Government subsidy claims are pledgeable: the Dutch Supreme Court rules on NOW and TVL receivables
HR 12 December 2025, ECLI:NL:HR:2025:1897 (De Weerdt q.q./ING)
When a borrower has received government support — wage subsidies, fixed cost contributions, emergency relief — does the bank's silent pledge over receivables extend to those claims? That question, which arose from the Covid-19 support programmes but carries permanent significance for any lender holding a floating charge over a borrower's assets, was answered by the Dutch Supreme Court on 12 December 2025. The answer is yes: claims under the NOW wage subsidy scheme and the TVL fixed cost relief programme are transferable, and therefore pledgeable, under Dutch law.
Background: the receivables at issue
Wenable B.V. was financed by ING and had granted ING a silent pledge (stil pandrecht) over its current and future receivables as security. When Wenable collapsed into bankruptcy in May 2022, a question arose over two categories of government payments that had landed — or were about to land — in Wenable's account at ING: approximately EUR 764,000 in TVL subsidies paid shortly before the bankruptcy, and approximately EUR 52,000 in NOW subsidies paid by UWV in the months following the bankruptcy declaration.
The liquidator sought a declaration that claims under the NOW and TVL are not pledgeable, and demanded that ING pay those amounts back to the estate. The argument: the subsidies were tied to a specific public purpose — preserving employment and covering fixed costs — and that purpose, combined with the public law basis of the entitlement, rendered the underlying claims non-transferable and therefore incapable of being pledged under Article 3:83(1) of the Dutch Civil Code (BW).
The legal framework: Article 3:83(1) BW
The starting point under Dutch property law is liberal. Pursuant to Article 3:83(1) BW, ownership, limited property rights, and claims are transferable unless the law or the nature of the right precludes transfer. Since pledgeability is derivative of transferability, the question collapses into a single issue: does the nature of a NOW or TVL claim preclude assignment?
The Supreme Court confirms the analytical framework. A claim may be non-transferable by nature in two scenarios: where the performance is tied to personal characteristics of the creditor, or where the nature of the underlying legal relationship is such that the claim cannot be exercised by anyone other than that specific creditor. Importantly, the Court adds a nuance: there is no general rule that money claims against the government under subsidy schemes resist transfer. Whether they do so depends on the content of the specific scheme and the circumstances of the case.
The ruling
Applying that framework to the NOW and TVL, the Supreme Court upholds the District Court's analysis in full. The claims of Wenable against the government under both programmes are ordinary money claims. The fact that the subsidies carried a designated purpose — wage costs under the NOW, fixed costs under the TVL — does not render the underlying claims personal in character. The obligation to apply the subsidy in accordance with the conditions of the scheme rests on the recipient as a matter of public law; it does not transform the civil law nature of the claim. Transferring the claim does not change the content of what is owed: payment of a sum of money. The personal characteristics of the creditor are irrelevant to the performance. The comparison with Staat/Appels — in which the Supreme Court had held that claims by the State are non-transferable by nature — was correctly rejected by the District Court: that case concerned claims flowing in the opposite direction, and its reasoning does not extend to claims on the government.
The claims are therefore transferable, and the silent pledge held by ING attached to them.
What this means for the financing practice
The judgment resolves a question that had generated genuine uncertainty during and after the Covid-19 emergency. Its significance, however, is not limited to that context.
Silent pledge coverage over government receivables. Dutch lending practice routinely includes an omnibus silent pledge over all present and future receivables of the borrower. Lenders had reason to wonder whether subsidy claims, regulatory payments, grid connection fees, and other entitlements rooted in public law fell within that sweep. The Supreme Court's answer — that public law origin does not by itself render a claim non-transferable — gives lenders meaningful comfort that their security package extends to this category of assets.
The energy and infrastructure sector. The judgment has particular relevance for project finance and infrastructure lending, where borrowers frequently hold entitlements against public authorities: feed-in tariffs, SDE++ subsidies, grid fee refunds, capacity payments, and similar regulatory revenue streams. The ruling confirms that a properly constituted silent pledge attaches to these claims, subject to a case-by-case analysis of whether the specific scheme contains features that would displace the default rule of transferability.
Documentation practice. Standard receivables pledge language typically does not carve out public law claims. The judgment confirms that no such carve-out is legally required for NOW- or TVL-type claims, and reinforces the position that broad-form pledge arrangements capture government receivables in the ordinary course.
Purpose restrictions do not equal non-transferability. The most doctrinally significant point in the ruling is the Court's clear statement that a designated purpose embedded in a subsidy scheme — use proceeds for wages, use proceeds for fixed costs — does not of itself prevent the civil law claim from being transferred or pledged. Enforcement of the purpose condition is a matter between the subsidy authority and the recipient; it operates in the public law sphere and does not affect the property law characterisation of the claim.
Interaction with the set-off prohibition. Read alongside the Supreme Court's twin judgments of 13 March 2026 on Article 54 Fw (Jansen q.q./Rabobank and Rabobank/Louwerier q.q.), this ruling completes an important picture. The Mulder q.q./CLBN exception to the set-off prohibition — under which a bank may set off an incoming payment that discharges a claim pledged to it — turns on the existence of a valid pledge over the relevant receivable. The present judgment confirms that a NOW or TVL claim falls within the scope of a standard silent pledge, which in turn determines whether the Mulder exception is available when that payment arrives in the account. As the March 2026 judgments made clear, where no valid pledge exists, the bank must pay the gross incoming amount to the estate. Where a valid pledge does exist, a different analysis applies. The present ruling confirms that the pledge can exist.
Conclusion
The Dutch Supreme Court's judgment of 12 December 2025 settles the pledgeability of government subsidy claims under Dutch law. Claims against public authorities under the NOW and TVL are transferable by their nature, and a standard (silent) pledge can in principle be created over them. The ruling reinforces the breadth of receivables security under Dutch law and provides lenders with clear authority that their Dutch law equivalent to a floating charge (i.e. silent pledge) covers public law payment entitlements — provided always that the specific scheme in question does not contain features that displace the Article 3:83(1) default. For borrowers active in regulated sectors where government payments form a material part of the revenue stream, ensuring that the pledge mechanics are correctly documented and perfected remains as important as ever.
This update is for informational purposes only and does not constitute legal advice. No attorney-client relationship is created thereby.