The Occupational Pension Schemes (Investment) Regulations 2005

Citation, commencement and interpretation

1.—(1) These Regulations may be cited as the Occupational Pension Schemes (Investment) Regulations 2005 and shall come into force on 30th December 2005.

(2) In these Regulations—

“the 1995 Act” means the Pensions Act 1995;

“the 2004 Act” means the Pensions Act 2004;

“the FSM Act” means the Financial Services and Markets Act 2000(1);

“collective investment scheme” has the same meaning as in Part 17 of the FSM Act, but includes arrangements of the type described in paragraphs 4 and 9 of the Schedule to the Financial Services and Markets Act 2000 (Collective Investment Schemes) Order 2001(2) (arrangements not amounting to a collective investment scheme);

“employer-related loan” has for the purposes of regulations 12, 14 and 15 the meaning given in regulation 12(4);

“insurance policy” means a contract of a kind referred to in article 2 of the Life Directive, but excluding a contract of a kind referred to in article 2(c) and (d) of that Directive;

“the Life Directive” means Directive 2002/83EC of the European Parliament and of the Council of 5th November 2002 concerning life assurance(3);

“qualifying insurance policy” means an insurance policy issued by an insurer which is—

(a)

a person who has permission under Part 4 of the FSM Act to effect or carry out contracts of long-term insurance; or

(b)

an undertaking established in an EEA State (as defined in paragraph 8 of Schedule 3 to the FSM Act) other than the United Kingdom, which is authorised by the competent authorities of that State to carry on the business of direct insurance for the class of assurance as listed in Annex I to the Life Directive in which the insurance policy falls;

“recognised stock exchange” has the same meaning as in section 841 of the Taxes Act;

“scheme undertaking cross-border activities” means a scheme in relation to which the trustees or managers are—

(a)

authorised under section 288 of the 2004 Act (general authorisation to accept contributions from European employers); or

(b)

approved under section 289 of the 2004 Act in relation to a European employer;

“scheme” (except in the expression “collective investment scheme”) means an occupational pension scheme;

“small scheme” means a scheme with fewer than 12 members, where—

(a)

all the members are trustees of the scheme and either—

(i)

the provisions of the scheme provide that all decisions which fall to be made by the trustees are made by unanimous agreement by the trustees who are members of the scheme, or

(ii)

the scheme has a trustee who is independent in relation to the scheme for the purposes of section 23 of the 1995 Act(4) (power to appoint independent trustees), and is registered in the register maintained by the Authority in accordance with regulations made under subsection (4) of that section; or

(b)

all the members are directors of a company which is the sole trustee of the scheme, and either—

(i)

the provisions of the scheme provide that any decisions made by the company in its capacity as trustee are made by the unanimous agreement of all the directors who are members of the scheme, or

(ii)

one of the directors of the company is independent in relation to the scheme for the purposes of section 23 of the 1995 Act, and is registered in the register maintained by the Authority in accordance with regulations made under subsection (4) of that section;

“specified qualifying insurance policy” means a qualifying insurance policy which is a contract falling within paragraph III of Part II of Schedule 1 to the Financial Services and Markets Act 2000 (Regulated Activities) Order 2001(5);

“Taxes Act” means the Income and Corporation Taxes Act 1988(6).

(3) Regulations 12(4)(b), 13(3) and 15(1) must be read with—

(a) section 22 of the FSM Act (classes of activity and categories of investment);

(b) any relevant order under that section; and

(c) Schedule 2 to that Act (regulated activities).

(4) Subject to paragraph (5), in these Regulations, and for the purposes of section 35 (investment principles) and section 40 (restriction on employer-related investments) of the 1995 Act, “employer”, in relation to a scheme which has no active members, includes every person who was the employer of persons in the description of employment to which the scheme relates immediately before the time at which the scheme ceased to have any active members in relation to it.

(5) In these Regulations, “employer”, in relation to a multi-employer scheme, or a section of a multi-employer scheme, includes—

(a) in the case of a scheme which has no active members, every person who was the employer of persons in the description of employment to which the scheme, or section, relates immediately before the time at which the scheme, or section, ceased to have any active members in relation to it unless after that time—

(i) a debt under section 75 of the 1995 Act(7) (deficiencies in the assets) becomes due from that person to the scheme, or section; and

(ii) either—

(aa) the full amount of the debt has been paid by that person to the trustees or managers of the scheme, or section; or

(bb) in circumstances where a legally enforceable agreement has been entered into between that person and the trustees or managers of the scheme, or section, the effect of which is to reduce the amount which is payable in respect of the debt, the reduced amount of the debt has been paid in full by that person to those trustees or managers; and

(b) in any other case, any person who has ceased to be the employer of persons in the description of employment to which the scheme, or section, relates unless—

(i) at the time when he so ceased, the scheme, or section, was not being wound up and continued to have active members in relation to it; and

(ii) a debt under section 75 of the 1995 Act became due at that time from that person to the scheme, or section, and either—

(aa) the full amount of the debt has been paid by that person to the trustees or managers of the scheme, or section; or

(bb) in circumstances where a legally enforceable agreement has been entered into between that person and the trustees or managers of the scheme, or section, the effect of which is to reduce the amount which is payable in respect of the debt, the reduced amount of the debt has been paid in full by that person to those trustees or managers.

(1)

2000 c. 8.

(2)

S.I. 2001/1062; paragraph 9(1)(a) was substituted by S.I. 2001/3650.

(3)

OJ No.L345, 19.12.2002 p1.

(4)

This section was substituted by section 36(4) of the 2004 Act.

(5)

S.I. 2001/544.

(6)

1988 c. 1.

(7)

Section 75 was amended by section 271 of the 2004 Act.