Update on DigiD for cross-border workers

Update on DigiD for cross-border workers

ITEM investigates a number of aspects in relation to cross-border work. One obstacle that cross-border workers face involves obtaining a 'DigiD', the Dutch digital identification system. Regarding this obstacle proceedings were initiated in recent months, which have led to a ruling of the District Court of The Hague. Unfortunately, this ruling is not satisfactory, and an appeal has been lodged.  

Case Summary

A person of Belgian nationality works for a company in The Netherlands. She has applied for a DigiD code in the Netherlands. DigiD stands for Digital Identity, which is required for logging in to many public websites and a large number of websites of other organizations that operate in the Netherlands. Without a DigiD code it is impossible, for example, to view one's pension accrual status online; access the inbox on Mijnoverheid.nl, a personal website on public matters; or apply for income-related fiscal compensations known as Toeslagen.

Her DigiD application was refused, however, as a DigiD code is only is provided to a person of Dutch nationality or a resident of the Netherlands, pursuant to the Generic Digital Infrastructure (GDI) Provisions Regulation (Regeling voorzieningen GDI)[1]. This decision was objected to and subsequently appealed. Below is a summary of the proceedings at the District Court of The Hague against the Minister of the Interior and Kingdom Relations, who has the authority to decide on such applications.

European law obliges Member States to award the same social advantages to all citizens of other Member States.[2] The European Court of Justice interprets social advantages as ‘all [...] advantages by means of which the migrant worker is guaranteed the possibility of improving his living and working conditions and promoting his social advancement’ [3]. Examples include study financing and reduction cards for transport.

The Minister of the Interior and Kingdom Relations states that social advantages can also be obtained without a DigiD code, for example by written procedure. According to the Minister, reception of a DigiD does not in itself constitute a social advantage as referred to in the European regulation and therefore does not have to be granted equally to those who reside outside the Netherlands. Finally, the Minister expresses concern about the reliability of identity authentication. She believes that the current scheme can be justified on grounds of the fraud sensitivity of the issue, even if it is contrary to European law. People who reside outside the Netherlands must present a Dutch identity card to receive a DigiD activation code. The Minister claims that the employees who provide the codes can only check the authenticity of Dutch documents.

The applicant disagrees. She believes that the GDI Provisions Regulation should not be applied because it contravenes EU law, constituting a breach of the free movement of workers. The Treaty on the Functioning of the European Union (TFEU) does not allow for making distinctions between workers from different Member States.[4] The applicant believes that she is being subjected to discrimination on the basis of her Belgian nationality since Dutch nationals who reside in Belgium experience no problems when applying for a DigiD code. In addition, the Minister's position that (the use of) a DigiD code is not necessary to enjoy social advantages is wrong-headed. Possession of a DigiD code is useful and a clear advantage in administration. The ability to digitally submit and recall relevant information is particularly useful for frontier workers, in that it prevents the need for cumbersome procedures and physical presence and renders waiting for mail obsolete. For these reasons, DigiD is indeed a social advantage, and no distinction should therefore be made between nationalities. Finally, the applicant argues that the employees who provide the codes can indeed check the authenticity of the identity cards of EU citizens as these cards have been harmonised at EU level. In addition, the registration of foreigners in the Key Register of Persons (Basisregistratie Personen - abbr. BRP), which involves checking the applicant's identity, takes place in the same location. The appellant argues that the justification is insufficient.

The Court considered the question whether the opportunity to use a DigiD code can, in itself, be regarded as a social advantage. The Court noted that a DigiD code is a non-obligatory login means giving access to public services that are also accessible without DigiD. No further rights arise from being granted a DigiD code, nor is it a necessary condition for claiming certain rights. In addition, the Court found that the refusal to grant a DigiD code did not hamper the free movement of workers, nor was the reduction of the administrative burden, if any, sufficient to designate the DigiD code itself as an improvement of the living conditions and social position of employees. The Court did not substantiate or illustrate this any further, nor did it address the practical concerns of the other options that are theoretically possible. The Court did not address the feasibility of checking foreign identity cards since it had ruled that the free movement of workers had not been affected. The Court dismissed the appeal as unfounded.

The applicant lodged an appeal with Administrative Section of the Council of State after the decision.

[1] Article 3, lid 2 Regeling voorzieningen GDI

[2] Article 7, paragraph 2 of Regulation (EU) regulation(EU) No. 1299/2013 of the European Parliament and of the Council of 5 April 2011 on freedom of movement for workers within the Union (Text with EEA relevance).

[3]  HvJ EU 21 juni 1988, ECLI:EU:C:1988:322, r.o. Z0.
[4] Article 45 TFEU.