On January 23, 2025, Advocate General De Bock issued a legal opinion in a case concerning the liability of guarantors when own-risk bearers go bankrupt. This opinion, requested by the President of the Central Appeals Tribunal, provides key insights for employers and insurers.

Case Background

Employers can choose to become own-risk bearers for disability benefits, meaning they do not pay premiums to the Employee Insurance Agency (UWV) but instead bear direct financial responsibility for these payments. A bank or insurer must act as a guarantor. In the cases under review, own-risk bearers went bankrupt, leading the UWV to cover the disability benefits of former employees and seek reimbursement from the guarantors.

Advocate General’s Opinion

The Advocate General concluded that the UWV can directly claim repayment from the guarantor when an own-risk bearer fails to meet its payment obligations. This means:

• A bankruptcy declaration is not required—a payment default is sufficient.
• The UWV is not obligated to claim from the bankrupt estate first.
• No prior investigation into a possible business transfer is needed—the UWV may rely on its policy administration records.
• If the financial risk has transferred to another entity (e.g., due to a business takeover), the original guarantor remains liable if the new entity fails to fulfill its obligations. This applies both before and after the own-risk bearer’s bankruptcy.
• Guarantors can challenge the UWV’s claim in legal proceedings if they can demonstrate that the repayment decision is clearly incorrect or based on new facts and circumstances.

Next Steps in the Legal Process

Although this opinion is a highly authoritative legal recommendation, it is not legally binding. The Central Appeals Tribunal will consider it in its ruling. Parties involved in the case have two weeks to respond, and a final decision is expected in spring 2025.

This case highlights the significant risks for employers and insurers acting as guarantors for own-risk bearers. Do you have questions about your potential liability or legal options?