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Towards a New Protected Minimum Balance for the Debtor in the Case of Periodical Allowance

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The Dutch Judicial Officers Seek Greater Legal Clarity

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For some time now there have been murmurings that the arrangements for the protected minimum balance of the debtor in the case of periodical allowance in the Netherlands have left something to be desired. Since the calculation of the protected minimum balance can be rather complicated, it is not straightforward for litigants (or those representing them) to check whether the calculation made actually tallies. There are also a number of websites providing calculation programs, but they don't always come up with the same answer. All this has motivated the Koninklijke Beroepsorganisatie van Gerechtsdeurwaarders (KBvG, the Royal Professional Organisation of Judicial Officers in the Netherlands) to initiate a serious study of this topic with the aim of providing greater clarity. A number of experts both within and outside the professional group have been asked for their opinions and their advice has resulted in preliminary recommendations with the title "Towards a new protected minimum balance for the debtor in the case of periodical allowance: simplification to produce a two-stage rocket" , presented on 30 June. In this contribution we sketch the outlines of these preliminary recommendations.

By Mr J. Rijsdijk and prof. Mr A.W. Jongbloed

The Wider Context

The preliminary recommendations open with a sketching out of the general contours of third party attachment and the role of the debtor's protected minimum balance therein. Various legal issues and problem areas associated with third party attachment, which may also crop up in the application (and calculation) of the protected minimum balance, are identified. It is observed that the protected minimum balance must be seen in the context of third party attachment as attachment for the collection of receivables. There is consideration of the question to what extent it is possible to attach existing and future monetary claims (can future salary be attached?), the consequence for the attachment creditor of the bankruptcy of the third party transferee, the duty of declaration under Article 476a of the Code for Legal Proceedings and finally of the relationship between third party attachment and rights of will, rights to suspend performance and settlement.

The earlier history of the protected minimum balance of the debtor in the case of periodical allowance (in the period between 1800 and 1981) and the social/societal context of the last thirty years are also covered. To many observers it seems self-evident that the regulation of the protected minimum balance of the debtor in the case of periodical allowance is linked to the level of payments under the Work and Social Assistance Act (Wwb) (being 90% of the standard assistance applicable to the debtor), but it was only at the start of the 20th century and following a lengthy parliamentary history that a provision limiting the attachment of salary on the employer, and the aforementioned linkage was only created in 1981, placing the protected minimum balance in the context of the social security legislation.     The preliminary recommendations set out these various developments, and the protected minimum balance is examined in the light of the care, welfare and participation state. A firm foundation for the further discussion of the topic is laid down.

Comparative Law


It is only by means of comparative law that the true value of our own legal system can be evaluated, and an assessment can be made whether a different system or a different shaping of the existing system would lead to better results. It is possible for instance that a less detailed system has been opted for in another jurisdiction, the question then being whether this has led to unreasonable outcomes. One positive point might be that it is simpler for the debtor to discover what amount applies, and whether an error has been made in the calculation. A negative aspect might be that specific groups might more easily find themselves in difficulties, since no account is taken of the actual situation but fixed amounts are worked with instead.

The Dutch legislation is compared with that of 24 other European countries in the preliminary recommendations. It was decided to discuss the protected minimum balance in our neighbouring countries in greater detail. The discussion deals with the law in countries to our south (Belgium and France), to our east (Germany) and to our west (England, Wales and Scotland).  One reason for devoting additional attention to these countries is that the law in force there does not deviate too far from the situation in the Netherlands, so that we might reasonably expect to find useful common features. One important question here is, what can the Dutch legislator or court learn from the law in force in these countries? It is also explained why the greatest attention was paid to the situation in Belgium, namely that they are our neighbours, with a comparable legal system, the same language and the most information available.

Several other countries were also considered because of their (more) recent introduction of new legislation, and the protected minimum balance was also sometimes examined in the light of social security arrangements. It is interesting to note that certain countries, including Germany , France and Spain, work with a fragmented system where different percentages apply to each income scale: the higher the income, the more can be attached.

The Current State of the Law


The preliminary recommendations also examine current legislation on the protected minimum balance in depth. Attention is paid to the relevant literature and jurisprudence as well as the different views which exist in practice in relation to the application of the legislation. To what extent are the principles of Article 3:276 of the Civil Code ("Unless the Law or an agreement otherwise determines, a debtor may recover his claim to all his debtor's goods") and Article 435 Section 1 ("The Executor shall at the same time be free to attach all goods subject to recovery, which he is entitled to recover by virtue of his claim") applied, and what distinctions are introduced by Article 6:2 of the Civil Code, the first section of which stipulates that the debtor and creditor shall act in relation to one another in accordance with the requirements of reasonableness and fairness?

It is not only the protected minimum balance as legislated for in the Code for Legal Proceedings which comes into consideration here, but also other provisions on such matters as the Provisional Tax Refund, social security payments, pensions, annuities and payments from life annuity insurance, insurance payments, maintenance, payments to war victims and the salaries of civil servants. The Government Order (Article 19 of the Recovery Act 1990), the recovery provisions in the social security legislation (Article 60 of the Work and Social Assistance Act) the Administrative Premium (Article 18f of the Care Insurance Act) and the Protected Amount in the context of the settlement of debt (Article 295 Section 2 and 3 of the Bankruptcy Act) are also reviewed. The conclusion which can be drawn on the basis of these discussions is that the Subsistence Minimum guaranteed by the protected minimum balance is under pressure from other legislation, with the exception of the Natural Persons Debt Rescheduling Act.

A fundamental discussion is therefore required on the question how far a breach of this Subsistence Minimum is permissible. There will certainly be something to say about this if there are strong suspicions that the debtor has a higher income than that claimed and if this can be established via official channels. The debtor is then not acting in good faith, and if the suspicions are well-founded, he will in fact still have sufficient income at his disposal to guarantee a certain Subsistence Minimum. A breach of the Subsistence Minimum by means of sanctions but in the absence of indications that the debtor is drawing income from his creditors' claims does appear dubious however, and in conflict with the underlying notion that a certain Subsistence Minimum must be available to all. Such powers moreover increase the inequality in law between the different creditors, while the principle of the equality of creditors is what is required to be enforced and guaranteed to the greatest extent possible. 

Adequate Support

It goes without saying that any proposals made must fall in fertile ground. The preliminary recommendations therefore include contributions from a group of individuals and organisations in politics and in the practical field who are of significance for the KBvG. As well as the opinions of Members of Parliament, views were also gathered from representatives of the tax authorities, local authorities, the Office of the National Ombudsman, the Natural Persons Debt Rescheduling Act Bureau, the NVVK (debt advice), the UWV (employee insurance), the SVB (social insurance bank) and Vereniging Eigen Huis (the Own House Association). This made it clear what problems exist in practice and which solutions can rely on adequate support.

There must also be a body of support among the Judicial Officers. It is therefore important to ask what the professional group themselves think about the protected minimum balance. The question is significant because of frequent claims during 2013 that the protected minimum balance would no longer guarantee debtors a Subsistence Minimum, because of the steady increase in the complexity of society since the introduction of the legislation. Around half of the KBvG membership responded to the enquiry, so that this can be termed a representative opinion. The professional group's contribution to the preliminary recommendations called for simplification of Articles 475b-g of the Code for Legal Proceedings, as well as exploring the issue of third party attachment (Article 478 of the Code for Legal Proceedings), partly in relation to preferential claims.

It emerged that the majority of respondents (70%) feel that the practical implementation of the protected minimum balance leaves something to be desired. In their experience the application of the protected minimum balance is complicated and they noted a number of problems, resulting on the one hand from inadequacies in the legislation itself and on the other hand of the system of law in relation to execution, attachment and recovery. Against that a small minority (29%) had positive views about the operation of the protected minimum balance. They indicated that they find the structure of the legislation logical: it is necessary to go through Article 475d of the Code for Legal Proceedings in a set order to calculate the protected minimum balance. In practice however there is some discussion about what order that should be. There are also calculation programs which can be of assistance in calculating the protected minimum balance.

A Two-Stage Rocket

Since legislation is a complex and frequently a long-winded process, two solutions are presented. One is for the shorter term, as it is important that the correct method of calculating the protected minimum balance should be made transparent in the not too distant future. The aim of this short-term model is to improve the practical applicability of the protected minimum balance within the existing societal context. The proposed amendments to Article 475g of the Code for Legal Proceedings  and the new article 475ga of the Code for Legal Proceedings  are intended to contribute to the achievement of this improvement.

In the long(er) term the legislator must prepare more systematic amendments with the aim of simplifying the existing system. These changes must not be considered in isolation from other amendments involving other departments. Amendments will be required to the planned revision of the tax law (cf. the report of the Van Dijkhuizen Committee ) and the clampdown on fraud involving allowances (although it appears that it will prove impossible to introduce a household allowance  in the short term).  Against this background six recommendations were submitted to the Secretary of State for Justice and Security and the Secretary of State for Employment and Social Affairs:
1. Replace the current complicated system of linkages to the multiplicity of applicable assistance standards with a progressive system of sliding scales;
2. Replace the totalling of periodic income elements to which a protected minimum balance is or can be linked by a description, replacing Article 475c of the Code for Legal Proceedings and the proposed Article 475e Section 1 of the Code for Legal Proceedings;
3. Reconsider Article 45 of the General Act on Income-Related Regulations;
4. Introduce a measure whereby no recovery may be made up to the protected minimum balance on a bank account in which the debtor receives his periodic allowances;
5. Improve the coherence between the general rules on attachment and the State's special powers of recovery;
6. Task the Judicial Officer taking the lead in collecting in the case of concurrent attachments (Article 478 of the Code for Legal Proceedings) with the determination of the protected minimum balance on behalf of the other attachment creditors.

In the view of the KBvG these preliminary recommendations have made it clear that the existing legislation requires amendment. Possible approaches to amendments in both the short and long term are proposed, bringing the Dutch legislation on this topic more into line with that in other countries. Politico-legal considerations naturally play a role here, but in any event these preliminary recommendations will initiate a discussion, while the recommendations also contain contributions to that discussion. It is now for the Dutch legislator to follow up on these recommendations!


Notes

1. The preliminary recommendations were brought together under the editorship of Mr J. Rijsdijk, Mr O.M. Jans and Mr J. Feikema. The other authors are: Mr J.J.L. Boudewijn, Mr dr. L.P. Broekveldt, Mr M.I. Cazemier, Mr B.T.M. Duivenvoorden, prof. Mr A.W. Jongbloed, J. Nijenhuis, Mr E. van der Ploeg, prof. Mr F.R. Salomons and A.C.C.M. Uitdehaag.

2. Act of 13 July 1907, Journal of State 1907, 193.

3. Act of 11 March 1981, Journal of State 1981, 111.

4. The countries covered in more general terms were: Azerbaijan, Bulgaria, Estonia, Georgia, Greece, Hungary, Latvia, Lithuania, Moldavia, Norway, Poland, Portugal, Romania, Serbia, Slovenia, Spain, the Czech Republic and Sweden. 

5. This has no longer been the case for some time. According to Huls the principle of the equality of creditors lies in tatters: de Gerechtsdeurwaarder 2014, no. 1, p. 14.

6. The duty on debtors to provide information is seen by the politicians as the biggest problem with the existing legislation. The organisations out in the practical field agree with the politicians that the duty on the debtor to provide information is not satisfactory, but they would go a step further: as well as wishing to see a resolution to this problem, which they regard as the greatest gap in the current legislation, they would also like to see a simplification of the regulations. Some organisations go further than others in this respect: some call for a reduction in the number of variables, others would prefer to work with fixed standard amounts, and a few would go so far that they would like it to be possible to establish a person's protected minimum balance simply by looking at a table, on the principle of "maximal transparency". Rijsdijk, Jans & Feikema 2014 (eds.), Naar een nieuwe beslagvrije voet. Vereenvoudiging in een tweetrapsraket (Towards a new protected minimum balance for the debtor in the case of periodical allowance), Den Haag: Sdu Uitgevers 2014.

7. One of the amendments to this Article aims to clarify the use of the citizen service number by the Judicial Officer in connection with the protected minimum balance, and to increase its effectiveness. idem, pp. 317 and 318.

8. This Article proposes improvements to the acquisition of information by the Judicial Officer; idem, pp. 318-320.

9.Naar een activerender belastingstelsel, Eindrapport, Commissie inkomstenbelasting en toeslagen, (Towards a more activating tax system, Final Report, Committee on Income Tax and Allowances, Van Dijkhuizen e.a., June 2013.

10. The household allowance would combine the current care allowance, the child-related allowance, the rental allowance and a parental component to create a household-based allowance.

11. The original plan was for the household allowance to be phased in from 2015 onwards: Miljoenennota 2014, p. 75 etc, available from: www.rijksfinancien.nl/fbcontent.ashx/downloads/Miljoenennota_2014.pdf#page=75. Its implementation has now been postponed to an as-yet unfixed date due to feasibility problems. Letter of 14 April 2014 on the Household Allowance from the Ministry of Social Affairs and Employment and the Secretary of State for Finance to the Lower House, available from: www.rijksoverheid.nl/ministeries/szw/documenten-en-publicaties/kamerstukken/2014/04/14/kamerbrief-over-de-huishoudentoeslag.html.
 
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