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The Occupational Pension Schemes (Cross-border Activities) Regulations 2005

Changes over time for: The Occupational Pension Schemes (Cross-border Activities) Regulations 2005 (without Schedules)

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The Occupational Pension Schemes (Cross-border Activities) Regulations 2005 is up to date with all changes known to be in force on or before 17 July 2019. There are changes that may be brought into force at a future date. Changes that have been made appear in the content and are referenced with annotations. Help about Changes to Legislation

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F512004 c. 35. Section 318(1) is cited because of the meaning there given to “modifications”, “prescribed” and “regulations”.

F52See section 317 of the Pensions Act 2004 (“the Act”) which provides that the Secretary of State must consult such persons as he considers appropriate before making regulations by virtue of the provisions of that Act (other than Part 8). This duty does not apply where regulations are made before the end of six months beginning with the coming into force of the provisions of that Act by virtue of which the regulations are made.

Citation and commencementE+W+S

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

InterpretationE+W+S

2.—(1) In these Regulations—

accrued European rights” means—

(a)

in relation to a European member of the scheme—

(i)

any rights which have accrued to or in respect of that European member to future benefits under the scheme rules, or

(ii)

any entitlement to the present payment of a pension or other benefit under the scheme rules,

to the extent that those rights or entitlement result from the periods when that European member was—

(aa)

both employed by a European employer and a qualifying person, or

(bb)

a qualifying self-employed person, and

(b)

in relation to a European survivor, any entitlement to benefits, or right to future benefits, under the scheme rules in respect of a European member to the extent that that right or entitlement results from the periods when that European member was—

(i)

both employed by a European employer and a qualifying person, or

(ii)

a qualifying self-employed person;

the Act” means the Pensions Act 2004 F1 (unless the context otherwise requires, any reference to a numbered section being to the section so numbered in that Act);

the 1993 Act” means the Pension Schemes Act 1993 F2;

the 1995 Act” means the Pensions Act 1995 F3;

the 1999 Act” means the Welfare Reform and Pensions Act 1999 F4;

actuarial valuation” shall be construed in accordance with section 224 (actuarial valuations and reports), and includes an actuarial valuation obtained by the trustees or managers of a scheme for any purpose, including that of making an application under section 288 (general authorisation to accept contributions from European employers) or section 289 (approval in relation to particular European employer);

“the commencement date” is the date referred to in regulation 1;

[F5“cross-border activity” means operating a pension scheme (as defined under section 1(5) of the Pension Schemes Act 1993) where the relationship between the employer, and the members and beneficiaries concerned, is governed by the social and labour law of an EEA state other than the EEA state in which the pension scheme is registered or authorised and in which its main administration is located;]

cross-border scheme” means a scheme which applies to European members or in relation to which there are European survivors;

[F5“cross-border transfer” means the transfer of all or part of the liabilities, technical provisions and other obligations and rights, and the corresponding assets or their cash equivalent, from one pension scheme (as defined under section 1(5) of the Pension Schemes Act 1993) to another pension scheme that is registered or authorised in a different EEA state;]

[F5“EIOPA” means the European Insurance and Occupational Pensions Authority;]

the effective date” shall be construed in accordance with section 224(2);

employment” includes any trade, business, profession, office or vocation and “employed” shall be construed accordingly;

European employer” has the meaning given in regulation 3(1);

European member” means a member of a scheme who is, or was,—

(a)

a qualifying person in respect of whom contributions were made to the scheme by a European employer, or

(b)

a qualifying self-employed person who has made contributions to the scheme;

European survivor” means a survivor of a European member of the scheme who is entitled to benefits, or has a right to future benefits, under the scheme rules in respect of that European member;

[F6host EEA state], in relation to a European employer, has the meaning given in regulation 3(5);

multi-employer scheme” shall be construed in accordance with section 307(4) F7 (modification of this Act in relation to certain categories of schemes);

new scheme” means a scheme—

(a)

which does not have any members—

(i)

in relation to whom there are any rights which have accrued to or in respect of the members in question to future benefits under the scheme rules, or

(ii)

who have any entitlement to the present payment of a pension or other benefit under the scheme rules, and

(b)

in relation to which there are not any survivors of any members of the scheme who are entitled to benefits, or have a right to future benefits, under the scheme rules in respect of those members;

new section” means a section of a segregated multi-employer scheme—

(a)

which does not have any members—

(i)

in relation to whom there are any rights which have accrued to or in respect of the members in question to future benefits under the scheme rules, or

(ii)

who have any entitlement to the present payment of a pension or other benefit under the scheme rules, and

(b)

in relation to which there are not any survivors of any members of the scheme who are entitled to benefits, or have a right to future benefits, under the scheme rules in respect of those members;

notice of intention” shall be construed in accordance with section 289(1);

pay-as-you-go scheme” means an occupational pension scheme under which there is no requirement for assets to be set aside in advance for the purpose of providing benefits under the scheme (disregarding any requirements relating to additional voluntary contributions);

pre-23rd September 2005 scheme” means an occupational pension scheme—

(a)

which—

(i)

has its main administration in the United Kingdom, and

(ii)

is not a pay-as-you-go scheme; and

(b)

in relation to which—

(i)

the trustees or managers were accepting contributions on 22nd September 2005 from any person who, had section 287(6) been in force at that date, would have been a European employer, or

(ii)

any such person was under a liability to pay contributions to the trustees or managers on 22nd September 2005;

qualifying person” means a person who is employed under a contract of service and whose place of work under that contract is sufficiently located in [F8an EEA state] other than the United Kingdom so that his relationship with his employer is subject to the social and labour law relevant to the field of occupational pension schemes of [F9that EEA state], but, for the purposes of this definition, a seconded worker is not to be regarded as being so sufficiently located in [F8an EEA state] other than the United Kingdom;

qualifying self-employed person” means a self-employed person whose place of work is sufficiently located in [F10an EEA state] other than the United Kingdom so that his employment in [F11that EEA state] is subject to the social and labour law relevant to the field of occupational pension schemes of [F11that EEA state];

registrable information” shall be construed in accordance with section 60(1) (registrable information);

scheme” means an occupational pension scheme;

seconded worker” means a person—

(a)

who—

(i)

is employed under a contract of service by an employer established in the United Kingdom and whose habitual place of work under that contract is located in the United Kingdom, or

(ii)

immediately before the commencement of the period of secondment was employed under a contract of service by an employer established in the United Kingdom and whose habitual place of work under that contract was located in the United Kingdom,

(b)

who—

(i)

was posted before the commencement date for a limited period which had not expired before that date, or

(ii)

is posted on or after the commencement date for a limited period,

to [F12an EEA state] other than the United Kingdom for the purpose of providing services on behalf of his employer, and

(c)

who—

(i)

at the time when that posting began expected to return to the United Kingdom to work for the employer described in (a)(i) or (ii) after the expiry of that period, or

(ii)

expects to retire from employment immediately after the expiry of that period;

F13...

segregated multi-employer scheme” means a multi-employer scheme which is divided into two or more sections where—

(a)

any contributions payable to the scheme by an employer in relation to the scheme or by a member are allocated to that employer's or that member's section, and

(b)

[F14a specified proportion] of the assets of the scheme is attributable to each section of the scheme and cannot be used for the purposes of any other section;

statutory funding objective” shall be construed in accordance with section 222 (the statutory funding objective); and

the survivor” in relation to a member of a scheme means a person who—

(a)

is the widow, widower or surviving civil partner of the member, or

(b)

has survived that member and has any entitlement to benefit, or right to future benefits under the scheme in respect of that member.

(2) In these Regulations, “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.

(3) [F15Subject to paragraph (4), where a scheme is a segregated multi-employer scheme], these Regulations, except regulations 4 to 8, apply as if each section of the scheme were a separate scheme.

(4) [F16This paragraph applies where—

(a)a European employer is an employer in relation to a segregated multi-employer scheme;

(b)that European employer is an associate of one or more employers in relation to that scheme.

(5) Where paragraph (4) applies, all sections of the scheme that receive contributions from at least one of the employers referred to in that paragraph are together to be treated as a separate scheme for the purposes of regulations 7(2)(d) and 8(5).

(6) In paragraph (4)(b) “associate” has the meaning given in section 435 of the Insolvency Act 1986 (associated employer).]

F1Part 3 of the Act is modified in its application to occupational pension schemes undertaking cross-border activities by the Occupational Pension Schemes (Scheme Funding) Regulations 2005 (S.I. 2005/3377).

F7The Act is modified in its application to multi-employer schemes by S.I. 2005/441 as amended by S.I. 2005/993 and S.I. 2005/2113.

Meaning of “European employer” and “host member State” in Part 7 of the ActE+W+S

3.[F17(1) Subject to paragraphs (2) to (4), in Part 7 of the Act “European employer” means a person who in relation to a [F18host EEA state] either—

(a)employs qualifying persons in [F19that EEA state]; or

(b)is a qualifying self-employed person in [F19that EEA state],

and is making (or proposes to make) contributions to a scheme either in respect of a qualifying person or in respect of himself as a qualifying self-employed person.]

(2) But an employer is not to be regarded as a European employer in relation to any persons whom he employs who are not qualifying persons.

(3) Where—

(a)the Regulator has approved the trustees or managers of a scheme in relation to a European employer, and

(b)benefits are, or will become, payable under the scheme rules to or in respect of any member who is or was a qualifying person in relation to that European employer, or to or in respect of any member who is or was a qualifying self-employed person,

“European employer” shall include the persons specified in paragraph (4).

(4) The persons referred to in paragraph (3) are—

(a)in a case where the approval was granted in relation to a body corporate which has since ceased to be an employer of qualifying persons, that body corporate,

(b)in a case where—

(i)the approval was granted in relation to a European employer who is not a body corporate, and

(ii)that European employer has ceased to be an employer of qualifying persons,

the person who was the employer of qualifying persons who were, in accordance with that approval, members of the scheme immediately before the time at which the scheme ceased to have any such active members, and

(c)in a case where the approval was granted in relation to a qualifying self-employed person who has ceased to be such a person, that person.

(5) In Part 7 of the Act, [F20“host EEA state”], in relation to a European employer, means—

(a)where that European employer is specified in a notice of intention, [F21the EEA state or states] other than the United Kingdom where—

(i)that European employer has employees who are qualifying persons, or

(ii)that European employer is a qualifying self-employed person, or

(b)where the Regulator has approved the trustees or managers of a scheme in relation to that European employer, [F21the EEA state or states] other than the United Kingdom where—

(i)that European employer has or had employees who are or were members of the scheme, or

(ii)in the case of a self-employed person who is or was a member of the scheme, that self-employed person is or was a qualifying self-employed person.

Applications for general authorisation to accept contributions from European employers: established schemes which are not carrying on cross-border activityE+W+S

4.—(1) This regulation applies to all schemes other than—

(a)a scheme which is a new scheme on the date on which the trustees or managers make an application for authorisation under section 288, or

(b)a scheme which is a pre-23rd September 2005 scheme.

(2) Where the trustees or managers of a scheme apply to the Regulator for authorisation under section 288, the application shall be made—

(a)in the case of a money purchase scheme, in a form which provides the information described in paragraphs 2 and 3 of Schedule 1, or

(b)in the case of a scheme which is not a money purchase scheme, in a form which provides the information described in paragraphs 2 and 4 of that Schedule.

Applications for general authorisation to accept contributions from European employers: established schemes which are carrying on cross-border activityE+W+S

5.—(1) This regulation applies where—

(a)a scheme is a pre-23rd September 2005 scheme, and

(b)the trustees or managers of that scheme apply, within the period of three months beginning on the commencement date, to the Regulator for authorisation under [F22section 288; or].

[F23(c)the trustees or managers of that scheme apply, on or after 6th April 2007, to the Regulator for authorisation under section 288.]

(2) [F24Subject to paragraph (3) or (4), where the application is made before 22nd September 2008, such] an application shall be made—

(a)in the case of a money purchase scheme, in a form which provides the information described in paragraphs 2 and 3 of Schedule 1, or

(b)in the case of a scheme which is not a money purchase scheme, in a form which provides the information described in paragraphs 2 and 5 of that Schedule.

[F25(3) Where—

(a)the trustees or managers of a [F26pre-23rd September 2005] scheme make such an application on or before 29th March 2006;

(b)that application is made in a form which—

(i)includes the full name of the scheme; and

(ii)in the case of—

(aa)a money purchase scheme, provides as much of the information specified in paragraph (2)(a) as is readily available to those trustees or managers on the day on which the application is made; or

(bb)a scheme which is not a money purchase scheme, provides as much of the information specified in paragraph (2)(b) as is readily available to those trustees or managers on the day on which the application is made; and

(c)those trustees or managers provide all of the remaining information specified in paragraph (2)(a) or (b), as the case may be, on or before 15th May 2006;

that application shall be deemed to have been made on the day on or before 29th March 2006 on which the application was first made.]

[F27(4) In a case where the trustees or managers of a pre-23rd September 2005 scheme make an application on or after 22nd September 2008—

(a)where the scheme is a money purchase scheme, such an application shall be made in a form which provides the information described in paragraphs 2 and 3 of Schedule 1; or

(b)where the scheme is not a money purchase scheme, such an application shall be made in a form which provides the information described in paragraphs 2 and 4 of that Schedule.]

Applications for general authorisation to accept contributions from European employers: new schemesE+W+S

6.—(1) This regulation applies to schemes which are new schemes on the date on which the trustees or managers make an application for authorisation under section 288.

(2) Where the trustees or managers of a scheme apply to the Regulator for authorisation under section 288, the application shall be made—

(a)in the case of a money purchase scheme, in a form which provides the information described in paragraphs 2 and 3 of Schedule 1, or

(b)in the case of a scheme which is not a money purchase scheme, in a form which provides the information described in paragraph 2 of that Schedule.

Conditions for general authorisation to accept contributions from European employersE+W+S

7.—(1) Where the Regulator receives an application for authorisation under regulation 4, 5 or 6, it shall, before granting the authorisation, be satisfied that the applicant meets the conditions described in paragraph (2).

(2) The conditions to be met under paragraph (1) are—

(a)that the scheme is registered in the register,

[F28(aa)that the register specifies the EEA state in which the scheme operates,]

(b)[F29the requirements to be satisfied by the scheme pursuant to Articles 10(1), 13(4) and 22(1) and Title IV] of the Directive are satisfied,

(c)that the trustees or managers of the scheme have ensured that the scheme will be operated in a way which is consistent with the requirements of the law relating to schemes, and

(d)in the case of a scheme which is not a money purchase scheme—

(i)where the application is made under regulation 4, that the scheme meets the statutory funding objective, or

[F30(ii)where the application is made under regulation 5—

(aa)in a case where the application is made on or after 6th April 2007 but before 22nd September 2008, that the scheme to which the application relates will, in the opinion of the Regulator, meet the statutory funding objective by 22nd September 2008; or

(bb)in a case where the application is made on or after 22nd September 2008, that the scheme to which the application relates meets the statutory funding objective; or]

(iii)where the application is made under regulation 6, that the scheme will, in the opinion of the Regulator, meet the statutory funding objective by the expiry of the period of two years beginning on the date on which the application was made.

Criteria for revocation of general authorisation to accept contributions from European employersE+W+S

8.—(1) The Regulator may revoke an authorisation granted under section 288 where it is satisfied by the trustees or managers of that scheme that—

(a)the scheme does not have any European members who have any accrued European rights, and

(b)there are not in relation to the scheme any survivors of a European member of the scheme who have any accrued European rights.

(2) The Regulator may revoke an authorisation granted under section 288 where it is satisfied that any of the criteria described in paragraph (3) are met in relation to the scheme.

(3) The criteria to be applied by the Regulator in reaching any decision relating to the revocation of an authorisation under paragraph (2) are the seriousness, frequency and persistence of any failure—

(a)by the trustees or managers of the scheme to ensure that the scheme is operated in a way which is consistent with, or

(b)by the scheme to comply with,

any of the requirements described in paragraph (4).

(4) The requirements for the purposes of paragraph (3) for the purposes of any decision by the Regulator relating to the revocation of an authorisation are—

(a)the provisions of the Directive other than [F31Article 14(3)],

(b)the condition described in regulation 7(2)(c), and

(c)in the case of a scheme which is not a money purchase scheme and to which—

(i)regulation 4 applies, the condition described in paragraph (5),

(ii)regulation 5 applies, the condition described in regulation 7(2)(d)(ii) or, after 22nd September 2008, the condition described in paragraph (5), or

(iii)regulation 6 applies, the condition described in regulation 7(2)(d)(iii) or, after the expiry of the period of two years beginning on the date on which the application for the authorisation of the scheme was made, the condition described in paragraph (5).

(5) The condition to be met under paragraph (4)(c)(i), (ii) or (iii) is that the scheme—

(a)meets the statutory funding objective, or

(b)where—

(i)the trustees or managers of the scheme have obtained an actuarial valuation, and

(ii)it appears to them that the statutory funding objective was not met on the effective date of that valuation,

the scheme will, in the opinion of the Regulator, meet the statutory funding objective within two years after that date.

[F32(6) A revocation made pursuant to this regulation must be notified to EIOPA.]

Applications for approval in relation to particular European employer: established schemes which are not carrying on cross-border activityE+W+S

9.—(1) This regulation applies to all schemes other than—

(a)a scheme which is a new scheme on the date on which the trustees or managers make an application for approval under section 289,

(b)a scheme which is a pre-23rd September 2005 scheme, or

(c)where the trustees or managers of a segregated multi-employer scheme have stated in the notice of intention relating to an application for approval under section 289 that any contributions payable to the scheme by the European employer specified in that notice of intention will be allocated to a new section, that section (to which these Regulations apply as if that section were a separate scheme in accordance with regulation 2(3)).

(2) Where the trustees or managers of a scheme apply to the Regulator for approval under section 289 in relation to one or more European employers, the information to be contained in the notice of intention, in addition to the information specified in section 289(1)(a) to (c), shall be determined—

(a)in the case of a money purchase scheme, in accordance with the provisions of paragraph 6(1), (2), (3) and (7) of Schedule 1, or

(b)in the case of a scheme which is not a money purchase scheme, in accordance with the provisions of paragraph 6(1), (2), (4) and (7) of that Schedule.

Applications for approval in relation to particular European employer: established schemes which are carrying on cross-border activityE+W+S

10.—(1) This regulation applies where—

(a)a scheme is a pre-23rd September 2005 scheme, and

(b)the trustees or managers of that scheme make an application for approval under section 289 in relation to one or more European employers within the period of three months beginning on the commencement date; [F33or]

[F34(c)the trustees or managers of that scheme make an application for approval under section 289 in relation to one or more European employers on or after the end of that period.]

(2) [F35Subject to paragraph (3) or (4), the information to be contained in the notice of intention relating to such an application, where the application is made before 22nd September 2008] in addition to the information specified in section 289(1)(a) to (c), shall be determined—

(a)in the case of a money purchase scheme, in accordance with the provisions of paragraph 6(1), (2), (3) and (7) of Schedule 1, or

(b)in the case of a scheme which is not a money purchase scheme, in accordance with the provisions of paragraph 6(1), (2), (5) and (7) of that Schedule.

[F36(3) Where—

(a)the trustees or managers of a [F37pre-23rd September 2005] scheme make such an application on or before 29th March 2006;

(b)that application is made in a form which—

(i)includes the information specified in section 289(1)(a) to (c); and

(ii)in the case of—

(aa)a money purchase scheme, provides as much of the information specified in paragraph (2)(a) as is readily available to those trustees or managers on the day on which the notice of intention is given; or

(bb)a scheme which is not a money purchase scheme, provides as much of the information specified in paragraph (2)(b) as is readily available to those trustees or managers on the day on which the notice of intention is given; and

(c)those trustees or managers provide all of the remaining information specified in paragraph (2)(a) or (b), as the case may be, on or before 15th May 2006;

that application shall be deemed to have been made on the day on or before 29th March 2006 on which the notice of intention was first given.]

[F38(4) In a case where an application is made on or after 22nd September 2008—

(a)where the scheme is a money purchase scheme, such an application shall be made in accordance with the provisions of paragraph 6(1), (2), (3) and (7) of Schedule 1; or

(b)where the scheme is not a money purchase scheme, such an application shall be made in accordance with the provisions of paragraph 6(1), (2), (4) and (7) of that Schedule.]

Applications for approval in relation to particular European employer: new schemes and new sections of segregated multi-employer schemesE+W+S

11.—(1) This regulation applies to—

(a)a scheme which is a new scheme on the date on which the trustees or managers make an application for approval under section 289, or

(b)where the trustees or managers of a segregated multi-employer scheme have stated in the notice of intention relating to an application for approval under section 289 that any contributions to the scheme by the European employer specified in that notice of intention will be allocated to a new section, that section.

(2) The information to be contained in the notice of intention relating to such an application, in addition to the information specified in section 289(1)(a) to (c), shall be determined in accordance with the provisions of paragraph 6(1), (2), (6) and (7) of Schedule 1.

Conditions for approval in relation to particular European employerE+W+S

12.—(1) Where the Regulator receives an application made under regulation 9, 10 or 11 for approval in relation to one or more European employers specified in the notice of intention it shall, before granting the approval in relation to any such European employer, be satisfied that persons giving the notice of intention meet the condition described in paragraph (2) in relation to that specified European employer.

(2) The condition to be met under paragraph (1) is that the Regulator has no reason to doubt that—

(a)the administrative structure of the scheme,

(b)the financial situation of the scheme, and

(c)the repute and professional qualifications or experience of the persons running the scheme,

are compatible with the proposed operations of the scheme in the specified [F39host EEA state].

Revocation of approval in relation to particular European employerE+W+S

13.—(1) In this regulation, “notified” in relation to a requirement means a requirement which was included in information which was received by the Regulator from the competent authority in the [F40host EEA state] in pursuance of [F41Article 11(7) or (9)] of the Directive and was forwarded by the Regulator—

(a)in accordance with section 290(1) (notification of legal requirements of [F40host EEA state] outside the United Kingdom) to the person who gave the notice of intention, or

(b)in accordance with section 290(2) to the trustees or managers of the scheme,

as the case may be.

(2) Where the Regulator has granted approvals under section 289 to the trustees or managers of a scheme in relation to one or more specified European employers it may revoke any or all of those approvals where it is satisfied by the trustees or managers of the scheme that—

(a)the scheme does not have any European members who have any accrued European rights, and

(b)there are not in relation to the scheme any survivors of a European member of the scheme who have any accrued European rights.

(3) Where the Regulator has granted approvals under section 289 to the trustees or managers of a scheme in relation to more than one specified European employer it may decide under paragraph (4) or (5) to revoke those approvals in relation to one or more such European employers.

(4) Where the Regulator has granted approvals under section 289 to the trustees or managers of a scheme in relation to one or more specified European employers and those European employers are all located in the same [F40host EEA state], the criteria to be applied by the Regulator in reaching any decision relating to the revocation of any such approval are the seriousness, frequency and persistence of any failure—

(a)by the trustees or managers of the scheme to ensure that the scheme is operated in a way which is consistent with, or

(b)by the scheme to comply with,

any of the requirements described in paragraph (5).

(5) The requirements under paragraph (4) for the purposes of any decision by the Regulator relating to the revocation of an approval are—

(a)the notified requirements of the social and labour law of that [F40host EEA state],

(b)the notified information requirements imposed by that [F40host EEA state] in pursuance of [F42Article 11(6)] of the Directive, or

(c)the conditions described in regulation 12(2).

(6) Where the Regulator has granted approvals under section 289 to the trustees or managers of a scheme in relation to more than one specified European employer and not all of those European employers are located in the same [F40host EEA state], the criteria to be applied by the Regulator in reaching any decision relating to the revocation of any such approval are the seriousness, frequency and persistence of any failure—

(a)by the trustees or managers of the scheme to ensure that the scheme is operated in a way which is consistent with, or

(b)by the scheme to comply with,

any of the requirements described in paragraph (7).

(7) The requirements for the purposes of paragraph (6) are—

(a)the notified requirements of the social and labour law of any of the [F43host EEA states],

(b)the notified information requirements imposed by any of those [F43host EEA states] in pursuance of [F44Article 11(6)] of the Directive, or

(c)the conditions described in regulation 12(2).

[F45(8) A revocation made pursuant to this regulation must be notified to EIOPA.]

[F46Register of occupational and personal pension schemesE+W+S

13A.  In accordance with article 9(3) of the Directive, the Regulator must send to EIOPA the information from the register compiled and maintained by the Regulator pursuant to section 59(1) of the Act.]

Modifications of pensions legislation in relation to European members of cross-border schemesE+W+S

14.—(1) Where a cross-border scheme is not a pre-23rd September 2005 scheme, the provisions of the 1993 Act and the 1995 Act which are listed in paragraph 2, 3 or 4 of Schedule 2 shall be modified in their application to that scheme as if—

(a)the European members of that scheme, and

(b)any European survivors,

were excluded from the application of those provisions in respect of any accrued European rights.

(2) Where a cross-border scheme is a pre-23rd September 2005 scheme, the provisions of the 1993 Act and the 1995 Act which are listed in paragraph 2 or 4 of Schedule 2 shall be modified in their application to that scheme as if—

(a)the European members who were such members of that scheme on the commencement date; and

(b)any European survivors of such European members,

were excluded from the application of those provisions in respect of any accrued European rights.

(3) Where a cross-border scheme is a pre-23rd September 2005 scheme, the provisions of the 1993 Act and the 1995 Act which are listed in paragraph 2, 3 or 4 of Schedule 2 shall be modified in their application to that scheme as if—

(a)the European members who became such members of the scheme after the commencement date, and

(b)any European survivors of such European members,

were excluded from the application of those provisions in respect of any accrued European rights.

Ring-fencing of assetsE+W+S

15.—(1) For the purposes of this regulation, the assets and liabilities of a scheme shall be determined in accordance with Part 3 of the Act and regulations made under that Part.

(2) Where the trustees or managers of a scheme receive contributions to the scheme from a European employer, the Regulator may issue a notice (“a ring-fencing notice”) to the trustees or managers of that scheme where it has reasonable grounds for believing that—

(a)a person has done or will do any act which constitutes a misuse or misappropriation of the assets of the scheme, or

(b)a situation exists which amounts to a material threat to the interests of the members of the scheme who are or have been qualifying persons or qualifying self-employed persons in relation to any European employer.

(3) A ring-fencing notice may direct the trustees or managers of the scheme—

(a)to notify the Regulator, within three months of the date of the issue of the notice, of the details of the assets and liabilities of the scheme attributable to each European employer—

(i)from whom the trustees or managers have received or are receiving contributions, and

(ii)in relation to whom the ring-fencing notice is given, or

(b)for so long as the Regulator has reasonable grounds for believing that there is a material threat to the interests of the members of the scheme who are or have been qualifying persons in relation to any such European employer or who are or have been such a European employer, to divide the scheme into two or more sections and ensure that—

(i)any contributions payable to the scheme by any such European employer in relation to the scheme or by any such member are allocated to a separate section, and

(ii)[F47within a time specified by the Regulator (subject to any extension the Regulator may subsequently grant),] a specified part or proportion of the assets of the scheme is attributable to that section and cannot be used for the purposes of any other section.

Relevant legal requirements for the purposes of section 293E+W+S

16.  Where a UK employer has made, makes, or proposes to make, contributions to a European pensions institution in respect of persons who are not qualifying persons, the relevant legal requirements for the purposes of section 293 are, in relation to such persons and their survivors, those requirements of the law relating to schemes as it applies in Great Britain which are listed in paragraph 2, 3 or 5 of Schedule 2.

Manner of applying to the Regulator under regulations 4 to 6 and 9 to 11E+W+S

17.—(1) In this regulation, “electronic communications network” shall be construed in accordance with section 304 (notification and documents in electronic form).

(2) An application to the Regulator by the trustees or managers of a scheme for authorisation under section 288 or for approval under section 289 shall be made in writing, or, where any requirements imposed by or under section 304 are complied with, may be made by transmitting it to the Regulator—

(a)by means of an electronic communications network, or

(b)by other means but in a form that nevertheless requires the use of apparatus by the Regulator to render it intelligible.

(3) A notification by the Regulator under section 289(2)(a)(i) or (b) to the persons who gave a notice of intention shall be made in writing, or, where any requirements imposed by or under section 304 are complied with, may be made by transmitting it to those persons—

(a)by means of an electronic communications network, or

(b)by other means but in a form that nevertheless requires the use of apparatus by those persons to render it intelligible.

Consequential amendmentE+W+S

18.—(1) The Occupational Pension Schemes (Trust and Retirement Benefits Exemption) Regulations 2005 F48 are amended as follows.

(2) In paragraph (2) of regulation 1, after the definition of “relevant statutory scheme”, add—

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..

(3) After regulation 1, insert—

Application

1A.  With the exception of regulation 2(a), these Regulations do not apply to any scheme undertaking cross-border activities..

[F49Treatment of overseas residents: section 66A of the Pensions Act 1995E+W+S

19.  Where the provisions of an occupational pension scheme comply with these Regulations those provisions shall not contravene section 66A(3) of the Pensions Act 1995 to the extent that they would, apart from that section, have an effect with respect to the matters specified in paragraphs (a) to (c) of that section, which would be different according to whether that person works wholly in the United Kingdom or wholly or partly outside the United Kingdom.]

[F50Cross-border transfers: requirements for receiving schemesE+W+S

20.(1) The trustees or managers of an occupational pension scheme (“the receiving scheme”) must not accept a cross-border transfer from a pension scheme (“the transferring scheme”) unless—

(a)the cross-border transfer has been approved by a majority of members and a majority of beneficiaries of the transferring scheme who will become members or beneficiaries of the receiving scheme, or by a majority of their representatives;

(b)the cross-border transfer has been approved by any employer of the members in sub-paragraph (a);

(c)the trustees or managers of the receiving scheme have applied to the Regulator for authorisation of the cross-border transfer in a form which includes the information set out in paragraph (4);

(d)the Regulator—

(i)has authorised the cross-border transfer; or

(ii)has not informed the trustees or managers of the receiving scheme of its decision on the application within three months and seven weeks of the day on which the Regulator received the application; and

(e)the costs of the cross-border transfer will be incurred by persons other than—

(i)any remaining members or beneficiaries of the transferring scheme;

(ii)any existing members of the receiving scheme.

(2) The conditions under section 287 of the Act are deemed to be met where—

(a)the Regulator has authorised the cross-border transfer;

(b)the cross-border transfer results in cross-border activity; and

(c)the trustees or managers of the receiving scheme are not already authorised or approved under Part 7 of the Act.

(3) The Regulator may only authorise a cross-border transfer where the competent authority of the EEA state where the transferring scheme is registered or authorised has given its consent to the cross-border transfer.

(4) An application made under paragraph (1)(c) must contain the following information—

(a)the written agreement between the transferring scheme and the receiving scheme setting out the conditions of the cross-border transfer;

(b)a description of the main characteristics of the receiving scheme;

(c)a description of the liabilities, technical provisions and other obligations and rights, and the corresponding assets or their cash equivalent to be transferred;

(d)the names and locations of the main administrations of the transferring scheme and the receiving scheme and the EEA state in which each scheme is registered or authorised;

(e)the name of any employer of the members in paragraph (1)(a) and the location of its main administration;

(f)evidence that the cross-border transfer has been approved in accordance with sub-paragraphs (a) and (b) under paragraph (1);

(g)where applicable, the names of the EEA states whose social and labour law relevant to the field of occupational pension schemes is applicable to the transferring scheme concerned.

(5) On receipt of an application under paragraph (1)(c), the Regulator must without delay send a copy of the application to the competent authority of the EEA state where the transferring scheme is registered or authorised.

(6) In considering an application under paragraph (1)(c), the Regulator must only assess whether—

(a)the receiving scheme has provided all the information referred to in paragraph (4);

(b)the administrative structure and financial situation of the receiving scheme and the good repute or professional qualifications or experience of the persons running it are compatible with the proposed cross-border transfer;

(c)the long-term interests of the members and beneficiaries of the receiving scheme, and those whose rights are being transferred to the receiving scheme, are adequately protected during and after the cross-border transfer;

(d)the technical provisions of the receiving scheme are fully funded at the date of the cross-border transfer, where the cross-border transfer results in cross-border activity; and

(e)the assets or cash equivalent to be transferred are sufficient and appropriate to cover the liabilities, technical provisions and other obligations and rights to be transferred.

(7) Within three months of the day on which the Regulator received the application under paragraph (1)(c), the Regulator must—

(a)inform the trustees or managers of the receiving scheme whether the cross-border transfer is authorised; and

(b)if the cross-border transfer is not authorised, inform the trustees or managers of the reasons for the refusal.

(8) Within two weeks of the day on which the Regulator decided the application under paragraph (1)(c), the Regulator must send a copy of the decision to the competent authority of the EEA state where the transferring scheme is registered or authorised.

(9) Where—

(a)the cross-border transfer results in cross-border activity;

(b)the competent authority of the EEA state where the transferring scheme is registered or authorised received a copy of the Regulator’s decision under paragraph (8); and

(c)the competent authority informs the Regulator of—

(i)the requirements of that EEA state’s social and labour law under which the receiving scheme must be operated; and

(ii)the information requirements of the host EEA state referred to in Title IV of the Directive that apply to the cross-border activity concerned;

the Regulator must communicate the information in sub-paragraph (c) to the trustees or managers of the receiving scheme within one week of the day on which the Regulator received it.

(10) The power to grant authorisation of an application made under paragraph (1)(c) is prescribed as a regulatory function for the purposes of section 93.]

[F50Cross-border transfers: requirements for transferring schemesE+W+S

21.(1) The trustees or managers of an occupational pension scheme (“the transferring scheme”) must not make a cross-border transfer to another pension scheme (“the receiving scheme”) unless—

(a)the cross-border transfer has been approved by a majority of members and a majority of beneficiaries of the transferring scheme who will become members or beneficiaries of the receiving scheme, or by a majority of the trustees or managers of the transferring scheme;

(b)the cross-border transfer has been approved by any employer of the members in sub-paragraph (a);

(c)where there is a cross-border transfer of accrued rights which are not relevant money purchase rights within the meaning of regulation 12 of the Occupational Pension Schemes (Preservation of Benefit) Regulations 1991, the condition under paragraph (3) of regulation 12 of those Regulations, as modified by paragraph (2) of this regulation, is satisfied;

(d)the cross-border transfer has been authorised by the competent authority of the EEA state where the receiving scheme is registered or authorised, or the time period set in accordance with Article 12(11) of the Directive has expired; and

(e)the costs of the cross-border transfer will be incurred by persons other than:

(i)any remaining members or beneficiaries of the transferring scheme;

(ii)any existing members of the receiving scheme.

(2) For the purposes of paragraph (1)(c) of this regulation, paragraph (3) of regulation 12 of, and Schedule 3 to, the Occupational Pension Schemes (Preservation of Benefit) Regulations 1991 are to be read as if—

(a)references to “receiving scheme” and “transferring scheme” were references to “receiving scheme” and “transferring scheme” as defined in this regulation; and

(b)sub-paragraphs (b) and (c) of paragraph (3) were omitted.

(3) If it receives a copy of an application for authorisation of a cross-border transfer from the competent authority of another EEA state where a receiving scheme is registered or authorised, the Regulator must only assess whether—

(a)in the case of a partial transfer of the transferring scheme’s liabilities, technical provisions, and other obligations and rights, as well as the corresponding assets or their cash equivalent, the long-term interests of the members and beneficiaries of the remaining part of the transferring scheme are adequately protected;

(b)the individual entitlements of the members and beneficiaries are at least the same after the cross-border transfer;

(c)the assets or cash equivalent to be transferred are sufficient and appropriate to cover the liabilities, technical provisions and other obligations and rights to be transferred; and

(d)where there is a cross-border transfer of accrued rights which are not relevant money purchase rights within the meaning of regulation 12 of the Occupational Pension Schemes (Preservation of Benefit) Regulations 1991, the condition under paragraph (3) of regulation 12 of those regulations, as modified by paragraph (2) of this regulation, is satisfied.

(4) The Regulator must notify its refusal or granting of consent to the cross-border transfer on the basis of the assessment in paragraph (3) to the competent authority of the EEA state where the receiving scheme is registered or authorised within eight weeks of the day on which the Regulator received a copy of the application from the competent authority of another EEA state.

(5) Where the cross-border transfer is authorised by the competent authority of the EEA state where the receiving scheme is registered, and the cross-border transfer results in cross-border activity, then within four weeks of the day on which the Regulator receives notification of the authorisation of the cross-border transfer from the competent authority, the Regulator must inform the competent authority of the EEA state where the receiving scheme is registered or authorised of—

(a)the requirements of social and labour law under which the receiving scheme must be operated; and

(b)the information requirements referred to in Title IV of the Directive that apply to the cross-border activity concerned.]

Signed by authority of the Secretary of State for Work and Pensions.

Stephen C. Timms

Minister of State,

Department for Work and Pensions

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