Insolvency
Pensions Act 1990 (as Amended)
Part IV Funding Standard
Priorities on winding up of relevant scheme.
48.-(1) In applying the resources of a relevant scheme which has been wound up after 1 January 1997, the trustees shall discharge the liabilities of the scheme for the following benefits in the following order-
(a) where the scheme is wound up on or before 1 June 2002-
(i) firstly, the benefits specified in paragraph 1 of the Third Schedule to or in respect of those persons, who, at the date of the winding up, were within the categories referred to in that paragraph, to the extent that they are not already discharged, and
(ii) secondly, the benefits specified in paragraphs 2 and 3 of the Third Schedule to or in respect of those members of the scheme who, at the date of the winding up, were within the categories referred to in those paragraphs, to the extent that they are not already discharged,
before discharging the liabilities of the scheme for other benefits, and
(b) where the scheme is wound up after 1 June 2002-
(i) firstly, all additional benefits secured or granted by way of additional voluntary contributions or a transfer of rights from another scheme to which paragraph 2 of the Third Schedule relates to the extent that the rights to which the transfer relates were originally secured or granted by way of additional voluntary contributions,
(ii) secondly, the benefits specified in paragraph 1 of the Third Schedule to or in respect of those persons, who, at the date of the winding up, were within the categories referred to in that paragraph, to the extent that they are not already discharged, and
(iii) thirdly, the benefits specified in paragraphs 2, 3 and 4 of the Third Schedule to or in respect of those members of the scheme who, at the date of the winding up, were within the categories referred to in those paragraphs, to the extent that they are not already discharged,
before discharging the liabilities of the scheme for other benefits.
[(1A) Notwithstanding subsection (1), in applying the resources of a relevant scheme that is wound up after the passing of the Social Welfare and Pensions Act 2009, or had wound up and had not discharged any of the liabilities of the scheme at the date of the passing of the Social Welfare and Pensions Act 2009, the trustees shall discharge the liabilities of the scheme for the followingbenefits in the following order:
(a) firstly, all additional benefits secured or granted by way of additional voluntary contributionsor a transfer of rights from another scheme to which paragraph 2 of the Third Schedule relates to the extent that the rights to which the transfer relates were originally secured or granted by way of additional voluntary contributions;
(b) secondly, the benefits (not including post-retirement increases in such benefits) specified inparagraph 1 of the Third Schedule to or in respect of those persons, who, at the date of the winding up of the scheme, were within the categories referred to in that paragraph, to the extent that those benefits have not already been discharged;
(c) thirdly, the benefits (not including post-retirement increases in such benefits) specified inparagraphs 2, 3 and 4 of the Third Schedule to or in respect of those members of the scheme who, at the date of winding up of the scheme, were within the categories referred to in those paragraphs, to the extent that those benefits have not already been discharged; and
(d) fourthly, the benefits specified in paragraphs 1, 2, 3 and 4 of the Third Schedule to or in respect of those persons and members of the scheme, who at the date of the winding up of the scheme, were within any of the categories referred to in any of those paragraphs, to the extent that those benefits have not already been discharged,
before discharging the liabilities of the scheme for other benefits.
[(1AA) Notwithstanding subsections (1) and (1A), in applying the resources of a relevant scheme, other than a relevant scheme referred to in subsection (1AB), that is wound up after the passing of theSocial Welfare and Pensions (No. 2) Act 2013, the trustees shall discharge the liabilities of therelevant scheme for the following benefits in the following order:
(a) firstly-
(i) all additional benefits secured or granted by way of additional voluntary contributions or a transfer of rights from another scheme to which paragraph 2 of the Third Schedule relates to the extent that the rights to which the transfer relates were originally secured or granted by way of additional voluntary contributions, and
(ii) benefits, the rate or amount of which is directly determined by the accumulated value of the contributions paid by or in respect of a member, or a transfer of rights from another scheme to the extent that the rate or amount of the rights to which the transfer relates is directly determined by the accumulated value of the contributions paid by or in respect of the member;
(b) secondly, in respect of the benefits (not including post-retirement increases in such benefits) specified in paragraph 1 of the Third Schedule to or in respect of those persons who, at the date of the winding up of the scheme, were within the categories referred to in that paragraph, the portion specified in subsection (1AC), to the extent that those benefits have not already been discharged;
(c) thirdly, 50 per cent of the benefits (not including post-retirement increases in such benefits) specified in paragraphs 2, 3 and 4 of the Third Schedule to or in respect of those members of the scheme who, at the date of the winding up of the scheme, were within the categories referred to in those paragraphs, to the extent that those benefits have not already been discharged;
(d) fourthly, the benefits (not including post-retirement increases in such benefits) specified inparagraph 1 of the Third Schedule to or in respect of those persons who, at the date of the winding up of the scheme, were within the categories referred to in that paragraph, to the extent that those benefits have not already been discharged;
(e) fifthly, the benefits (not including post-retirement increases in such benefits) specified inparagraphs 2, 3 and 4 of the Third Schedule to or in respect of those members of the scheme who, at the date of the winding up of the scheme, were within the categories referred to in those paragraphs, to the extent that those benefits have not already been discharged; and
(f) sixthly, the benefits specified in paragraphs 1, 2, 3 and 4 of the Third Schedule to or in respect of those persons and members of the scheme who, at the date of the winding up of the scheme, were within any of the categories referred to in any of those paragraphs, to the extent that those benefits have not already been discharged, before discharging the liabilities of the scheme for other benefits.
(1AB) Notwithstanding subsections (1) and (1A), in applying the resources of a relevant scheme that is wound up after the passing of the Social Welfare and Pensions (No. 2) Act 2013 and at the date of the winding up the employer participating in the relevant scheme is, or where more than one employer participates in such scheme, all of the employers participating in the scheme are, insolvent for the purposes of the Act of 1984, the trustees shall discharge the liabilities of therelevant scheme for the following benefits in the following order:
(a) firstly-
(i) all additional benefits secured or granted by way of additional voluntary contributions or a transfer of rights from another scheme to which paragraph 2 of the Third Schedule relates to the extent that the rights to which the transfer relates were originally secured or granted by way of additional voluntary contributions, and
(ii) benefits, the rate or amount of which is directly determined by the accumulated value of the contributions paid by or in respect of a member, or a transfer of rights from another scheme to the extent that the rate or amount of the rights to which the transfer relates is directly determined by the accumulated value of the contributions paid by or in respect of the member;
(b) secondly, 50 per cent of the benefits specified in paragraph 1 of the Third Schedule to or in respect of those persons who, at the date of the winding up of the scheme, were within the categories referred to in that paragraph, to the extent that those benefits have not already been discharged;
(c) thirdly, 50 per cent of the benefits specified in paragraphs 2, 3 and 4 of the Third Schedule to or in respect of those members of the scheme who, at the date of the winding up of the scheme, were within the categories referred to in those paragraphs, to the extent that thosebenefits have not already been discharged;
(d) fourthly, in respect of the benefits (not including post-retirement increases in such benefits) specified in paragraph 1 of the Third Schedule to or in respect of those persons who, at the date of the winding up of the scheme, were within the categories referred to in that paragraph-
(i) the annual amount, or
(ii) €12,000,
whichever is the lesser, to the extent that those benefits have not already been discharged;
(e) fifthly, the benefits (not including post-retirement increases in such benefits) specified inparagraph 1 of the Third Schedule to or in respect of those persons who, at the date of the winding up of the scheme, were within the categories referred to in that paragraph, to the extent that those benefits have not already been discharged;
(f) sixthly, the benefits (not including post-retirement increases in such benefits) specified inparagraphs 2, 3 and 4 of the Third Schedule to or in respect of those members of the scheme who, at the date of the winding up of the scheme, were within the categories referred to in those paragraphs, to the extent that those benefits have not already been discharged; and
(g) seventhly, the benefits specified in paragraphs 1, 2, 3 and 4 of the Third Schedule to or in respect of those persons and members of the scheme who, at the date of the winding up of the scheme, were within any of the categories referred to in any of those paragraphs, to the extent that those benefits have not already been discharged, before discharging the liabilities of the scheme for other benefits.
(1AC) For the purposes of paragraph (b) of subsection (1AA), the portion of the benefits shall be-
(a) where the annual amount is €12,000 or less-
(i) the annual amount, or
(ii) €12,000,
whichever is the lesser, or
(b) where the annual amount is greater than €12,000 and is less than €60,000-
(i) €12,000, or
(ii) 90 per cent of the annual amount,
whichever is the greater, or
(c) where the annual amount is €60,000 or more-
(i) €54,000, or
(ii) 80 per cent of the annual amount,
whichever is the greater.]
(1B) The liabilities of the scheme in respect of the benefits to which paragraph (d) of subsection (1A) applies shall rank equally between each other and shall be paid in full unless the resources of the scheme are insufficient to meet those liabilities, in which case they shall abate in equal proportions as between each other.]
[(1C) The liabilities of the relevant scheme in respect of the benefits referred to in-
(a) each of the paragraphs (a) to (f) of subsection (1AA) shall rank equally between each other and shall be paid in full unless the resources of the relevant scheme are insufficient to meet those liabilities, in which case they shall abate in equal proportions as between each other, and
(b) each of the paragraphs (a) to (g) of subsection (1AB) shall rank equally between each other and shall be paid in full unless the resources of the relevant scheme are insufficient to meet those liabilities, in which case they shall abate in equal proportions as between each other.
(1D) Where in the discharge of the liabilities of a relevant scheme under subsection (1AB), the resources of the relevant scheme are not sufficient to discharge, in whole or in part, the liabilities of the scheme in respect of the benefits referred to in paragraphs (b), (c) and (d) of subsection (1AB), or any of those benefits referred to in any of those paragraphs, the Minister for Finance shall, in accordance with section 48A, pay the amount certified under section 48A that is required to provide for the discharge of those liabilities in respect of those benefits in accordance with those paragraphs.]
(2) If, after discharging the liabilities of a scheme to which [[subsection (1)(b), (1A), (1AA) or (1AB) applies] for the benefits specified in those subsections] and any other benefits arising under the rules of the scheme, any resources of the scheme remain, then, before returning any part of the resources of the scheme to the employer, the trustees shall, to the extent that they have not already done so, provide out of the resources of the scheme for revaluation of the benefitsspecified in paragraph 4 of the Third Schedule, calculated in accordance with section 33 as though these benefits were specified in paragraphs 2 and 3 of the Third Schedule.
(3) In applying the resources of a relevant scheme which has been wound up, the trustees may discharge, notwithstanding anything contained in the rules of the scheme and without the consent of the member concerned, the liability of the scheme for benefits payable to or in respect of any member by-
(a) making a payment to another funded scheme which provides or is capable of providing long service benefit and of which he is a member or a prospective member, or
[(b) the making of one or more payments under policies or contracts of assurance that are effected on behalf of the member with one or more undertakings (within the meaning of theInsurance Act 1989) [which policies or contracts are-]
(i) [approved by the Revenue Commissioners] under Chapter 1 of Part 30 of the Taxes Consolidation Act 1997, or
(ii) [in a form which has been certified by the Board] under section 53B (inserted bysection 42 of the Social Welfare and Pensions Act 2010),
and which policies or contracts of assurance shall not be deemed to be an occupational pension scheme for the purposes of this Act, or]
(c) where so prescribed, and in accordance with such conditions as may be prescribed, the making of a payment to the trustees, custodians, managers or administrators of an arrangement for the provision of retirement benefits established within the State, not being an arrangement of the kind mentioned in paragraphs (a) or (b),
of an aggregate amount not less than the actuarial value of the benefits payable on the winding up under the rules of the scheme, subject always to [subsections (1), (1A), (1AA), (1AB) and (2)].
[(3A) In purchasing an annuity in substitution for an index-linked benefit in a relevant scheme which has been wound up or in making a payment or payments under subsection (3), the trustees of a scheme which does not have sufficient resources to discharge all of the liabilities of the scheme forbenefits specified [in subsections (1)(b), (1A), (1AA) and (1AB)] may, notwithstanding anything contained in the rules of the scheme and without the consent of the member concerned, discharge the liability of the scheme for an index-linked benefit by purchasing an annuity with fixed rate increases or deem the actuarial value of an index-linked benefit to be equal to the actuarial valueof a benefit with fixed rate increases, provided that such fixed rate increases are calculated in accordance with any applicable guidance issued by the Society of Actuaries in Ireland in relation to the preparation of [actuarial funding certificates or funding standard reserve certificates] in accordance with section 42.
(3B) If the liabilities of a scheme for index-linked benefits are reduced under subsection (3A) any resources which remain in the scheme after discharging the liabilities of the scheme for all benefitsspecified [in subsections (1)(b), (1A), (1AA) and (1AB)] shall be applied in increasing the benefitspayable to and in respect of those persons specified [in subsections (1)(b)(ii), (1A)(b), (1AA)(b), (1AA)(d), (1AB)(b), (1AB)(d) and (1AB)(e)] who were entitled to index-linked benefits under the rules of the scheme at the date of the winding up.]
(4) Nothing in this section requires liabilities for benefits to be discharged before liabilities for expenses, fees and costs associated with the winding up of the scheme.]
[(5) For the purposes of this section, a relevant scheme is wound up on the date of the doing of such act, the happening of such event, or the making of such decision as, under the rules of the scheme, requires that the scheme be wound up, and “date of the winding up” shall, in relation to arelevant scheme, be construed accordingly.
(6) References in the Third Schedule to effective date of the certificate shall, for the purposes of this section, be construed as references to the date of the winding up of the relevant schemeconcerned.]
[(7) In this section-
(a) references to a post-retirement increase shall not include a postretirement increase which became payable before the date of the winding up, and
(b) references to an employer being insolvent for the purposes of the Act of 1984 shall be construed in accordance with that Act.
(8) In this section-
‘Act of 1984’ means the Protection of Employees (Employers’ Insolvency) Act 1984;
‘annual amount’, in relation to benefits, means the benefits payable to or in respect of a person in the form of an annual pension expressed as an annual amount.]
48A.
Payment of certain amounts by Minister for Finance where resources of relevant scheme are not sufficient
to discharge liabilities in respect of benefits referred to in section 48(1D).
48A.-(1) Where the resources of a relevant scheme referred to in section 48(1D) are not sufficient to discharge the liabilities, referred to in section 48(1D), of that scheme in respect of the benefitsreferred to in section 48(1D)-
(a) the trustees of that scheme shall direct the actuary appointed to that scheme to prepare a statement of the difference between those liabilities in respect of the benefits referred to insection 48(1D) and the resources of that scheme that are available to discharge those liabilities in respect of those benefits, and
(b) the statement referred to in paragraph (a) shall-
(i) include a statement of the amount required to discharge the liabilities in respect of thebenefits referred to in that paragraph (in this section referred to as the ‘relevant amount’), and
(ii) include a statement by the actuary appointed to the relevant scheme that the relevant amount is the amount required for the discharge of the liabilities of that relevant scheme in respect of the benefits referred to in section 48(1D).
(2) The trustees referred to in subsection (1) shall-
(a) apply to the Board to certify the relevant amount concerned, and
(b) submit a copy of the statement referred to in subsection (1) with that application.
(3) Where the Board is satisfied that-
(a) the statement referred to in subsection (1) has been prepared in accordance with guidelines and guidance notes prescribed in regulations made by the Minister under subsection (11), and
(b) the relevant amount has been calculated in accordance with those guidelines and guidance notes,
the Board shall certify the relevant amount as being the amount required for the discharge of the liabilities of the relevant scheme concerned in respect of the benefits referred to in section 48(1D)and shall, when certifying the relevant amount, have regard to the guidelines made by the Ministerunder subsection (10)(b).
(4) Where the Board has certified a relevant amount under subsection (3) (in this section referred to as the ‘certified amount’), the trustees shall-
(a) apply to the Minister to request the payment by the Minister for Finance of an amount equal to the certified amount for the purpose of the discharge by the trustees of the liabilities of the relevant scheme in respect of the benefits referred to in section 48(1D), and
(b) include in such application the statement referred to in subsection (1).
(5) Where, in respect of an application under subsection (4), the Minister is satisfied that the certified amount has been certified in accordance with subsection (3), the Minister shall request the Minister for Finance to pay out of the Central Fund to the trustees of the relevant scheme concerned, an amount equal to the certified amount for the purpose of the discharge, by the trustees of thatrelevant scheme, of the liabilities of that scheme in respect of the benefits referred to in section 48(1D).
(6) The Minister for Finance shall, in consultation with the Minister for Public Expenditure and Reform, approve the request made under subsection (5).
(7) Where a request has been approved under subsection (6), the Minister for Finance shall pay out of the Central Fund to the trustees of the relevant scheme concerned an amount equal to the certified amount for the purpose of the discharge, by the trustees of that scheme, of the liabilities of that scheme in respect of the benefits referred to in section 48(1D).
(8) Where the Minister for Finance pays an amount to the trustees of a relevant scheme under subsection (7), the trustees of that scheme shall use that amount for the purpose of discharging the liabilities of the relevant scheme for the benefits referred to in section 48(1D).
(9) The amount referred to in subsection (7) that is required by the Minister for Finance for the making of a payment under that subsection shall be paid out of the Central Fund or the growing product thereof.
(10) The Minister shall-
(a) make, in consultation with the Board, guidelines in respect of the preparation of the statement referred to in subsection (1) and an application under subsection (2), and
(b) make guidelines in respect of the certification by the Board of a relevant amount under subsection (3).
(11) The Minister may make regulations requiring the trustees of a relevant scheme to comply with-
(a) guidelines or guidance notes issued by the Board under section 10, and
(b) guidelines made by the Minister under subsection (10)(a),
in respect of the preparation of the statement referred to in subsection (1) and an application by the trustees under subsection (2).
(12) The Minister shall, 12 months after the passing of the Social Welfare and Pensions (No. 2) Act 2013and on each anniversary of such passing, prepare a report on the applications made under subsection (4), the requests made by the Minister to the Minister for Finance under subsection (5) and the amounts paid out of the Central Fund under subsection (7) during the preceding 12 months and shall, as soon as practicable, after the preparation of the report, cause a copy of the report to be laid before each House of the Oireachtas.]
Part IV – Funding Standard
49.
Funding proposal
49.
[(1) Where, in accordance with the provisions of section 43, the trustees of a scheme (other than aregulatory own funds scheme)-
(a) submit an actuarial funding certificate which certifies that at the effective date of the certificate the scheme does not satisfy the funding standard, or
(b) on or after 1 January 2016, submit a funding standard reserve certificate which certifies that at the effective date of the certificate the scheme does not satisfy the funding standard reserve,
they shall, subject to regulations under subsection (2A), submit to the Board a proposal (in this Part referred to as a ‘funding proposal’) in accordance with the provisions of this section.]
[(2) A funding proposal shall-
(a) contain a proposal designed to ensure that, in the opinion of the actuary-
(i) the scheme could reasonably be expected to satisfy the funding standard at the effective date of the next actuarial funding certificate or any later date specified under subsection (3) or (3B) where the funding proposal is submitted before 1 January 2016 and the effective date of the next actuarial funding certificate or any later date specified under subsection (3) or (3B) is before that date, and
(ii) in any other case, the scheme could reasonably be expected to satisfy the funding standard at the effective date of the next actuarial funding certificate or any later date specified under subsection (3) or (3B) and the funding standard reserve at the effective date of the next funding standard reserve certificate or any later date specified under subsection (3B),
and
(b) comply with regulations made under subsection (2A),
(c) be certified by the actuary as meeting the requirements of paragraph (a),
(d) be signed by or on behalf of the employer and by or on behalf of the trustees of the scheme, in each case signifying agreement to the proposal, and
(e) be submitted by the trustees of the scheme with the actuarial funding certificate or funding standard reserve certificate to which it relates.]
[(2A) Regulations under this section may-
(a) require the actuary, in certifying a funding proposal under subsection (2) or the failure of thescheme to satisfy the funding standard in accordance with subsection (3), to comply with any applicable professional guidance issued by the Society of Actuaries in Ireland and specified in the regulations or with any other applicable guidance issued by any other person (including the Board or the Minister) and specified in the regulations,
(b) require the trustees to comply with any applicable guidance issued by any person (includingthe Board or the Minister), and specified in the regulations, setting out-
(i) the requirements with which a funding proposal shall comply, and
(ii) the terms on and the circumstances in which the trustees are required to notify the Board of a failure by any person to comply with a term of a funding proposal,
(c) prescribe the terms on and circumstances in which-
(i) a date later than the effective date of the next actuarial funding certificate or nextfunding standard reserve certificate may be specified by the Board in accordance with subsection (3B),
(ii) the trustees are not required to submit a funding proposal under subsection (1), and
(iii) the Board may, by notice in writing to the trustees, declare that a funding proposal is no longer a valid funding proposal for the purposes of this section where there has been a failure to comply with a term of the funding proposal or the trustees of thescheme so request,
and
(d) prescribe guidance issued by any person (including the Board or the Minister) in respect of the matters specified in subparagraphs (i) to (iii) of paragraph (c).]
[(3) [Before 1 June 2012, subject to regulations under this section], the Board, on application to it in that behalf by the trustees of a scheme [(other than a regulatory own funds scheme)], may, in relation to the scheme, in the circumstances and on the terms that it considers appropriate, for the purposes of subsection [(2)(a)(i)] specify a date later than the effective date of the next actuarial funding certificate-
(a) in a case where the actuary concerned certifies that the failure of the scheme to satisfy thefunding standard relates wholly or mainly to either or both of the following:
(i) the assets of the scheme being less than expected where-
(I) this is due to the performance of relevant markets in relation to investments made with the resources of the scheme and that the performance of those markets in relation to those investments is not inconsistent with the performance generally of relevant markets for investment in the same period,
and
(II) having regard to the performance generally of relevant markets for investment,the Board considers that specifying a later date is necessary or appropriate and not contrary to the interests of the members of the scheme;
or
(ii) the liabilities of the scheme being greater than expected where-
(I) this is due to such factors and circumstances as shall be prescribed, and
(II) the Board considers that specifying a later date is necessary or appropriate and not contrary to the interests of members of the scheme;
or
(b) in the case of a scheme referred to in [section 43(1)(d) or 43(1)(e), where], the Boardconsiders that specifying a later date is necessary or appropriate and not contrary to the interests of members of the scheme.]
(3A) The Board, on application to it in that behalf by the trustees of a scheme [(other than a regulatory own funds scheme)], may, in relation to the scheme, in the circumstances and on the terms that it considers appropriate, modify the requirements of paragraphs [(b), (c), (d) or (e)] of subsection (2) where-
(a) administrative difficulties have arisen from circumstances outside the control of the trustees of the scheme or schemes,
(b) the modification does not materially alter those paragraphs, and
(c) the Board considers the modification necessary or appropriate and that it is not contrary to the interests of the members of the scheme.]
[(3B) On or after 1 June 2012, the Board on application to it in that behalf by the trustees of a scheme(other than a regulatory own funds scheme) may, in relation to the scheme, on the terms and in the circumstances prescribed or set out in guidance prescribed by regulations made under subsection (2A)-
(a) for the purposes of subsection (2)(a)(i) specify a date later than the effective date of the next actuarial funding certificate, and
(b) for the purposes of subsection (2)(a)(ii) specify a date later than the effective date of the next actuarial funding certificate or funding standard reserve certificate.]
[(4) In this section “employer” means the employer who undertakes the role of principal employer for the purposes of such scheme’s approval by the Revenue Commissioners under [Chapter 1 of Part 30 of the Taxes Consolidation Act, 1997] [or, where the Board is of the opinion that there is no such principal employer or that it is not possible to identify such employer, such other employer or employers participating in the scheme as the Board, in its absolute discretion, may, on application to it by the trustees of the scheme, specify and notify in writing to the trustees].]
50.
Direction by Board to trustees
50.-
[[(1) The Board may, by notice in writing, following an application by the trustees or otherwise, direct the trustees of a relevant scheme (other than a regulatory own funds scheme) to take such measures as may be specified by the Board in the notice or, if no measures are specified in the notice, such measures as may be necessary in respect of members of the scheme then in relevant employment, who have not reached normal pensionable age and members whose service inrelevant employment has ceased, who have not reached normal pensionable age and who have an entitlement to a preserved benefit or any other benefit under the scheme, the payment of which has not commenced, to reduce the benefits that would be payable to or in respect of those members from the scheme where-
(a) the trustees of the scheme fail to submit an actuarial funding certificate within the period specified in section 43,
(b) the actuarial funding certificate certifies that the scheme does not satisfy the funding standard and the trustees of the scheme have not submitted a funding proposal in accordance with section 49,
(c) the actuarial funding certificate certifies that the scheme does not satisfy the funding standard and the trustees of the scheme have submitted a funding proposal in accordance with section 49,
(d) the Board consents to the amendment of a scheme in accordance with section 50A (inserted by section 18 of the Social Welfare and Pensions Act 2009),
(e) the trustees of the scheme fail to submit a funding standard reserve certificate within the period specified in section 43,
(f) the funding standard reserve certificate certifies that the scheme does not satisfy the funding standard reserve and the trustees of the scheme have not submitted a funding proposal in accordance with section 49, or
(g) the funding standard reserve certificate certifies that the scheme does not satisfy the funding standard reserve and the trustees of the scheme have submitted a funding proposal in accordance with section 49.]
[(1A) The Board may, by notice in writing, following an application by the trustees or otherwise, direct the trustees of a scheme (other than a regulatory own funds scheme) to take such measures as may be specified by the Board in the notice or, if no measures are specified in the notice, such measures as may be necessary to reduce future increases in benefits payable from the scheme to or in respect of persons receiving benefits under the scheme or persons who have reached normal pensionable age, where-
(a) the trustees of the scheme fail to submit an actuarial funding certificate within the period specified in section 43,
(b) the actuarial funding certificate certifies that the scheme does not satisfy the funding standard and the trustees of the scheme have not submitted a funding proposal in accordance with section 49,
(c) the actuarial funding certificate certifies that the scheme does not satisfy the funding standard and the trustees of the scheme have submitted a funding proposal in accordance with section 49,
(d) the Board consents to the amendment of a scheme in accordance with section 50A (inserted by section 18 of the Social Welfare and Pensions Act 2009),
(e) the trustees of the scheme fail to submit a funding standard reserve certificate within the period specified in section 43,
(f) the funding standard reserve certificate certifies that the scheme does not satisfy the funding standard reserve and the trustees of the scheme have not submitted a funding proposal in accordance with section 49, or
(g) the funding standard reserve certificate certifies that the scheme does not satisfy the funding standard reserve and the trustees of the scheme have submitted a funding proposal in accordance with section 49.]]
[(1B) The Board may, by notice in writing, following an application by the trustees or otherwise, direct the trustees of a relevant scheme (other than a regulatory own funds scheme) to take such measures as may be specified by the Board in the notice or, if no measures are specified in the notice, such measures as may be necessary to reduce, in accordance with subsection (1C) and subject to subsection (1D), the benefits payable from the scheme to or in respect of persons receiving benefits under the scheme or persons who have reached normal pensionable age, where-
(a) the trustees of the scheme fail to submit an actuarial funding certificate within the period specified in section 43,
(b) the actuarial funding certificate certifies that the scheme does not satisfy the funding standard and the trustees of the scheme have not submitted a funding proposal in accordance with section 49,
(c) the actuarial funding certificate certifies that the scheme does not satisfy the funding standard and the trustees of the scheme have submitted a funding proposal in accordance with section 49,
(d) the Board consents to the amendment of a scheme in accordance with section 50A,
(e) the trustees of the scheme fail to submit a funding standard reserve certificate within the period specified in section 43,
(f) the funding standard reserve certificate certifies that the scheme does not satisfy thefunding standard reserve and the trustees of the scheme have not submitted a funding proposal in accordance with section 49, or
(g) the funding standard reserve certificate certifies that the scheme does not satisfy the funding standard reserve and the trustees of the scheme have submitted a funding proposal in accordance with section 49.
(1C) A reduction in the benefits referred to in subsection (1B) shall, subject to subsection (1D), be made as follows:
(a) where the annual amount is €12,000 or less, no reduction shall be made from such annual amount;
(b) where the annual amount is greater than €12,000 and is less than €60,000, the reduction in such annual amount shall not exceed 10 per cent;
(c) where the annual amount is €60,000 or more, the reduction in such annual amount shall not exceed 20 per cent.
(1D) Where-
(a) the reduction referred to in subsection (1C) would result in the annual amount being reduced to less than €12,000, that reduction shall operate to reduce such annual amount to €12,000, and
(b) the annual amount is €60,000 or more and the reduction referred to in subsection (1C) would result in such annual amount being reduced to less than €54,000, that reduction shall operate to reduce such annual amount to €54,000.]
[[(2) In relation to a direction made under subsection (1)[, (1A) or (1B)]-
(a) paragraph 2(2) of the Second Schedule and paragraph 4(b)(i)(I) of the Third Schedule shall not apply in so far only as they conflict with the reduction in benefits pursuant to such a direction, and
(b) the benefits which may be reduced following such a direction shall include-
(i) a preserved benefit where an entitlement to the preserved benefit has arisen, and
(ii) any revaluation of a preserved benefit under section 33 where such revaluation relates to a revaluation year which ends,
prior to the date with effect from which measures are put in place pursuant to the direction.]
[(2A) A reduction in benefits effected pursuant to a direction under subsection (1)[, (1A) or (1B)] shall-
(a) be such as, in the opinion of the actuary concerned, ensures that, immediately following the reduction, the scheme will satisfy the funding standard and, on or after 1 January 2016, thefunding standard reserve, or
(b) in the case of a scheme referred to in paragraph (c) or (g) of subsection (1)[, paragraph (c) or (g) of subsection (1A) or paragraph (c) or (g) of subsection (1B)], be such as, in the opinion of the actuary concerned, ensures that the scheme could reasonably be expected to-
(i) satisfy the funding standard at the effective date of the next actuarial funding certificate or any later date specified under subsection (3) or (3B) of section 49 where the funding proposal is submitted before 1 January 2016 and the effective date of the next actuarial funding certificate or any later date specified under the said subsection (3) or (3B) is before that date, and
(ii) in any other case, satisfy the funding standard at the effective date of the nextactuarial funding certificate or any later date specified under subsection (3) or (3B) of section 49 and the funding standard reserve at the effective date of the next funding standard reserve certificate or any later date specified under the said subsection (3B).]]
[(2B) Where the Pensions Authority gives a direction under subsection (1), (1A) or (1B), other than on application by the trustees, the trustees of the scheme shall-
(a) within one month of the date of the notice, notify in writing such persons as may be prescribed of the following-
(i) the direction,
(ii) the measures specified by the Pensions Authority in the notice or, if no measures are specified, such measures as the trustees consider may be necessary to reduce thebenefits under the scheme, and
(iii) the right of such persons as may be prescribed to bring an appeal to the High Court under subsection (6),
and
(b) submit a copy of the notification made under paragraph (a) to the Pensions Authority not later than 10 days after the date of the notification.]
[(3) Where the Board gives a direction under subsection (1)[, (1A) or (1B)], the trustees of the schemeshall-
(a)
(i) within one month of the date of the notice, put in place such measures as may be specified in the notice or, if no measures are specified, such measures as may be necessary to reduce the benefits under the scheme, in respect of all or any of the-
(I) members of the scheme then in relevant employment who had not reached normal pensionable age,
(II) members whose service in relevant employment has ceased and who have not reached normal pensionable age and who have an entitlement to a preserved benefit or any other benefit under the scheme, and
(III) persons receiving benefits under the scheme or who have reached normal pensionable age,
that would be payable to or in respect of them from the scheme, but, in respect of persons specified in clause (III), only those benefits referred to in subsection (1A) [or (1B)], and
(ii) within a period of 2 months of the date of the notice, or such longer period as the Board considers appropriate, notify the members of the scheme and other persons who are receiving benefits under the scheme or who have reached normal pensionable age, of the reduction in benefits,
(b) within a period of 3 months of the date of the notice, submit to the Board-
(i) confirmation that the trustees have complied with paragraph (a),
(ii) copies of the notifications issued to members of the scheme and other persons under subparagraph (ii) of paragraph (a), and
(iii)
(I) an actuarial funding certificate and, on or after 1 January 2016, a funding standard reserve certificate certifying that at the effective date, being the effective date of the reduction in benefits, the scheme satisfies the funding standard and, on or after 1 January 2016, the funding standard reserve, or
(II) in the case of a scheme where a funding proposal has been submitted to the Board pursuant to section 49 and paragraph (c) or (g) of subsection (1)[, paragraph (c) or (g) of subsection (1A) or paragraph (c) or (g) of subsection (1B)] applies, a statement by an actuary in such form as may be prescribed that he or she is reasonably satisfied that at the effective date of the reduction inbenefits-
(A) the scheme will satisfy the funding standard at the effective date of the nextactuarial funding certificate or, where applicable, any later date specified under subsection (3) or (3B) of section 49 where the funding proposal has been submitted before 1 January 2016 and the effective date of the nextactuarial funding certificate or any later date specified under the saidsubsection (3) or (3B) is before that date, or
(B) in any other case the scheme will satisfy the funding standard at the effective date of the next actuarial funding certificate or, where applicable, any later date specified under subsection (3) or (3B) of section 49, and the funding standard reserve at the effective date of the next funding standard reserve certificate, or where applicable, any later date specified under the said subsection (3B).]
[(4) The Minister may make regulations requiring the trustees of a relevant scheme to comply with any applicable guidance issued by any person (including the Board or the Minister) and specified in the regulations setting out-
(a) the form by which the trustees of a relevant scheme may apply to the Board for a direction under this section, and
(b) the requirements to be met by the trustees in relation to any such application, including a requirement that the trustees give notice to the members of the scheme or other persons receiving benefits under the scheme of any proposal to apply for a direction under this section and to give those members and other persons an opportunity to make representations to the trustees in relation to the proposal before the application for a direction is made.]
[(5) The Minister may make regulations for the purposes of this section, and, without prejudice to the generality of the foregoing, the regulations may provide that where the Board proposes to make a direction under subsection (1)[, (1A) or (1B)] other than on application by the trustees-
(a) the Board may by notice in writing require a specified person to furnish the Board with such information as may be prescribed within the period specified in the notice,
[(b) the trustees of the scheme and the employer to whom the scheme relates shall make such notifications and provide such information to such persons as may be prescribed, when and in such manner as the Pensions Authority may specify,]
(c) such persons as may be prescribed shall be afforded an opportunity to make submissions tothe Board, in respect of the proposed direction, [within such period as may be prescribed,] and
(d) the Board shall, prior to making a direction, consider any such submissions.
(6) An appeal to the High Court on a point of law from a direction of the Board under subsection (1)[, (1A) or (1B)], made other than on application by the trustees, may be brought by such persons as may be prescribed not later than 21 days [after the date of the notification under subsection (2B).]
(7) A direction of the Board under subsection (1)[, (1A) or (1B)]), made other than on application by the trustees, shall not take effect-
[(a) during the period of 21 days after the date of the notification made under subsection (2B),]
(b) if an appeal against the direction is brought during the period referred to in paragraph (a), before the date of the final determination of the appeal or any appeal from such determination or the withdrawal of either such appeal.
(8) Where the Board makes a direction under subsection (1)[, (1A) or (1B)], other than on application by the trustees, the periods specified in subsection (3) shall be deemed to run from the date on which the direction takes effect.]
[(9) In this section, ‘annual amount’ has the meaning assigned to it by section 48(8).]
50A.
Power to amend relevant scheme.
50A. –
(1) Subject to this section and section 50, the trustees of a scheme [(other than a regulatory own funds scheme)] may-
(a) for the purpose of ensuring that the winding up of the scheme will not be required by reason only of the scheme not having sufficient resources to enable the liabilities of the scheme to be discharged,
(b) after compliance with regulations (if any) under this section, and
(c) with the consent of the Board,
make such amendments to the scheme as they consider appropriate.
(2) The Minister may make regulations requiring the trustees of a relevant scheme to give notice to the members of the scheme of any proposal to amend the scheme pursuant to this section and to give those members an opportunity to make representations to the trustees of the scheme in relation to the proposal before any amendment to the scheme is made.
(3) Regulations under this section may contain such incidental, supplementary and consequential provisions as appear to the Minister to be necessary for the purposes of the regulations.
(4) Notwithstanding the rules of a relevant scheme, the consent of the members of the scheme to the amendment of the scheme pursuant to this section shall not be required.
(5) This section shall not operate to limit any power to amend the rules of a relevant scheme, that apart from this section, vests in the trustees of the scheme.]
50C.
(1) If the Board is of the opinion that a person has not complied with or is not complying with-
(a) a direction under subsection (1), (1A) or (1B) of section 50,
(b) a direction under section 50B, or
(c) a requirement under subsection (2B) or (3) of section 50,
the Board may apply to the High Court for an order compelling the person to comply with the direction or requirement concerned.
(2) Where, following an application by the Board under subsection (1), the High Court is satisfied that it is appropriate to do so, the Court may make an order compelling the person to comply with the direction or requirement concerned.
(3) Where the High Court makes an order under subsection (2), it may, for the purpose of giving full effect to the order, include such conditions in the order and make such ancillary or other orders as it deems fit.
52.
Exclusion from and modification of Part IV and Third Schedule
52.-(1) Where the Minister considers that some or all of the benefits under specified schemes or categories of schemes are, or may be, paid in whole or in part out of moneys provided from the Central Fund or moneys provided by the Oireachtas, he may byregulations made with the consent of the Minister for Finance exclude those schemes or categories of schemes from the application of this Part and the Third Schedule.
(2) Where the Minister considers that-
(a) it would be unreasonable, having regard to their nature, character and resources and the methods by which benefitspayable under them are funded, and
(b) it would be contrary to the interests of their members,
to require specified schemes or categories of schemes to comply fully with specified provisions of this Part and the Third Schedule, he may by regulations made with the consent of the Minister for Finance provide that those provisions shall apply in relation to those schemes or categories of schemes with specified modifications, being modifications that, in the opinion of the Minister, are reasonable and do not materially alter those provisions.
53.
Conflict between Part IV and schemes
53.-(1) The provisions of this Part and of any regulations made. thereunder shall override any rule of a scheme to the extent that that rule conflicts with those provisions.
(2) Any question as to-
(a) whether any provision of this Part (including any such provision as modified by regulations), any regulation madethereunder or the Third Schedule conflicts with any rule of a scheme, or
(b) whether a scheme is a defined benefit scheme or a defined contribution scheme for the purposes of this Part,
shall be determined by the Board on application to it in writing in that behalf by a person who, in relation to the scheme, corresponds to a person mentioned in section 38 (3) in relation to a scheme mentioned therein.
(3) An appeal to the High Court on a point of law from a determination of the Board, under subsection (2) in relation to a scheme, may be brought by the person who made, or a person who was entitled to make, the application concerned under subsection (2) [not later than six months after the date of the determination by the Board].
Certification of Certain Policies or Contracts of Assurance
53A. In this Part ‘undertaking’ means an undertaking within the meaning of the Insurance Act 1989.
53B.-
(1) The Board may certify a form of policy or contract of assurance, submitted to the Board by anundertaking in that behalf, in respect of schemes that are approved by the Revenue Commissioners under Chapter 1 of Part 30 of the Taxes Consolidation Act 1997, where the Board is satisfied that the form of policy or contract of assurance is designed-
(a) to provide the sums payable to the scheme in respect of some or all of the benefits in relation to a person who, under the scheme-
(i) is receiving benefits, or
(ii) has reached normal pensionable age,
or
(b) to discharge the liability of the scheme for some or all of the benefits payable to or in respect of a person who under a scheme-
(i) is receiving benefits, or
(ii) has reached normal pensionable age.
(2) For the purpose of obtaining certification under subsection (1) an undertaking shall furnish to the Board such information in such form as may be prescribed for the purposes of this section.
(3) A policy or contract of assurance referred to in subsection (1) may include a policy or contract of assurance which is referenced by-
(a) securities issued under section 54(1) of the Finance Act 1970 and known as bonds, or
(b) securities issued under the laws of a Member State (other than the State) that correspond to securities referred to in paragraph (a).
(4) Certification by the Board under subsection (1) shall be subject to such terms and conditions asthe Board may consider appropriate.
53C. Register of policies or contracts of assurance certified under Section 53B.
53C. The Board shall-
(a) keep a register in which there shall be entered such particulars as may be prescribed, for the purposes of this Part, in relation to policies or contracts of assurance that have been certified under section 53B and such register shall be open for inspection by any member of the public at all reasonable times on payment of such fee as the Board may determine, and
(b) maintain, in accordance with regulations, an up to date database of information relating to particulars referred to in paragraph (a).
53E.
Interpretation.
53E. In this Part, except where the context otherwise requires-
‘biometric risks’ means risks linked to death, disability and longevity;
‘regulatory own funds certification date’ shall be construed in accordance with subsection (2) of section 53J;
‘regulatory own funds notification date’ shall be construed in accordance with subsection (2) of section 53K;
‘regulatory own funds proposal’ has the meaning assigned to it by section 53L;
‘regulatory own funds requirement’ means the requirement to hold additional resources undersection 53H, and references in this Part to
‘satisfying’ the regulatory own funds requirement mean that the regulatory own funds scheme or the regulatory own funds trust RAC holds sufficient additional resources to at least satisfy that requirement;
‘regulatory own funds scheme’ means a relevant scheme where the relevant scheme and not any sponsoring undertaking to whom the relevant scheme relates-
(a) underwrites any liability to cover against biometric risks,
(b) guarantees a given investment performance, or
(c) guarantees a given level of benefits;
‘regulatory own funds trust RAC’ means a trust RAC which-
(a) underwrites any liability to cover against biometric risks,
(b) guarantees a given investment performance, or
(c) guarantees a given level of benefits;
‘regulatory own funds trust RAC technical provisions certificate’ means a certificate prepared by an actuary certifying if, in the opinion of the actuary, the resources of the regulatory own funds trust RAC at the effective date of the certificate would have been sufficient to satisfy the technical provisions requirement, if the regulatory own funds trust RAC had been wound up on that date;
‘technical provisions’ means-
(a) in relation to a regulatory own funds scheme on any date the regulatory own funds scheme’sfunding standard liabilities,
(b) in relation to a regulatory own funds trust RAC on any date, were the regulatory own funds trust RAC to be wound up on that date, the sum of the value of the liabilities of theregulatory own funds trust RAC to provide benefits in accordance with the rules of the trust RAC and the estimated expenses of administering the winding up of the trust RAC calculated in accordance with any applicable guidance specified in regulations;
‘technical provisions certification date’ means the effective date as construed in accordance withsection 53G;
‘technical provisions requirement’ means in relation to a regulatory own funds trust RAC, the requirement to hold resources to provide for the technical provisions, and references in this Part to ‘satisfying’ the technical provisions requirement mean that the regulatory own funds trust RACholds sufficient resources to at least satisfy that requirement;
‘undertaking’ has the meaning assigned to it by the Insurance Act 1989.
53F.
Application.
53F. This Part applies to a regulatory own funds scheme and a regulatory own funds trust RAC other than-
(a) a scheme which the Minister has by regulations made under section 52 excluded from the application of Part IV,
(b) a scheme which is a statutory scheme to which section 776 of the Taxes Consolidation Act 1997 applies and where benefits are paid in whole or in part out of moneys provided from the Central Fund or moneys provided by the Oireachtas and the rules of which provide that an appeal may be made to a Minister of the Government,
(c) a scheme or trust RAC the winding up of which has commenced,
(d) a one-member arrangement,
(e) a scheme or trust RAC the only benefits under which are payable in respect of the death of a member where those benefits are fully secured under a policy or policies of assurance with one or more than one undertaking.
53G.
Regulatory own funds trust RAC technical provisions certificate.
53G.-
(1) Subject to section 53M, the trustees of a regulatory own funds trust RAC shall cause the technical provisions and the technical provisions requirement for a regulatory own funds trust RAC to be calculated by an actuary and a regulatory own funds trust RAC technical provisions certificate to be prepared and submitted to the Board and the first such certificate shall have an effective date of:
(a) in the case of a trust RAC which on 23 September 2010 was a regulatory own funds trust RAC, not later than 6 months after the date on which Chapter 2 of Part 4 of the Social Welfare and Pensions Act 2011 comes into operation;
(b) in the case of a trust RAC which commences after 23 September 2010 and which from the trust RAC’s commencement is a regulatory own funds trust RAC-
(i) not later than 4 weeks after the date of commencement of the trust RAC, or
(ii) not later than 4 weeks after the date on which Chapter 2 of Part 4 of the Social Welfare and Pensions Act 2011 comes into operation,
whichever is the later,
(c) in the case of a trust RAC which at its commencement was not a regulatory own funds trust RAC but becomes a regulatory own funds trust RAC after 23 September 2010-
(i) not later than 4 weeks after the date on which the trust RAC becomes a regulatory own funds trust RAC, or
(ii) not later than 4 weeks after the date on which Chapter 2 of Part 4 of the Social Welfare and Pensions Act 2011 comes into operation,
whichever is the later.
(2) While a trust RAC remains a regulatory own funds trust RAC each subsequent regulatory own funds trust RAC technical provisions certificate submitted after the appropriate effective date referred to in subsection (1) shall have an effective date of not later than one year after the effective date of the immediately preceding certificate.
(3) Subject to section 53M, a regulatory own funds trust RAC technical provisions certificate required under subsection (1) or (2) shall be submitted to the Board by the trustees of the regulatory own funds trust RAC within 3 months of the effective date of the certificate.
(4) The regulatory own funds trust RAC technical provisions certificate shall be in such form and contain such information and particulars as the Minister may from time to time prescribe.
(5) The Minister may by regulations require an actuary when calculating the technical provisions of aregulatory own funds trust RAC to comply with the applicable professional guidance issued by the Society of Actuaries in Ireland and specified in the regulations or with any other guidance prescribed by the Minister.
53H.
Requirement to hold additional resources.
53H.
(1) A regulatory own funds scheme and a regulatory own funds trust RAC shall hold on a permanent basis-
(a) sufficient resources to satisfy the technical provisions of the regulatory own funds scheme or the technical provisions requirement of the regulatory own funds trust RAC, as appropriate, and
(b) additional resources over and above the resources referred to in paragraph (a) to serve as a safety capital to absorb any discrepancies between the anticipated and actual expenses and profits of the regulatory own funds scheme or the regulatory own funds trust RAC.
(2) The additional resources required under paragraph (b) of subsection (1) shall be the amount of theregulatory own funds requirement referred to in section 53I, free of all foreseeable liabilities.
(3) The trustees of a regulatory own funds scheme or regulatory own funds trust RAC shall take all reasonable steps to ensure that the regulatory own funds scheme or regulatory own funds trust RAC complies with the requirements of this section.
53I.
Amount of regulatory own funds requirement.
53I.-
(1) The amount of the regulatory own funds requirement is the aggregate of-
(a) subject to subsection (3), a percentage which shall be prescribed and which shall be not less than 4 per cent of the technical provisions of the regulatory own funds scheme or theregulatory own funds trust RAC; and
(b) a percentage which shall be prescribed and which shall be not less than 0.3 per cent of the capital at risk for the members of, or other persons entitled to benefits under, the regulatory own funds scheme or regulatory own funds trust RAC in respect of which the capital at risk is not a negative figure and where the capital at risk is as calculated in accordance with subsection (2).
(2) For the purposes of paragraph (b) of subsection (1) ‘capital at risk’ means-
(a) to the extent that the benefit payable on death or disability of a member or other person entitled to benefits under the regulatory own funds scheme or regulatory own funds trust RAC comprises a lump sum benefit, the amount of that lump sum benefit on death or disability, and
(b) to the extent that the benefit payable on death or disability of a member or other person entitled to benefits under the regulatory own funds scheme or regulatory own funds trust RAC comprises the purchase of an annuity, the payment of a sum by instalments or any other kind of periodical payments, the current value of that benefit calculated in a manner which is consistent with the determination of the regulatory own funds scheme’s or regulatory own funds trust RAC’s technical provisions,
less the regulatory own funds scheme’s or regulatory own funds trust RAC’s technical provisions in relation to those persons.
(3) The Minister may prescribe that the percentage for the purposes of paragraph (a) of subsection (1) shall be increased to such greater percentage not exceeding 50 per cent, as he or she may decide of the technical provisions of the regulatory own funds scheme or the regulatory own funds trust RAC if and to the extent that the resources of the regulatory own funds scheme or the regulatory own funds trust RAC are invested in assets other than-
(a) securities issued under section 54(1) of the Finance Act 1970 and known as bonds,
(b) securities issued under the laws of a Member State (other than the State) that correspond to securities referred to in paragraph (a), or
(c) cash deposits with one or more credit institutions, and
the proportion of the technical provisions of the regulatory own funds scheme or the regulatory own funds trust RAC to which such increased percentage shall be applied shall be calculated in accordance with the formula-
A x B/C
where-
A is the amount of the technical provisions of the regulatory own funds scheme or theregulatory own funds trust RAC,
B is the amount of the resources of the regulatory own funds scheme or the regulatory own funds trust RAC invested in assets other than those referred to in paragraph (a), (b) or (c), and
C is the amount of the resources of the regulatory own funds scheme or the regulatory own funds trust RAC.
(4) In respect of any calculation to be made for the purposes of this Part, the resources of a regulatory own funds scheme or a regulatory own funds trust RAC shall exclude investments in excess of such a percentage as may be prescribed by the Minister, within such a class or description of investments as may be prescribed by the Minister.
53K.
Notification of regulatory own funds status.
53K.-
(1) Subject to section 53N, the trustees of a scheme or trust RAC which becomes a regulatory own funds scheme or a regulatory own funds trust RAC shall so notify the Board on or before theregulatory own funds notification date.
(2) Subject to section 53N, the regulatory own funds notification date shall be:
(a) in the case of a relevant scheme or trust RAC which on 23 September 2010 was a regulatory own funds scheme or a regulatory own funds trust RAC, not later than 6 months after the date on which Chapter 2 of Part 4 of the Social Welfare and Pensions Act 2011 comes into operation;
(b) in the case of a relevant scheme or trust RAC which commences after 23 September 2010 and which from the relevant scheme’s or trust RAC’s commencement is a regulatory own funds scheme or regulatory own funds trust RAC-
(i) not later than 4 weeks after the date of commencement of the relevant scheme or trust RAC, or
(ii) not later than 4 weeks after the date on which Chapter 2 of Part 4 of the Social Welfare and Pensions Act 2011 comes into operation,
whichever is the later;
(c) in the case of a relevant scheme or trust RAC which at its commencement was not aregulatory own funds scheme or regulatory own funds trust RAC but becomes a regulatory own funds scheme or regulatory own funds trust RAC after 23 September 2010-
(i) not later than 4 weeks after the date on which the scheme or trust RAC becomes aregulatory own funds scheme or a regulatory own funds trust RAC, or
(ii) not later than 4 weeks after the date on which Chapter 2 of Part 4 of the Social Welfare and Pensions Act 2011 comes into operation,
whichever is the later.
53L.
Failure to satisfy funding standard, technical provisions requirement or regulatory own funds requirement.
53L.-
(1) Where-
(a)
(i) in accordance with section 43, the trustees of a regulatory own funds scheme submit anactuarial funding certificate which certifies that at the effective date of the certificate the regulatory own funds scheme does not satisfy the funding standard, or
(ii) in accordance with section 53G, the trustees of a regulatory own funds trust RACsubmit a regulatory own funds trust RAC technical provisions certificate which certifies that at the effective date of the certificate the regulatory own funds trust RAC does not satisfy the technical provisions requirement,
or
(b) in accordance with section 53J or 53M, the trustees of a regulatory own funds scheme orregulatory own funds trust RAC submit a regulatory own funds certificate which certifies that at the regulatory own funds certification date the regulatory own funds scheme or regulatory own funds trust RAC does not satisfy the regulatory own funds requirement,
they shall submit to the Board a proposal (in this Part referred to as a ‘regulatory own funds proposal’) in accordance with this section.
(2) A regulatory own funds proposal shall contain a proposal designed to ensure the regulatory own funds scheme or regulatory own funds trust RAC satisfies-
(a)
(i) where paragraph (a)(i) of subsection (1) applies, the funding standard within 2 years of the effective date of the actuarial funding certificate referred to in that paragraph, or
(ii) where paragraph (a)(ii) of subsection (1) applies, the technical provisions requirementwithin 2 years of the effective date of the regulatory own funds trust RAC technical provisions certificate referred to in that paragraph,
and
(b) where paragraph (b) of subsection (1) applies, the regulatory own funds requirement within 2 years of the regulatory own funds certification date applicable to the certificate referred to in that paragraph.
(3) A regulatory own funds proposal shall be submitted to the Board by the trustees within 4 months of the regulatory own funds certification date applicable to the certificate referred to in paragraph (b) of subsection (1).
(4) If the Board is satisfied that a regulatory own funds proposal submitted in accordance with subsection (3) is likely to enable the regulatory own funds scheme or regulatory own funds trust RAC to satisfy:
(a)
(i) where paragraph (a)(i) of subsection (1) applies, the funding standard, or
(ii) where paragraph (a)(ii) of subsection (1) applies, the technical provisions requirement,
and
(b) where paragraph (b) of subsection (1) applies, the regulatory own funds requirement,
within 2 years of the regulatory own funds certification date applicable to the certificate referred to in paragraph (b) of subsection (1), it shall approve the regulatory own funds proposal or, if it is not so satisfied, it shall reject the regulatory own funds proposal.
(5) Where the trustees of a regulatory own funds scheme or a regulatory own funds trust RAC-
(a) do not submit a regulatory own funds certificate within 3 months of the regulatory own funds certification date,
(b) do not submit a regulatory own funds proposal under subsection (1),
(c) do not submit a regulatory own funds proposal within the period referred to in subsection (3),
(d) submit a regulatory own funds proposal which is rejected by the Board under subsection (4), or
(e) submit a regulatory own funds proposal which is approved by the Board but the regulatory own funds scheme or the regulatory own funds trust RAC does not, within 2 years of theregulatory own funds certification date applicable to the certificate referred to in subsection (1), satisfy the funding standard or the technical provisions requirement (as applicable) and the regulatory own funds requirement,
the Board may by notice in writing direct the trustees in accordance with subsection (6).
(6) Where subsection (5) applies, and notwithstanding anything contained in the rules of theregulatory own funds scheme or the regulatory own funds trust RAC the Board may direct thetrustees-
(a) to wind-up the regulatory own funds scheme or the regulatory own funds trust RAC with effect from such date and subject to such conditions as the Board may consider appropriate, and
(b) to take, by such date as the Board may specify, such one or more of the measures specified in subsection (7) as the Board considers appropriate in the circumstances, either indefinitely or for a specified period.
(7) The following measures are specified for the purposes of paragraph (b) of subsection (6):
(a) to cease or modify future accrual of benefits,
(b) to cease to accept further contributions from or in respect of members,
(c) to refrain from making investments of a specified class,
(d) to-
(i) maintain funds, or
(ii) effect insurance of a value,
equal to the whole or a specified portion of the regulatory own funds scheme’s liabilities.
(8) Where the trustees fail to take the measure or measures specified by the Board under subsection (6)(b) by such date as the Board has specified, the Board may direct the trustees to wind-up theregulatory own funds scheme or the regulatory own funds trust RAC with effect from such date and subject to such conditions as the Board may consider appropriate.
(9) An appeal to the High Court on a point of law from a direction of the Board under subsection (6) or (8) may be brought by the trustees of the regulatory own funds scheme or the regulatory own funds trust RAC within 21 days of the date of the direction of the Board.
53M. Supervisory regulatory own funds certificate.
53M. The Board, whenever it considers appropriate, may by notice in writing to the trustees of aregulatory own funds scheme or a regulatory own funds trust RAC, require the trustees to submit to the Board within the period specified in the notice an actuarial funding certificate or a regulatory own funds trust RAC technical provisions certificate, and a regulatory own funds certificate having-
(a) in the case of an actuarial funding certificate or a regulatory own funds trust RAC technical provisions certificate such an effective date as is specified in the notice, and
(b) in the case of a regulatory own funds certificate, such a regulatory own funds certification date as is specified in the notice.
53N. De facto regulatory own funds scheme or regulatory own funds trust RAC.
53N.-
(1) If at any time it appears to the Board that a scheme or trust RAC is a scheme or trust RAC to which this Part applies but that the trustees of the scheme or the trust RAC have not made the notification required to be made under and in accordance with section 53K, the Board may by notice in writing to the trustees of the scheme or the trust RAC determine that the scheme or trust RAC is a regulatory own funds scheme or a regulatory own funds trust RAC with effect from the date specified in the notice.
(2) Where the Board determines that a scheme or a trust RAC is a regulatory own funds scheme or aregulatory own funds trust RAC and gives written notice of such determination to the trustees of the regulatory own funds scheme or the regulatory own funds trust RAC pursuant to subsection (1), the regulatory own funds notification date for that scheme or trust RAC shall be the date falling 4 weeks after the date specified in the notice referred to in subsection (1).
(3) An appeal to the High Court on a point of law from a determination of the Board under subsection (1) may be brought by the trustees of the regulatory own funds scheme or the regulatory own funds trust RAC within 21 days after the date of determination of the Board.
S.I. No. 630/2005 –
European Communities (Protection of Employees (Employers’ Insolvency)) Regulations 2005
REGULATIONS
entitled
European Communities (Protection of Employees (Employers’ Insolvency)) Regulations 2005
I, Micheál Martin, Minister for Enterprise, Trade and Employment, in exercise of the powers conferred on me by section 3 of the European Communities Act 1972 (No. 27 of 1972), for the purpose of giving effect to Directive 2002/74/EC of the European Parliament and of the Council of 23 September 20021 , hereby make the following regulations:
Citation, Commencement and Interpretation.
1. (1) These Regulations may be cited as the European Communities (Protection of Employees (Employers’ Insolvency)) Regulations 2005.
(2) These Regulations come into operation on 8 October, 2005.
2. In these Regulations “Act of 1984” means the Protection of Employees (Employers’ Insolvency) Act 1984 (No. 21 of 1984).
Amendment of Protection of Employees (Employers’ Insolvency) Act 1984.
3. Section 1 of the Act of 1984 is amended –
(a) in subsection (1)-
(i) by inserting after the definition of “the Act of 1967” the following:
“ ‘the Act of 1969’ means the Industrial Relations Act 1969 ;”,
(ii) by inserting after the definition of “the Act of 1981” the following:
“ ‘the Act of 1990’ means the Industrial Relations Act 1990 ;
‘the Act of 1991’ means the Payment of Wages Act 1991 ;
‘the Act of 1994’ means the Terms of Employment (Information) Act 1994 ;
‘the Act of 1996’ means the Protection of Young Persons (Employment) Act 1996 ;
‘the Act of 1997’ means the Organisation of Working Time Act 1997 ;
‘the Act of 1998’ means the Protections for Persons Reporting Child Abuse Act 1998;
‘the Act of 2001’ means the Protection of Employees (Part-Time Work) Act 2001 ;
‘the Act of 2002’ means the Competition Act 2002 ;
‘the Act of 2003’ means the Protection of Employees (Fixed-Time Work) Act 2003;
‘the Act of 2004’ means the Industrial Relations (Miscellaneous Provisions) Act 2004 ;”,
(iii) by inserting after the definition of “company” the following:
“ ‘competent authority’ means the authority referred to in Article 2(1) of Council Directive 80/987/EEC of 20 October 19802 as amended by Article 1(2) of Directive 2002/74/EC of the European Parliament and of the Council of 23 September 20021 ;”,
(iv) by inserting after the definition of “holiday pay” the following:
“ ‘Member State’ means a Member State of the European Union”,
and
(v) in the definition of “relevant officer”, by deleting “or” after “a receiver or manager,” and by inserting after “by an employer” the following:
“, or, where the employer is an undertaking which is insolvent under the laws, regulations and administrative procedures of another Member State in accordance with Article 2(1) of Council Directive 80/987/EEC of 20 October 1980 as amended by Article 1(2) of Directive 2002/74/EC of the European Parliament and of the Council of 23 September 2002 and the employees concerned are employed or habitually employed in the State, the person appointed by the appropriate competent authority to perform the functions of a relevant officer”,
and
(b) in subsection (3) –
(i) in paragraph (c), by substituting for “comprised in or subject to the charge, or” the following: “comprised in or subject to the charge; or”,
(ii) in paragraph (d), by substituting for “in relation to him.” the following: “in relation to him; or”, and
(iii) by inserting after paragraph (d) the following:
“(e) the employer is an undertaking which is insolvent under the laws, regulations and administrative procedures of another Member State in accordance with Article 2(1 of Council Directive 80/987/EEC of 20 October 1980 as amended by Article 1(2) of Directive 2002/74/EC of the European Parliament and of the Council of 23 September 2002 and the employees concerned are employed or habitually employed in the State.”.
4. The Act of 1984 is amended by substituting the following for section 3:
“Application of Act.
3.__ Subject to section 11 of this Act, this Act applies to employees employed in employment which is insurable for all benefits under the Social Welfare (Consolidation) Act 1993 or would be so insurable but for the fact that-
(a) the employment concerned is an excepted employment by virtue of paragraph 2, 4 or 5 of Part II of the First Schedule to the Social Welfare (Consolidation) Act 1993 , or
(b) the employees concerned have attained the age of 66 years.”.
5. Section 4(1) of the Act of 1984 is amended –
(a) in paragraph (e), by deleting “and”,
(b) in paragraph (f), by substituting for “having become insolvent.” the following: “having become insolvent, and”, and
(c) by inserting after subsection (f) the following:
“(g) where the employer is an undertaking which is insolvent under the laws, regulations and administrative procedures of another Member State in accordance with Article 2(1) of Council Directive 80/987/EEC of 20 October 1980 as amended by Article 1(2) of Directive 2002/74/EC of the European Parliament and of the Council of 23 September 2002 and the employees concerned are employed or habitually employed in the State, the date on which the insolvency was established under the laws, regulations and administrative procedures of that other Member State.”.
6. Section 6 of the Act of 1984 is amended –
(a) in subsection 2(a) –
(i) in subparagraph (xiii) (inserted by section 47 of the National Minimum Wage Act 2000 ) by substituting for “of the relevant period.” the following: “of the relevant period,”,
and
(ii) by inserting after the said subparagraph (xiii) the following subparagraphs:
“(xiv) any amount which an employer is required to pay by virtue of a decision by way of order by a rights commissioner under section 6(2) of the Act of 1991 or a determination by the Employment Appeals Tribunal under section 7(1) of the Act of 1991 and made, in any case, not earlier than the commencement of the relevant period, provided that a claim in respect of the amount to which the decision or determination refers has not been made under another provision of this section,
(xv) any amount which an employer is required to pay by virtue of a recommendation by way of order by a rights commissioner under section 7(2)(d) of the Act of 1994 or a determination by the Employment Appeals Tribunal under section 8(1) or section 8(6)(a) of the Act of 1994 and made, in any case not earlier than the commencement of the relevant period,
(xvi) any amount which an employer is required to pay by virtue of a recommendation by a rights commissioner under section 18(2) of the Act of 1996 or a determination by the Employment Appeals Tribunal under subsection (1) or (6) of section 19 of the Act of 1996 and made, in any case, not earlier than the commencement of the relevant period,
(xvii) any amount which an employer is required to pay by virtue of a decision by a rights commissioner under section 27(2) of the Act of 1997 or a determination by the Labour Court under subsection (1) or (8) of section 28 of the Act of 1997 and made in any case, not earlier than the commencement of the relevant period,
(xviii) any amount which an employer is required to pay by virtue of a decision by a rights commissioner under section 4(4) of the Act of 1998 or a determination by the Employment Appeals Tribunal under subsection (1) or (6)(a) of section 8 of the Act of 1994 as amended and extended by section 4(6)(b of the Act of 1998 and made, in any case, not earlier than the commencement of the relevant period,
(xix) any amount which an employer is required to pay by virtue of a decision by a rights commissioner under section 16(1) of the Act of 2001 or a determination by the Labour Court under subsection (1) or (8) of section 17 of the Act of 2001 and made in any case, not earlier than the commencement of the relevant period,
(xx) any amount which an employer is required to pay by virtue of a decision by a rights commissioner under section 14(1)(b) of the Act of 2003 or a determination by the Labour Court under subsection (1)(b) or (8) of section 15 of the Act of 2003 and made, in any case, not earlier than the commencement of the relevant period,
(xxi) any amount which an employer is required to pay by virtue of a decision by a rights commissioner under Regulation 6(1) of the European Communities (Protection of Employment Regulations 2000 ( S.I. No. 488 of 2000 ) or a determination by the Employment Appeals Tribunal under subsection (1) or (6)(a) of section 8 of the Act of 1994 as amended and extended by the same Regulations and made, in any case, not earlier than the commencement of the relevant period,
(xxii) any amount which an employer is required to pay by virtue of a decision by a rights commissioner under Regulation 10(4)(b) of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 ( S.I. No. 131 of 2003 ) or a determination by the Employment Appeals Tribunal under regulation 11(1)(b) of the same regulations and made, in any case, not earlier than the commencement of the relevant period,
(xxiii) any amount which an employer is required to pay by virtue of a decision by a rights commissioner under paragraph 4 of the Third Schedule to the Act of 2002 or a determination by the Employment Appeals Tribunal under subsection (1) or (6)(a) of section 8 of the Act of 1994 as amended and extended by paragraph 6(b) of the Third Schedule to the Act of 2002 and made, in any case, not earlier than the commencement of the relevant period,
(xxiv) any amount which an employer is required to pay to an employee in respect of remuneration by virtue of a registered employment agreement within the meaning of Part III of the Industrial Relations Act 1946 , being an amount by reference to which an order of the Labour Court has been made under section 32(1)(b) of that Act or section 10(1)(b) of the Act of 1969, or proceedings have been instituted under section 54(1) of the Act of 1990, and
(xxv) any amount which an employer is required to pay to an employee in respect of remuneration by virtue of a decision of a rights commissioner under subsection (4)(b) of section 9 of the Act of 2004 or a determination by the Labour Court under subsection (1)(b) of section 10 of the Act of 2004.”,
(b) in subsection (2)(b), by substituting “, (xi), (xiv), (xv), (xvi), (xvii) (xviii), (xix), (xx), (xxi), (xxii), (xxiii), (xxiv) or (xxv)” for “or (xi)”,
(c) by inserting after subsection (2)(b) the following paragraph:
“(c) A payment shall not be made under this section in respect of a debt referred to in subparagraph (xiv), (xv), (xvi) (xvii), (xviii), (xix), (xx), (xxi), (xxii), (xxiii) or (xxv) of paragraph (a) of this subsection until the period for making an appeal against-
(i) the decision or recommendation, as appropriate, of the rights commissioner,
(ii) the determination of the Employment Appeals Tribunal or the Labour Court, as appropriate,
has expired, or any such appeal made has been withdrawn or determined.”,
and
(d) in the definition of “the relevant date” in subsection (9) (as amended by section 47(c) of the National Minimum Wage Act 2000 ) by substituting “(x), (xi), (xiii), (xiv), (xv), (xvi), (xvii) (xviii), (xix), (xx), (xxi), (xxii), (xxiii), (xxiv) or (xxv)” for “(x) (xi) or (xiii)”.
7. Section 7(3)(b) of the Act of 1984 is amended by inserting “(or, where the employer is an undertaking which is insolvent under the laws, regulations and administrative procedures of another Member State in accordance with Article 2(1) of Council Directive 80/987/EEC of 20 October 1980 as amended by Article 1(2) of Directive 2002/74/EC of the European Parliament and of the Council of 23 September 2002 and the employees concerned are employed or habitually employed in the State, an actuary or person performing a similar task)” after “actuary”.
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GIVEN under my Official Seal,
4th October, 2005.
_______________
MICHEL MARTIN
Minister for Enterprise, Trade & Employment
EXPLANATORY NOTE
(This note is not part of the Instrument and does not purport to be a legal interpretation.)
These Regulations transpose into Irish law Directive 2002/74/EU of 23 September 2002 amending Council Directive 80/987/EEC concerning the protection of employees in the event of insolvency of their employer. The Regulations amend the Protection of Employees (Employers’ Insolvency) Act 1984 by including a provision to cover employees who are employed in Ireland by an employer who has become insolvent under the laws, regulations and administrative procedures of another Member State. The Regulations also extend the coverage of the Act to include additional entitlements that may be owed to employees by an insolvent employer.
Copies of these Regulations may be purchased from the Government Publications Sales Office, Sun Alliance House, Molesworth Street, Dublin 2, or through any bookseller.
1 OJ No. L270, 8.10.2002, p. 10
2 OJ No. L283, 28.10.1980, p. 23
1 OJ No. L270, 8.10.2002, p. 10