EU Funds Transfers
Contribution from EU Sponsor
Cross-border activity’ means operating a scheme or trust RAC where the relationship between the sponsoring undertaking (employer), and the members and beneficiaries concerned, is governed by the social and labour law of a Member State other than the State;
The trustees of a scheme or trust RAC shall not accept any contributions to a scheme or trust RAC from an sponsoring company (employer) undertaking unless –
- in respect of the scheme or trust RAC concerned the trustees are authorised by the Pensions Authority , and approval has been granted, or deemed to have been granted in relation to the undertaking concerned, or
- in the case of a scheme or trust RAC which is a receiving scheme or trust RAC the trustees of that scheme or trust RAC are deemed, to be authorised , and approval has been deemed, to have been granted in relation to the undertaking concerned.,
Where the Pensions Authority is not satisfied that the trustees of the scheme or trust RAC, or the scheme or trust RAC, comply, or complies, with the conditions of authorisation, it shall refuse authorisation and shall notify the trustees of the scheme or trust RAC, in writing, of that decision and of the right of appeal within the period referred to.
Where the Pensions Authority has refused to make an authorisation , the trustees of the scheme or trust RAC may, not later than 21 days from the date of the notification, of that decision appeal to the High Court against that decision to refuse authorisation under this section.
On the hearing of an appeal referred to the High Court may make one of the following orders
- an order confirming the decision to refuse authorisation, or
- an order quashing the decision to refuse authorisation.
The Court may also make such ancillary orders as it considers appropriate.”.
Assessment by Authority
The Pensions Authority shall assess the administrative structure, the financial situation of the scheme or trust RAC and the trustee’s compliance with the requirements specified in the Pensions Act and where it is of the opinion that such administrative structure, such financial situation and such trustee compliance are compatible with the proposed cross-border activity, the Pensions Authority shall, within 3 months after the date of receipt of the notification notify in writing –
- the competent authority of the host Member State of any relevant information contained in the notification, and
- the trustees of the scheme or trust RAC that approval has been granted by it in relation to the undertaking specified in the notification.”,
Where the Pensions Authority decides not to grant approval , the Pensions Authority shall, within 3 months of the date of the receipt of the notification, issue a decision in writing to the trustees of the scheme or the trust RAC with the reasons for this decision.
Where –
- the Pensions Authority has issued a decision the trustees of the scheme or trust RAC may within 21 days after the date of issue of the decision), appeal to the High Court against the decision of the Pensions Authority, or
- the Pensions Authority has not communicated the relevant information contained in the notification to the competent authority of the host Member State within 3 months from the date of the receipt by it of that notification, the trustees of the scheme or trust RAC may within 21 days of the expiry of that 3 month period, appeal to the High Court against the failure of the Pensions Authority to act.,
no notification is received from the Pensions Authority uwithin the period specified , approval is deemed to have been granted in relation to the undertaking specified in the notification uat the end of that period.,
Other EU State Regulation
Where the Pensions Authority has notified the competent authority of the host Member State and that competent authority notifies the Pensions Authority of –
- the requirements of social and labour law,
- the information requirements referred to in Title IV of the Directive of 2016,of the host Member State which apply to the cross-border activity, and
- a requirement, if any, under the law of the host Member State to appoint one or more depositaries for the safekeeping of assets and oversight duties,
the Pensions Authority shall, as soon as reasonably practicable following receipt of such notification, by that competent authority, of the matters specified , notify the trustees of the scheme or trust RAC concerned of those matters.,
Where the competent authority of the host Member State , informs the Pensions Authority, of significant changes to the requirements which may affect the characteristics of the scheme or trust RAC concerned insofar as it concerns the cross-border activity, or,where the requirements referred to i apply, those requirements, the Pensions Authority shall, as soon as reasonably practicable following receipt of such changes, notify the trustees of the scheme or trust RAC of those changes.
Transfer EU Scheme to Irish Scheme
The trustees of a scheme or trust RAC may, receive all or part of a pension scheme’s liabilities, technical provisions and other obligations and rights as well as corresponding assets or cash equivalent thereof, from a transferring IORP.
The trustees of a receiving scheme or trust RAC seeking to receive a transfer from a transferring EU scheme (IORP) shall apply for authorisation of a transfer to the Pensions Authority. An application include the following information:
- the written agreement between the transferring IORP and the trustees of the receiving scheme or trust RAC setting out the conditions of the transfer;
- a description of the main characteristics of the transferring IORP’s pension scheme;
- a description of the liabilities or technical provisions to be transferred, and other obligations and rights, as well as corresponding assets or cash equivalent thereof;
- the name and the location of the main administration of the transferring IORP and the Member State in which it is registered or authorised;
- the name and the location of the main administration of the receiving scheme or trust RAC and the Member State in which it is registered or authorised;
- the location of the main administration of the sponsoring undertaking and the name of the sponsoring undertaking;
- evidence that the transfer has been approved by a majority of the members and a majority of the beneficiaries of the pension scheme of the transferring IORP or their representatives in compliance with the requirements of the national law of the Member State concerned, and, where applicable, the approval of the sponsoring undertaking;
- where the transfer results in cross-border activity, the name of the Member State whose social and labour law is applicable to the members and beneficiaries concerned.
The Pensions Authority may request the trustees to provide further information in relation to any of the matters specified. On receipt of the information the Pensions Authority shall, as soon as practicable and not later than 7 days, send a copy of that information to the competent authority of the transferring IORP.
The trustees of a receiving scheme or trust RAC shall not accept a transfer of all or part of a pension scheme’s liabilities, technical provisions, and other obligations and rights, as well as corresponding assets or cash equivalent thereof, from a transferring IORP unless –
- the transfer is authorised by the Pensions Authority under this section, and
- the prior consent of the competent authority of the transferring IORP has been obtained.
PA Assessment
The Pensions Authority shall assess whether –
- all of the information referred to has been provided to it by the receiving scheme or trust RAC,
- the administrative structure, the financial situation of the receiving scheme or trust RAC and the trustees’ compliance with section 59A are compatible with the proposed transfer,
- the long term interests of the members and beneficiaries of the receiving scheme or trust RAC, and the transferred part of the transferring IORP pension scheme, are adequately protected during and after the transfer,
- where the transfer results in cross-border activity, the technical provisions of the receiving scheme or trust RAC are fully funded at the date of the transfer, and
- the assets to be transferred are sufficient and appropriate in accordance with the provisions of the Pensions Act to cover the liabilities, technical provisions and other obligations and rights to be transferred,
and where the Pensions Authority is satisfied that the matters referred to have been complied with, the Pensions Authority shall authorise the transfer of the pension scheme’s liabilities, technical provisions and other obligations and rights, as well as corresponding assets or cash equivalent thereof, from the transferring IORP to the receiving scheme or trust RAC.
PA Decision
The Pensions Authority shall send a notification of the authorisation in writing to –
- the trustees of the receiving scheme or trust RAC, within 3 months of receiving the application referred), and
- the competent authority of the transferring IORP, within 2 weeks of the date of granting the authorisation under this section.
Where the Pensions Authority is not satisfied that any of the matters referred to have been complied with, it shall refuse to authorise the transfer and shall send, to the trustees of the receiving scheme or trust RAC, a notification in writing of – the refusal, and the reasoning for that refusal, within 3 months of the date of the receipt of the application . It shall also send a notification in writing of the refusal to the competent authority of the transferring IORP within 2 weeks of the date of the refusal of the authorisation under this subsection.
Appeal
Where the Pension Authority refuses to authorise the transfer to the receiving scheme or trust RAC or the Pension Authority fails to act within the 3 month period the trustees of the receiving scheme or trust RAC may appeal to the High Court in the case of a refusal to authorise the transfer referred to in paragraph (a), within 21 days from the date on which the Pensions Authority notifies the trustees of its refusal), or in the case of a failure to act referred, the expiry of the 3 month period
On the hearing of an appeal the High Court may make –
- an order confirming the refusal to authorise the transfer or confirming that the Pension Authority has failed to act within the period or
- an order quashing the refusal to authorise the transfer
- and may make such ancillary orders as it considers appropriate.
Regulatory Change
Where the Pensions Authority has authorised a transfer and the transfer results in cross-border activity and the competent authority of the home Member State of the transferring IORP notifies the Pensions Authority of –
- the requirements of social and labour law,
- the information requirements referred to in Title IV of the IORPS Directive of 2016, of the home Member State of the transferring IORP which will apply to the cross-border activity, and
- pa requirement, if any, under the law of the home Member State of the transferring IORP to appoint one or more depositaries for the safekeeping of assets and oversight duties,
the Pensions Authority shall within one week of receipt of such notification, by that competent authority, of the matters specified, notify the trustees of the receiving scheme or trust RAC of those matters.
Deemed Approval of Contributions
Where the Pensions Authority has authorised the transfer of a pension scheme’s liabilities, technical provisions, other obligations, rights, any assets, or cash equivalent referred to from a transferring IORP to a receiving scheme or trust RAC and the transfer results in cross-border activity, the trustees of the receiving scheme or trust RAC concerned shall be deemed –
- to be authorised for cross-border activity, and
- to have been granted approval to accept contributions from the undertaking to which the transfer relates,
The Transfer
The trustees of the receiving scheme or trust RAC may effect the transfer and begin to operate the scheme or trust RAC where –
- a transfer is authorised on receipt of the notification or
- no information on the decision is received from the Pensions Authority by the trustees of the receiving scheme or trust RAC on the expiry of the period referred to at the expiry of the period.
In the case of a disagreement about the procedure or content of an action or inaction of the Pensions Authority or the competent authority of the transferring IORP, including a decision to refuse a cross-border transfer, the Pensions Authority may request EIOPA to carry out non-binding mediation in accordance with point (c) of the second paragraph of Article 31 of Regulation (EU) No. 1094/2010.
The trustees of the receiving scheme or trust RAC shall ensure that the costs of the transfer under this section shall not be borne by the incumbent members and beneficiaries of the scheme or trust RAC.
In the case of the trustees of a small scheme or small trust RAC deemed, to be authorised for cross-border activity, the trustees of that small scheme or small trust RAC shall comply with the provisions of the Act that are prescribed from time to time.
Transfers from Irish Scheme to Scheme in EU State
The trustees of a scheme or trust RAC may, in accordance with this section, transfer all or part of the liabilities, technical provisions and other obligations and rights as well as corresponding assets or cash equivalent thereof, of that scheme or trust RAC to a receiving IORP.
The trustees of a transferring scheme or trust RAC who intend to transfer all or part of a schemes, or trust RAC’s, liabilities, technical provisions and other obligations and rights, as well as corresponding assets or cash equivalent thereof, to a receiving IORP shall not make that transfer unless the trustees have obtained the prior approval to the transfer by –
- a majority of – the members, and) the beneficiaries, that scheme or trust RAC, and
- the sponsoring undertaking, where applicable.
The trustees shall, for the purpose of obtaining the prior approval r
- notify, in writing, the members and beneficiaries of the transferring scheme or trust RAC of the intention to transfer, and
- provide information in that notification concerning the conditions of the transfer.
A transfer referred shall require –
- the prior consent of the Pensions Authority, and
- when the prior consent referred to in paragraph (a) has been obtained, the authorisation of the competent authority of the receiving IORP.
Application for Approval
Where the Pensions Authority receives an application for authorisation under this section of a transfer from the competent authority of the receiving IORP, the Pensions Authority shall assess whether –
- in the case of a partial transfer of the scheme’s or trust RAC’s liabilities, technical provisions, and other obligations and rights, as well as corresponding assets or cash equivalent thereof, the long term interests of the members and beneficiaries of the remaining part of the transferring scheme or trust RAC are adequately protected,
- the individual entitlements of the members and beneficiaries are at least the same after the transfer, and
- the assets corresponding to the scheme or trust RAC to be transferred are, in accordance with, sufficient and appropriate to cover the liabilities, technical provisions and other obligations and rights to be transferred.
Where the Pensions Authority is satisfied of the matters set out above it shall, within 8 weeks of the date of receipt of the application for authorisation of a transfer from the competent authority of the receiving IORP, communicate to that competent authority that it consents to the transfer. Where the Pensions Authority is not satisfied of any of the matters set out, it shall, within 8 weeks of the date of receipt of the application for authorisation of a transfer from the competent authority of the receiving IORP, communicate to that competent authority that it does not consent to the transfer.
Liaison with other State Authority
Where the Pensions Authority receives a notification pursuant to the Directive of 2016 from the competent authority of a receiving IORP and the transfer results in cross-border activity, the Pensions Authority shall inform the competent authority of the receiving IORP of the relevant statutory requirements within 4 weeks from the date of receipt of that notification.
Where a transfer authorised by the competent authority of the receiving IORP results in cross-border activity, the below provisions shall apply in respect of the supervision by the Pensions Authority of the receiving IORP within the State.
In the case of a disagreement about the procedure or content of an action or inaction of the Pensions Authority or the competent authority of the receiving IORP, including a decision to authorise or refuse a cross-border transfer, the Pensions Authority may request EIOPA to carry out non-binding mediation)
The trustees of the transferring scheme or trust RAC shall ensure that the costs of the transfer shall not be borne by the remaining members and beneficiaries of the scheme or trust RAC..
The competent authority of the host Member State, inform the Pensions Authority whether the trustees of the scheme or trust RAC are operating the scheme or trust RAC in a manner which is not consistent with –
- the requirements of social and labour law,
- the information requirements, referred to in Title IV of the Directive of 2016, or
- a requirement, if any, to appoint a depositary under the law,
of that host Member State.