18 Amendment of the Occupational Pension Schemes (Cross-border Activities) Regulations 2005
1 Amend the Occupational Pension Schemes (Cross-border Activities) Regulations 2005 as follows.
S.I. 2005/3381; amended by S.I. 2006/467 and 925.
2 In regulation 2 (interpretation)—
(a) in paragraph (1) in the definition of “segregated multi-employer scheme” in sub-paragraph (b) for “a specified part or proportion” substitute “a specified proportion”;
(b) in paragraph (3) for “Where a scheme is a segregated multi-employer scheme” substitute “Subject to paragraph (4), where a scheme is a segregated multi-employer scheme”; and
(c) after paragraph (3) add—

“4 This 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).
1986 c.45; section 435 was amended by section 261(1) of, and paragraph 122 of Schedule 27 to, the Civil Partnership Act 2004 and by S.I. 2005/3129.”

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3 In regulation 3 (meaning of “European employer” and “host member State” in Part 7 of the Pensions Act 2004) for paragraph (1) substitute—

“1 Subject to paragraphs (2) to (4), in Part 7 of the Act “European employer” means a person who in relation to a host member State either—
(a) employs qualifying persons in that member State; or
(b) is a qualifying self-employed person in that member 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.”

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4 In regulation 5 (applications for general authorisation to accept contributions from European employers: established schemes which are carrying on cross-border activity)—
(a) in paragraph (1)—
(i) in sub-paragraph (b) for “section 288;” substitute “section 288; or”; and
(ii) after that sub-paragraph add—

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

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(b) in paragraph (2) for “Subject to paragraph (3), such” substitute “Subject to paragraph (3) or (4), where the application is made before 22nd September 2008, such”; and
(c) after paragraph (3) add—

“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.”

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5 In regulation 7(2) (conditions for general authorisation to accept contributions from European employers) in sub-paragraph (d) for head (ii) substitute—

“(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”

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6 In regulation 10 (applications for approval in relation to particular European employer: established schemes which are carrying on cross-border activity)—
(a) in paragraph (1)—
(i) at the end of sub-paragraph (b) insert “or”; and
(ii) after that sub-paragraph insert—

“(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.”

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(b) in paragraph (2), for “Subject to paragraph (3), the information to be contained in the notice of intention relating to such an application,” substitute “Subject 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”; and
(c) after paragraph (3) add—

“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.”

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7 In regulation 15(3) (ring-fencing of assets) at the beginning of sub-paragraph (b)(ii) insert “within a time specified by the Regulator (subject to any extension the Regulator may subsequently grant),”.
8 After regulation 18 (consequential amendment) add—

“19 Treatment of overseas residents: section 66A of the Pensions Act 1995
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.
Section 66A was inserted by section 55 of the Child Support, Pensions and Social Security Act 2000.”

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9 In Schedule 1 (additional information to be contained in applications for authorisation or approval) in paragraph 6(7)—
(i) at the end of paragraph (h) omit “and”; and
(ii) after paragraph (i) add—

“(j) the number of members in the scheme; and
(k) whether the scheme has any external, contractual-based asset manager.”

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