The cost of late payment of wages

HERO 2026 / N-010, Ruben Berghuis and Kirsten Moonen, e-ISSN 2667-3568, M.A.D.Lex – annotation ECLI:NL:HR:2026:239 – https://www.online-hero.nl/art/5566/de-prijs-van-te-laat-betaald-loon

Legal question

Is the estate liable for statutory surcharge (acticle 7:625 of the Civil Code) and statutory interest (acticle 6:119 of the Dutch Civil Code) – including in respect of wages covered by the wage guarantee scheme under acticle 61 et seq. of the Unemployment Insurance Act? And what is the ranking of these claims? To what extent does the bankruptcy constitute grounds for a reduction in the statutory surcharge? Must the trustee, on his own initiative, inform employees of their rights against the estate in respect of the statutory surcharge and statutory interest?

In short

This case concerns a test trail brought by the FNV against the trustee in the bankruptcy of Brabant Alucast The Netherlands Site Heijen B.V., in which the Limburg District Court was requested by both parties to refer questions for a preliminary ruling to the Supreme Court.

The questions concern the position of employees as creditors of the estate in the event of late payment of wages following bankruptcy. The central issue is whether, in respect of wages that qualify as estate debts under acticle 40(2) of the Bankruptcy Act, the statutory surcharge under acticle 7:625 of the Civil Code and statutory interest under acticle 6:119 of the Civil Code are payable, even insofar as those wages fall under the wage guarantee scheme of acticle 61 et seq. of the Unemployment Insurance Act.

Furthermore, the issue is the ranking of these (ancillary) claims and whether the bankruptcy as such constitutes grounds for a reduction in the statutory increase.

Finally, the question arises as to whether the trustee has a duty to actively inform employees regarding their rights to statutory surcharges and statutory interest.

Practical tip

Trustees would be well advised to amend their letters of resignation in light of this judgment. In the letter terminating the employment contract pursuant to acticle 40 of the Insolvency Act, include a standard paragraph drawing employees’ attention to their claims against the estate in respect of (overdue) wages, statutory increase (acticle 7:625 of the Civil Code) and statutory interest (acticle 6:119 of the Civil Code). The Supreme Court has ruled that a notification at the time of or shortly after termination is sufficient.

Annotation

With this judgment, the Supreme Court has further developed the doctrine of estate debts in bankruptcy. In a preliminary ruling, the Supreme Court answers questions regarding the liability, ranking and extent of statutory surcharges (article 7:625(1) of the Dutch Civil Code) and statutory interest on wages that qualify as estate debts under acticle 40(2) of the Bankruptcy Act. The judgment is consistent with the PaperlinX-judgment, in which the Supreme Court had already ruled that statutory interest on a rent estate debt qualifies as an estate debt itself. In the present judgment, that line of reasoning is extended to wage estate debts (acticle 40 of the Bankruptcy Act). The judgment also addresses the ranking of those claims, the power to mitigate claims in bankruptcy and the trustee his duty to provide information to estate creditors.

The judgment stems from a test trail brought by the trade union FNV against the trustee in the bankruptcy of Brabant Alucast The Netherlands Site Heijen B.V. (“BAH”). By judgment of 11 December 2024 (ECLI:NL:RBLIM:2024:10155), the Limburg District Court referred six questions for a preliminary ruling (Article 392 of the Code of Civil Procedure).

The facts are as follows. Following a brief suspension of payments (granted on 20 July 2018), BAH was declared bankrupt on 24 July 2018 and a trustee was appointed. At the time of the bankruptcy order, there were 110 employees epmployed. With a view to achieving a restart, the trustee continued the business in the bankruptcy and the employees kept working during this process.

The wages for the month of July should have been paid on the date the suspension of payments was granted. In view of the suspension of payments and in the absence of available funds, this did not happen. Under the applicable collective labour agreement, the wages should have been paid by 31 July 2018 at the latest. The wages were also not paid on that date – due to the bankruptcy.

The trustee then proceeded to terminate the employment contracts pursuant to acticle 40 of the Bankruptcy Act. The majority of the employees subsequently left the company on 30 August or 5 September 2018.

The UWV held an initial meeting with the employees on 2 August 2018. The UWV then proceeded to implement the wage guarantee scheme. Not all of the employees’ claims were covered under the wage guarantee scheme. The claims not covered were mainly holiday entitlements (holiday pay). Pending the UWV’s final decision, the trustee calculated these claims and communicated them to the employees on 30 October 2018.

Before the District Court in Roermond, the FNV is seeking a declaration that the trustee is liable for statutory interest and a statutory surcharge on the estate debt owed to the employees pursuant to article 40(2) of the Bankruptcy Act, and that both claims qualify as an estate debt with associated preferential status (acticle 3:288(e) of the Civil Code). The FNV is also claiming that the trustee must inform the employees of this of his own accord.

In its judgment referring the case, the court set out a preliminary ruling. With regard to statutory interest, the court concurs with the FNV: referring to the PaperlinX-judgment, it is established that there has been a default in respect of the July 2018 wages, meaning that the estate is liable for statutory interest – including  the portion covered by the wage guarantee scheme. With regard to the statutory increase, the court takes a different approach: it distinguishes the incentive function of article 7:625 of the Dutch Civil Code from the compensatory nature of statutory interest. The fact that ancillary claims follow the fate of the principal claim relates only to the latter. Since bankruptcy involves an inability to pay rather than an unwillingness to pay, the court sees grounds for reducing the interest to zero. With regard to the duty to provide information, it considers that civil law assumes an active stance on the part of creditors and that neither article 7:611 of the Dutch Civil Code nor article 68 of the Bankruptcy Act provides a basis for a duty on the part of the trustee to inform individual estate creditors of their own accord of claims for interest or surcharges.

The Supreme Court answers the first preliminary question (of six) in the affirmative. The estate is liable for statutory interest on late-paid wages, which constitute a (concurrent) estate debt under acticle 40(2) of the Bankruptcy Act. That statutory interest is therefore an estate debt. In accordance with its reasoning in the PaperlinX-judgment (grounds for the judgment 3.2.6), the Supreme Court rules that there must be a default. According to the Supreme Court, it is irrelevant to the answer to the question of whether default exists whether, in the event of the employer’s bankruptcy, the employee is also entitled to a benefit from the UWV under the wage guarantee scheme. Furthermore, the existence of the wage guarantee scheme does not constitute a reasonable ground (acticle 6:37 of the Dutch Civil Code) for doubting to whom the wages must be paid and (therefore) there is no ground for suspending the trustee his obligation to pay the wages.

The second and third questions concern the statutory increase (acticle 7:625 of the Dutch Civil Code). The Supreme Court rules that the estate is liable for the statutory surcharge (on the wages which, pursuant to article 40(2) of the Bankruptcy Act, constitute an estate debt). It considers that the statutory surcharge is intended as an incentive for employers to pay wages on time and that the employment relationship continues unchanged during bankruptcy. If the wages are not paid on time through the employer’s fault (pursuant to article 6:75 of the Dutch Civil Code), the employee is fully entitled to the statutory surcharge. Fault is not required for attribution. A lack of funds, or uncertainty regarding such funds, does not preclude attribution.

Nor is it relevant whether a claim also exists against the UWV under the wage guarantee scheme. The Supreme Court considers in this regard that such a claim does not affect the fact that the failure to pay can be attributed to the employer (the trustee) and that the trustee is not authorised to suspend the obligation to pay wages.

The statutory surcharge on wages, which constitutes a preferential claim under acticle 40(2) of the Bankruptcy Act, is also a preferential claim. On the basis of a comparison of legal history, the Supreme Court concludes that the priority under acticle 3:288(e) of the Civil Code also applies to the statutory surcharge. The statutory increase on wages which, pursuant to acticle 40 of the Bankruptcy Act, is a preferential estate debt, is therefore also a preferential estate debt.

In view of the earlier consideration, including that the employment relationship (and contract) continues in bankruptcy as it did prior to bankruptcy, the Supreme Court rules that the court may reduce the statutory surcharge (under article 7:625(1), third sentence, of the Dutch Civil Code) to such an amount as it deems fair, including to nil. The fact that bankruptcy or insolvency is involved may constitute grounds for such a reduction.

Finally, the Supreme Court rules that the proper performance of duties may entail that, in the event of a debt of the estate, the trustee informs the creditor of the possibility of claiming that debt against the estate. This will be the case if the trustee is aware of the existence of an estate debt and the trustee knows, or has reasonable grounds to suspect, that the creditor is not himself aware of it. With regard to employees, a notification by the trustee (for example) at the time of or shortly after the termination of the employment contract, stating that the wages, the statutory increase and the statutory interest are estate debts, is sufficient.

The practical implications of this judgment are significant. We anticipate that the trustee will place (even greater) emphasis on (the decision regarding) whether or not to make staff redundant and on the progress of the wage guarantee scheme with and through the UWV. He does this, among other things, to prevent wage estate debts from mounting. However, he cannot prevent this entirely. After all, statutory interest and statutory surcharges will continue to accrue as long as the trustee fails to settle the wage estate debt. Even after the UWV has paid the staff under the wage guarantee scheme, the wage estate debt may still increase if the employee’s wage claim exceeds the benefit they receive from the UWV, for example if their wage amounts to more than one and a half times the established daily wage (acticle 64(4) of the Unemployment Insurance Act). Furthermore, employees cannot claim payment of statutory interest and the statutory surcharge from the UWV, as these do not fall within the definition of wages in acticle 61 of the Unemployment Insurance Act (ECLI:NL:CRVB:2010:BO1367, para. 5.1).

The statutory increase shall in no case exceed half of the wages due. In addition, there is the option of requesting the (subdistrict) court to moderate (the maximum percentage of) the increase. Research by Van Kempen (TAP 2019/190) shows that mitigation is frequently granted. However, the percentage of cases in which mitigation was refused has risen significantly: from 24% (in 2012) to 38% (in 2019). We await proceedings in which the trustee will request the (subdistrict) court to moderate the statutory increase due to the circumstances of the bankruptcy. In our view, he will then have to demonstrate that the trustee has made every effort to ensure that the wage estate debt is paid as quickly as possible.

In addition to the estate debts, which are set to rise significantly, a trustee will have to carry out more work in relation to identifying these claims and verifying the (calculation of the) estate debts submitted.

The acceptance of an active duty to provide information is to be welcomed from the perspective of employee protection. The Limburg District Court had, incidentally, considered (para. 3.17) that an active duty to provide information would not be consistent with the principle that the trustee acts in the interests of the collective creditors. As Advocate General De Bock rightly observed (AG’s Opinion, para. 12.5), this view is incompatible with the fact that the trustee is required, in certain circumstances, to inform individual creditors (as follows from the Maclou-judgment).

However, the Supreme Court interprets the duty to provide information in a rather narrow sense: a notification at the time of or shortly after dismissal under acticle 40 of the Insolvency Act is sufficient. Whilst this reduces the burden on trustees, it also undermines the purpose of the duty to provide information. It is, after all, obvious that trustees will from now on include a standard paragraph in the dismissal letters they send to employees. Such a dismissal letter already contains a great deal of information, amidst which the information regarding ‘claims against the estate’ will undoubtedly be lost.

In addition, a trustee must consider whether it is also necessary to include a standard paragraph containing information on (at least) statutory interest in letters to other estate creditors, such as landlords. The Supreme Court does not, in fact, limit its ruling on the duty to provide information to employees asestate creditors. Certainly in cases where a landlord is a non-professional party, the trustee his duty to provide information could be triggered. The UWV does not yet appear to be claiming statutory interest on its estate claim in its final statements. The question is whether this judgment will change that. We are reluctant to assume that the trustee has a duty to inform the UWV: the UWV is, par excellence, a party that must be deemed to be aware of its claims against the estate.