Recovery Surgery Surcharges Act (Wht).
ECLI:NL:RBROT: 2025:4519
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Rotterdam Court of Justice
Date of ruling 14-04-2025
Publication date 17-04-2025
Case number ROT 24/229
JurisdictionsAdministrative Law
Special featuresFirst instance - single
Indication of contents
Recovery Surgery Surcharges Act (Wht). The minister rightly did not take over the plaintiff's repaid monetary debt and reasonably disapplied the hardship clause. The legislator has explicitly intended that cases such as the plaintiff do not fall under the scheme. The appeal is unfounded.
Vindplaatsenrechtspraak.nl
Ruling
ROTTERDAM COURT
Administrative law
case number: ROT 24/2299
Single Chamber ruling of 14 April 2025 in the case between
[plaintiff name], from [location], plaintiff
(Delegate: Mr M. Shaaban),
and
the Minister of Finance
(delegate: [person A]).
Summary
1. The minister rejected the plaintiff's application for compensation for a repaid monetary debt under the Recovery Operation Surcharges Act (Wht). The court admires the plaintiff, who has now paid off all her debts on her own. The court can well imagine that the plaintiff finds it very unfair that her debt is not assumed and someone else's debt that has gotten out of hand is. However: not every situation that is very unfair leads to the application of the hardship clause. It must be a case that is very unfair “in view of the importance that the provision is intended to protect”. Because the legislator has just explicitly intended that cases such as the plaintiff do not fall under the scheme, the minister should reasonably disapply the hardship clause. The court can imagine that the plaintiff finds this outcome unsatisfactory, but it is not up to the court to set aside the legislator's conscious choice. The appeal is unfounded.
Process progress
2. With the decision of 20 September 2023, the minister rejected the plaintiff's application to take over a monetary debt that has already been paid under the Wht.
2.1.By decision of 30 January 2024 (the contested decision), the minister declared the plaintiff's objection to the decision of 20 September 2023 unfounded.
2.2. The plaintiff appealed against the contested decision. The minister responded to the appeal with a statement of defence.
2.3.The court heard the appeal to the hearing on 9 December 2024. This involved: the plaintiff, the plaintiff's agent and the minister's agent.
Considerations
3. The plaintiff is the victim of the benefits affair. As a result of the unjustified recoveries by the Surcharges Department, she ran into serious financial problems. Two board members of the plaintiff's employer helped her in a personal capacity in 2019 by providing an interest-free loan of €22,000. The plaintiff repaid this loan in monthly installments of €250. Although that was not easy as a single mother with three children, she did not miss a single payment. The plaintiff submitted an application to take over this debt already paid under article 4.3 of the Wht.4. The minister rejected the application because it concerns an informal debt that was not recorded in a notarial deed and because the debt did not become due and payable. The minister did not apply the hardship clause because there is no predominant unfairness.5. The plaintiff argues that the minister wrongly rejected her application. The loan is laid down in an agreement, so there is no doubt about the existence of the debt and the terms of repayment. Sticking to the requirement of the notarial deed violates the principle of proportionality.1 In addition, the minister should have applied the hardship clause. The plaintiff took out a personal loan in difficult circumstances instead of opting for the debt restructuring scheme. The debts paid off with the loan would have been eligible for takeover by the minister without that loan.6. The court will then first assess whether the plaintiff's debt meets the requirements of article 4.3 of the Wht. The court will then assess whether the minister was reasonably able to disapply the hardship clause.
Compensation for repaid private law debts
7. The minister provides compensation for a repaid monetary debt that would qualify for repossession under article 4.1 of the Wht if it had not been paid. Compensation is provided for a monetary debt that has been paid after receipt of the amount under a remedial measure as referred to in article 2.7 of the Wht.2 The cash debt to be taken over must have arisen after December 31, 2005 and become due before June 1, 2021.3 A monetary debt that has not arisen in the normal course of a profession or business must be recorded in a notarial deed.4 The principal amount of a loan is not taken over unless it has become due due to late payments.58. In the court's opinion, the Minister has correctly determined that the plaintiff's debt does not meet the requirements of article 4.3 of the Wht. The plaintiff repaid the debt in monthly installments of €250. There was no delay in payment. The creditors were therefore not entitled to demand repayment of the full amount of the debt at once. This means that the debt has not become due. The debt is also not recorded in a notarial deed.9. The court may not review the requirements of article 4.3 of the Wht against the principle of proportionality. This is what the ban on review of Article 120 of the Constitution stands in the way. The legislator has explicitly recognized the consequences of the requirements of the notarial deed and due and payable (see also recital 11 below). The exception that the court may still review the principle of proportionality if there are circumstances that the legislator did not foresee, is therefore not applicable.6
Hardness clause
10. The minister may deviate from article 4.3 of the Wht insofar as its application, in view of the importance that the provision is intended to protect, will lead to an unfairness of a predominant nature (in plain Dutch: a very unfair situation).711. To determine what interest article 4.3 of the Wht is intended to protect, the court examined the history of chapter 4 of the Wht. This shows the following.
11.1.The House of Representatives has asked the government to take over the private debts of affected parents “so that they can keep the €30,000”.8 The Secretary of State's ambition was to solve parents' private debts as quickly as possible and in one go, allowing them to make a fresh start in combination with the cancellation of public debts. The Secretary of State wanted to prevent affected parents from continuing to be burdened by debt, but it was not the intention that regular loans for buying a car or TV would be waived, provided that they did not result in payment arrears.9 The Explanatory Memorandum to the Wht states that the debt approach is not intended to repair past damage, but to offer affected parents as much chance of a fresh start as possible, while sparing the compensation received as much as possible. Only due and payable arrears are taken over, because the aim is not to fully indemnify parents from payment obligations. According to the legislator, this causes situations that may feel unfair.10
11.2.The amendment by MPs Omtzigt and Leijten concerning the omission of the requirement for a notarial deed has not been adopted.11 In this context, the implementing organization Stichting Banken Nederland (SBN) carried out an abbreviated implementation test.12 In it, the SBN highlighted the risk of fraud and improper use of the scheme. Evidence of the debt should preferably not come from the affected parent or his or her family or friends, but from independent third parties, in order to carry out the most reliable verification possible. According to the SBN, it is easy to edit copies and prepare documents about claims afterwards. The SBN has also encountered such fabricated evidence. The SBN considered the omission of the requirement for a notarial deed ineffective, unenforceable and immoral. If this requirement were nevertheless amended, the SBN saw no role for itself in the implementation.
11.3.In a legislative meeting, Member of Parliament Omtzigt pointed out that really no affected parent has recorded an informal debt in a notarial deed.13 The Secretary of State replied that he understands that, that it is understandably frustrating for parents and that the agreement has been made that only arrears will be taken over and not the principal amount. In the same meeting, MP Maatoug pointed out that exactly the group of people who did everything, who worked their way around and went through a ravine, are now getting the result: it's too complicated. She asked the Secretary of State why the hardship clause is not applied to those cases. The Secretary of State replied that if the legislator has foreseen something, the hardship clause cannot be applied.
11.4.The court draws the same conclusion from this legal history as the Administrative Jurisdiction Division of the Council of State: the purpose of the regulation is aimed at offering affected parents a fresh start by indemnifying them from collection measures in certain cases. Only when a debt is due and unpaid can collection measures be taken, with or without the intervention of a bailiff. The legislator explicitly wanted to bring only due debts or arrears under the scheme. The requirement that it must be due and payable is therefore part of the core of the regulation and is a recurring starting point in the history of the scheme.14
11.5. In addition, the court notes that the private debt regulation, as ultimately laid down in the Wht, has a much more limited effect than the motion underlying the scheme seems intended. The legislator's intention to offer affected parents a fresh start by “resolving private debts at once” has ultimately narrowed down to an arrangement that only offers relief to affected parents who are struggling with due debts, which can lead to collection measures. In doing so, the legislator has given priority to considerations about the enforceability and risk of fraud and abuse of the scheme. The legislator has repeatedly been expressly reminded of the adverse effects of this regulation for victims such as the plaintiff, but the regulation has not been amended. On the contrary: the legislator has simply acknowledged that the scheme leads to situations that may feel unjust.12. The court can well imagine that the plaintiff finds it very unfair that her debt is not assumed and someone else's debt that has gotten out of hand is. If the plaintiff had not repaid her debts with her employer's loan, the situation would have only worsened. Instead, she gratefully took advantage of her employer's compassionate offer and then did everything in her power to meet her payment obligation. In addition, she had to make painful choices and deny herself and her children things. The court admires the plaintiff, who has now paid off all her debts on her own. The plaintiff acted as you would hope someone would act in such difficult circumstances. 13 But: with the private debt regulation, the legislator has precisely intended not to help affected parents such as the plaintiff. This is the logical consequence of the requirement that the debt must be due. Duped parents who have done their best to keep their debts manageable fall by the wayside. The legislator has faced this and yet arranged it that way. When assessing the hardship clause, the question whether there is an overriding degree of unfairness should be answered “in view of the importance that the provision is intended to protect”.15 Not every situation that is very unfair leads to the application of the hardship clause. Because the legislator has expressly intended that cases such as the plaintiff do not fall under the scheme, there is no predominant inequity within the meaning of the hardship clause. The minister could therefore reasonably disapply the hardship clause.14 The court can imagine that the plaintiff finds this outcome unsatisfactory. However, the court has no other option. It is not for the judge to set aside the legislator's conscious choice.16 In this ruling, the court set out the legislator's choices and their consequences. If the legislator believes that the outcome should be different in the case of the plaintiff, it is up to the legislator to amend the regulation. The court also notes that the fact that the plaintiff and her children have lived in difficult financial circumstances for a long time may play a role in the amount of intangible compensation in the context of an application for additional compensation for the actual damage.17
Conclusion and consequences
15. The appeal is unfounded. This means that the minister does not have to grant compensation for the plaintiff's debt already paid. She will not receive the court fee back nor will she be reimbursed for her court costs.
Decision
The court declares the appeal unfounded.
This ruling was made by mr. R.J.P. Ferwerda, judge, in the presence of mr. A.J. Huisman, clerk. The ruling was pronounced publicly on April 14, 2025.
clerk judge
A copy of this ruling was sent to the parties at:
Appeal information
A party that does not agree with this ruling may send an appeal to the Administrative Jurisdiction Division of the Council of State explaining why that party disagrees with this ruling. The appeal must be filed within six weeks of the date on which this ruling was sent.
1Rb. Amsterdam February 5, 2024, ECLI:NL:RBAMS: 2024:494.2 Article 4.3, paragraph 1 and paragraph 3, introductory words and points a, of the Wht.3 Article 2.1, paragraph 2, introductory words and points a and b, of the Wht.4 Article 2.1, paragraph 3, introductory words and point b, of the Wht.5 Article 4.1, paragraph 4, introductory words and point b, of the Wht.6ABRvs May 15, 2024, ECLI:NL:RVS: 2024:2040 and ABRvs February 12, 2025, ECLI:NL:RVS: 2025:532.7 Article 9.1, paragraph 2, introductory words and point a, of the Wht.8Parliamentary Documents II 2020/21, 35510, No. 7.9Parliamentary Documents II 2020/21, 31066, No. 879.10Parliamentary Documents II 2020/21, 36151, No. 3, pp. 41 and 44.11Parliamentary Documents II 2022/23, 36151, No. 10.12 Parliamentary Documents II 2022/23, 36151, No. 30.13 Parliamentary Documents II 2022/23, 36151, No. 31.14 ABRVS May 15, 2024, ECLI:NL:RVS: 2024:2040, r.o. 20.15 Article 9.1, paragraph 2, of the Wht.16 See also ABRvs February 12, 2025, ECLI:NL:RVS: 2025:456, section 7.4.17 Article 2.1, paragraph 3, of the Wht.
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