arose at PMA. Shortly thereafter, all employers affiliated with PMA cancelled its administration agreements. Euronext continued to support the pension fund through increased premiums (surcharges) and voluntary top-up payments (of millions of euros), but also terminated the administration agreement in 2012.
After the termination of the administration agreement, the accrued pensions of VPE et al. initially remained with PMA as a closed fund. Those pensions had accrued on the basis of a pension agreement between Euronext and the members of VPE et al., which included a conditional indexation scheme. However, shortly after the termination, PMA decided to liquidate, as a result of which it also decided to collectively transfer the pensions of VPE et al. to insurer Delta Lloyd. In that transfer, given PMA's poor financial situation at the time of liquidation, PMA could not negotiate a new conditional indexation scheme. However, PMA was able to avoid (further) pension cuts in exchange for favorable interest rate agreements with Delta Lloyd.
The claims of VPE et al.
VPE et al. brought various claims in response (first against PMA and then against Euronext), including (1) a claim for an order against Euronext to conclude a new administration agreement with PMA or with another administrator in which the same indexation scheme would be included (or at least on the basis of which the lost indexation perspective would be made up), (2) a claim for an order against Euronext to pay PMA or another administrator (Delta Lloyd) such a sum of money that the pensioners in question would be put in the same position as they would have been if the administration agreement with PMA had not been terminated and had been continued unchanged, (3) a claim for an order against Euronext to compensate for damages. A declaratory judgment was also sought to the effect that (4) Euronext had failed to comply with the pension agreement vis-à-vis VPE et al. and/or had acted in violation of the good employment principle due to the loss of indexation prospects.
The Supreme Court's referral back
Proceedings on the above claims reached the Dutch Supreme Court, where the Supreme Court eventually rejected all claims of VPE et al. and set aside the judgment of the Court of Appeal of Amsterdam (in which judgment VPE et al. had been proven right on all points). The case was referred back to the Court of Appeal of The Hague.
The only remaining question of law before the Court of Appeal of The Hague after referral back
Before the Court of Appeal of The Hague, one question remained: did Euronext Amsterdam, as a result of the termination of the administration agreement with PMA and the lost indexation perspective of VPE et al. indeed fail to comply with the pension agreements of VPE et al. and/or did Euronext Amsterdam indeed act in violation of good employment principles as a result?
The Court's legal considerations
In addressing the remaining question of law, the Court of Appeal of The Hague concluded that:
- Euronext did not have to enter into a new administration agreement for VPE et al. upon the termination of the administration agreement with PMA or the collective value transfer by PMA to Delta Lloyd to fulfill the conditional indexation scheme;
- No unequal treatment by Euronext of active participants and inactive participants (VPE et al.) by establishing an indexation deposit only for active participants;
- Euronext no longer had any obligations to PMA after the termination of the implementation agreement with PMA on the basis of that implementation agreement and (thus) also not to VPE et al;
- Euronext, taking all relevant circumstances into account, has not acted in violation of good employment principles by not making (sufficient) efforts for the interest of VPE et al. (in maintaining their conditional indexation scheme);
- Euronext, given the voluntary top-up payments and premium surcharges paid, has even shown itself to be "a good employer"; and
- Despite the termination of the conditional surcharge arrangement, Euronext has not defaulted on the pension agreements of VPE et al.
Thus, all of VPE et al.'s claims were dismissed, and the Amsterdam District Court's first-instance judgment (still standing after the Supreme Court's reversal) was also overturned.
VPE et al. have indicated that they will comply with the Court of Appeal's judgment. Therefore, it is expected that this judgment will not be appealed.
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