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Digital Identification and the Dutch Digital Government Act

Updated: Aug 9, 2023

The Netherlands is digitizing. More and more services are provided using online transactions. In the ruling of the Gelderland District Court of February 15, 2022, the government attempted to go along with this development by making filing payroll tax returns only possible with Digital Identification (in Dutch: eHerkenning). Digital Identification is, like DigiD, a login tool with which organizations can make their services securely accessible online. This software can only be purchased from a commercial party against payment.

The central question in this case is whether the Tax Authority may require taxpayers to purchase the login tool to file their returns. The Gelderland District Court held that such an obligation may not be imposed. To this end, it considered that, although paragraph 2 of Article 2:16 of the Dutch General Administrative Act offers the government the possibility to prescribe the use of a certain type of electronic signature, there is currently no statutory provision prescribing this. The Regulation of the State Secretary of Finance of March 2, 2020, to which the Tax Administration refers in this regard, is not a statutory regulation within the meaning of the Dutch General Administrative Act on which the Tax Administration may base the obligation to purchase the login tool.

One law on which the Tax and Customs Administration may and will base the obligation to purchase the login tool is the Dutch Digital Government Act, which is currently pending. The bill makes certain standards in electronic government traffic mandatory. The bill also contains rules on information security. Public facilities must meet strict requirements on security, operation and reliability. Finally, the bill covers access to electronic government services using an electronic identifier, such as the login tool mentioned above. As an entrepreneur, you would be wise to keep an eye on the developments surrounding the Dutch Digital Government Act and the obligations it might entail.

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