S.I. No. 592/2005 - Occupational Pension Schemes (Cross-Border) Regulations, 2005

S.I. No. 592 of 2005 .

OCCUPATIONAL PENSION SCHEMES (CROSS-BORDER) REGULATIONS, 2005.

The Minister for Social and Family Affairs, in exercise of the powers conferred on him by section 3 of the European Communities Act 1972 (No. 27 of 1972) and for the purpose of giving effect to Council Directive 2003/41/EC of 3 June 2003¹ hereby makes the following Regulations:

Citation and commencement.

1.  (1)  These Regulations may be cited as the Occupational Pension Schemes (Cross-Border) Regulations, 2005.

(2)  These Regulations come into operation on 23 September 2005.

Definitions.

2.  In these Regulations—

‘the Act’ means the Pensions Act, 1990 (No. 25 of 1990);

‘new scheme’ means a scheme which does not have any members;

Interpretation.

3  (1)  For the purposes and the purposes only of sections 148, 149, 151, 152 and 154 (all inserted by section 37 of the Social Welfare and Pensions Act 2005 (No. 4 of 2005)) of the Act, “prescribed” includes prescribed by regulations made under section 3 of the European Communities Act 1972 .

(2)  For the purposes and the purposes only of section 154 of the Act, “regulations” includes regulations made by the Minister under the European Communities Act 1972 .

Relevant statutory requirements.

4.  For the purposes of the definition of ‘relevant statutory requirements’ in section 148 of the Act, the staturory provisions prescribed are—

(a)  Parts III, V and XI of the Act, and

(b)  sections 59B and 59C of the Act.

Application for authorisation.

5.  An application for authorisation under section 149(2 of the Act shall include the following information—

(a)  For the purposes of satisfying the Board that they comply with section 149(4)(a) and (4)(b), a statement signed by the trustees that, where applicable the requirements relating to—

(i)  disclosure of information under Section 54 of the Act,

(ii)  trustees under Section 59A of the Act and Regulations made thereunder,

(iii) remittance of contributions under section 58A of the Act,

(iv) actuarial funding certificates under section 44 of the Act,

are complied with,

(b)  where applicable, an actuarial funding certificate as provided for in Article 6, and

(c)  the Pensions Board registration number.

Conditions of authorisation.

6.  For the purposes of section 149(4)(c) of the Act—

(a)  in the case of a new scheme to which section 44 of the Act applies, the scheme shall provide an actuarial funding certificate under section 42 of the Act by the expiry of the period of two years beginning on the date on which approval is granted or deemed to be granted under section 151 of the Act;

(b)  in the case of any other scheme to which section 44 of the Act applies, where the most recent annual report prepared under section 55 of the Act does not not include a statement required under subsection (3) of that section, or contains the statement but the actuary does not state therein that he is reasonably satisfied that, if he were to prepare an acturaial funding certificate under section 42 of the Act having an effective date of the last day of the period to which the annual report relates, he would certify that the scheme satisfies the funding standard provided for in section 44 of the Act, the trustees shall provide an actuarial funding certificate with an effective date within the twelve month period prior to the date on which the application for authorisation was made.

Authorisation of small schemes.

7.  For the purposes of section 149(3) of the Act, sections 44, 55, 56 and 59(1B) of the Act are prescribed.

Form of notification.

8.  For the purposes of section 151 of the Act the notification shall—

(a)  in addition to the information specified in section 151(2) of the Act, contain the information set out in the Schedule to these Regulations, and

(b)  provide the information referred to in paragraph (a) in—

(i)  the English language, and

(ii)  the language of the host Member State.

SCHEDULE

INFORMATION REQUIRED IN NOTIFICATION TO ACCEPT CONTRIBUTIONS FROM UNDERTAKING

1.   The date on which authorisation was granted,

2.   The name, address, telephone number, fax number, and e-mail address in the host member state of the undertaking,

3.   The name, address, telephone number, fax number, and e-mail address of the trustees of the scheme,

4.   The Pension Board registration number,

5.   The representative or branch address, telephone number fax number, and e-mail address of the scheme in the host Member State, if applicable,

6.   A list of the Member States in which the scheme is currently operating,

7.   A copy of the scheme rules,

8.   A description of the type of scheme to be offered to the undertaking,

9.   A description of the categories of benefits to be provided under the scheme,

10. A description of the conditions for payment of benefits under the scheme,

11. A description of any guarantees offered under the scheme and who provides such guarantees,

12. A description of any additional coverage offered and who provides such additional coverage,

13. A description of the types of contributions paid by the undertaking and by the members, and

14. A statement by the trustees that they continue to satisfy the requirements of section 149 of the Act.

15. The most recent actuarial funding certificate for the scheme (where applicable).

16. A statement by the trustees of the estimated number of persons who are likely to become active members of the scheme if approval of the undertaking is granted by the Pensions Board.

EXPLANATORY NOTE.

(This note is not part of the Instrument and does not purport to be a legal interpretation.)

Under the terms of Article 20 of Directive 2003/41/EC on the activities and supervision of ocupational pensions employers based in Ireland must be allowed to make contributions to pension institutions based in other European States and equally occupational pension schemes registered in Ireland must be allowed to accept contributions from employers located in other European States.

Section 37 of the Social Welfare and Pensions Act 2005 inserted a new Part XII into the Pensions Act to deal with such cross border schemes. Part XII deals with conditions for prior authorisation to operate as a cross border scheme and the conditions for approval to accept contributions when authorised to operate as a cross border scheme.

These regulations provide for—

—  the member protection provisions of the Pensions Act to be applied to Irish-based members of overseas schemes. The main elements of social and labour law are preservation requirements and the jurisdiction of the Pensions Ombudsman.

—  the information required when an application for authorisation to operate cross-border is submitted to the Board.

—  additional conditions of authorisation.

—  the information required to be submitted to the Pensions Board once a scheme proposes to accept contributions from a foreign employer.

¹O.J. No. L235, 23.9.2003, p.10.