Much has been written and said about the temporary Emergency Measure on Bridging Employment (hereinafter: "NOW"). We too have already published articles on the eligibility conditions for the NOW subsidy, and how the NOW subsidy is calculated and how to cash in. It took a while, but now the first ruling on NOW has finally been published.
In this case, in which the applicant had applied for a subsidy on the basis of the second temporary Emergency Measure on Bridging Employment (hereinafter "NOW 2.0"), the question at issue was what to do if the subsidy could not be calculated because the applicant had not filed her wage declaration before the reference date.
The applicant in this case had applied for a grant under the NOW 2.0. The UWV rejected this application. This is because it follows from the NOW 2.0 that the wage bill used to calculate the subsidy is determined on the basis of the wage declaration as submitted by 15 May 2020. However, by 15 May 2020 in this case, no wage declaration had yet been submitted for the months of March 2020 and November 2019. As a result, the UWV could not calculate a wage bill, and therefore had to reject the application.
In the proceedings, the applicant argued that a wage bill was known to the UWV. Due to a human error, the correct values were not entered in the January, February and March 2020 returns. However, this error was rectified on 3 June 2020.
According to the applicant, it was inimical and disproportionate to reject the application. The applicant therefore objected to this rejection and requested the preliminary relief judge to rule that the UWV should still award the subsidy.
Importantly, the NOW 2.0 does not have a hardship clause. A hardship clause means that a government body - in this case the UWV - can deviate from legislation - in this case the NOW 2.0 - if the consequence of applying that regulation would lead to an unforeseen and unreasonably disadvantageous consequence for the citizen or company concerned. The complaint that the judgment is unreasonably prejudicial to its business also underlies the applicant's request in this case.
In its judgment, however, the interim relief judge stated that the NOW 2.0 explicitly states that the assessment of the right to a subsidy must be based on wage data as submitted by 15 May 2020 at the latest. According to the judge, this date is a hard date, which cannot be deviated from.
Because the NOW 2.0 intentionally does not include a hardship clause, the UWV cannot deviate from the NOW 2.0 based on the circumstances of the individual case, according to the interim relief judge. This means that if no wage declaration has been made by 15 May 2020, no advance on the subsidy can be determined either.
In the opinion of the court in preliminary relief proceedings, the UWV therefore properly rejected the applicant's application. The contested decision is expected to be upheld on appeal. The request for a preliminary injunction regarding the subsidy is therefore rejected by the court in preliminary relief proceedings.
It is clear from this ruling that the reference date as set out in both NOW and NOW 2.0 is a hard date. Room for deviation from this reference date, even when there is human error or unforeseen circumstances, does not seem possible due to the lack of a hardship clause.
Want to know whether lodging an objection or appeal against a UWV decision is likely to succeed? The NOW specialists on the Right about NOW team will be happy to help you.
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