20 March 2019

Childcare allowance for each PhD candidate

It has appeared in several cases already: PhD candidates with a scholarship who do not receive childcare allowance. Recently, Minister Van Engelshoven of Education, Culture and Science answered parliamentary questions about the right to childcare allowance for PhD candidates. The answers she gives are in line with the well-known arguments of the Dutch Tax Administration. Expertise centre ITEM questions these arguments on the basis of European law.

Disadvantages for PhD candidates because of the focus on their employment relationship

Both at Delft University of Technology and Maastricht University there were several PhD candidates with a scholarship who applied to the Dutch Tax Administration for childcare benefit. For more on this topic, read the previous news items from the ITEM Expertise Centre and the Observant. A few years after the initial application, it was then established that they were not entitled to receive the childcare benefit, with the result that they had to repay thousands of euros.

Doctoral or PhD candidates with a scholarship receive a grant from a foreign institution, which is used for research at Dutch universities. Because of this construction, doctoral candidates with a scholarship miss out on childcare allowance. The right to childcare allowance requires taxable employment, or, in the case of a doctoral candidate, an agreement or employment contract between the doctorate candidate and the university. This is the case if the employee (doctoral student) performs for a certain period of time (1) work for which the employer (university) pays (2) salary and there is a (3) relationship of authority between employee and employer. 

The employee doctoral candidate is appointed and paid by the university and thus meets the three requirements. The Dutch Tax Administration has determined that the doctoral student is a fictitious employee. For external doctoral students, it depends what the exact construction is. The only ones that almost always fall outside the scope of the scheme at the moment are the doctoral candidates with a scholarship. Although doctoral candidates with a scholarship do not have an employment contract with the university where the PhD degree is completed, they do, however, have a contract with the main objective of obtaining a PhD degree [1]. This makes the right to childcare benefit uncertain. Minister Van Engelshoven states that the right to childcare allowance does exist if there is another type of employment contract or, from a fiscal point of view, a fictitious employment relationship between the doctoral student and the university. Whether this is the case depends on the actual interpretation of the relationship, from which an authority relationship may emerge. This determines the tax treatment and therefore the childcare allowance.

In violation of EU law

According to ITEM Expertise Centre, the focus which Minister Van Engelshoven and the Dutch Tax Administration put on the purely legal relationship between doctoral candidate and university and the relationship of authority for the granting of childcare allowance is unjustified. European law is applicable in the case of childcare allowance. An EU directive grants the right to equal treatment with nationals of the host Member State to all holders of a residence permit as 'researchers'. Regardless of the actual relationship between the doctoral candidate and the university, the doctoral candidate with a scholarship (mainly persons with a non-Dutch nationality), as holder of a residence permit, should therefore receive the same benefits as the employee doctoral candidate (a category with mainly persons with the Dutch nationality). 

According to ITEM researcher A. Hoogenboom, a postdoctoral researcher of European Law, the European legislator has deliberately chosen to put the social and economic rights of researchers from third countries on an equal footing with those of researchers within the EU in order to attract more researchers from third countries. It is in the interest of the European Research Area to facilitate an area of free movement for researchers, scientific knowledge and technology. This is currently being hampered by the Dutch childcare allowance system. Next to this, equal treatment is desirable, given that all doctoral candidates, regardless of their qualification, perform work in the form of research and writing a dissertation.

Progress of the trial case

The ITEM Expertise Centre has taken over the case as a trial case, which started in September 2017. The case has recently been reopened and referred to a full court. The second oral hearing is expected to take place this Spring.

The VSNU (Association of Cooperating Dutch Universities) has started conducting research into the different types of doctoral candidates at Dutch universities. Moreover, an evaluation of the doctoral candidate experiment is in progress. Minister Van Engelshoven has indicated that on the basis of these results she will draw up a vision for the system of doctoral candidates. ITEM Expertise Centre stresses the need not to lose sight of the European Research Area and guidelines.

[1] https://www.vsnu.nl/files/documenten/Feiten_en_Cijfers/VSNU_Definitieafspraken_onderzoeksinzet_en_output_KUOZ.PDF p. 11