Employees recruited from outside the Netherlands qualify for the 30% ruling if they meet certain conditions. One of these conditions is that they have been living at a distance of more than 150 km in a straight line from the Dutch border for more than 16 of the 24 months prior to their employment in the Netherlands. This is why employees from Belgium, northern France, a part of Germany, Luxembourg, and the northeast of Kent (UK) do not qualify for the 30% ruling.

Lawsuits

There are a number of lawsuits pending with respect to this issue. Given the importance for the daily practice, an appeal was lodged against a judgment by the District Court of Breda with the Supreme Court of the Netherlands directly.

The Supreme Court

Last Friday, the Supreme Court has rendered judgment in this case.
The Supreme Court supports the argument that the 150 km criterion might be in breach of EU legislation. Employees living in the 150 km region are treated differently to employees outside the 150 km region. In this case – among others – the question is whether this difference in treatment is a prohibited restriction on the free movement of workers.

Due to the fact that existing case law of the European Court of Justice does not provide a final answer, the Supreme Court of the Netherlands has submitted prejudicial questions to this European Court.

Our comment

It is expected that it may take quite a while before the European Court will decide. In the meantime, we advise you to reserve your rights by filing a notice of objection against an adverse ruling by the Dutch Tax Authorities in Heerlen. The Dutch Tax Authorities will not decide until there is clarity.

Should you require further information / explanation please contact us: fkrabbendam@borrie.nl