Social Welfare and Pensions Act 2005

Cross-border schemes.

37

37.—The Principal Act is amended by inserting the following after Part XI (inserted by section 5 of the Act of 2002)—

“PART XII

Cross-border Schemes

Interpretation (Part XII).

148.—(1) In this Part—

‘Court’ means the High Court;

‘EEA Agreement’ means the Agreement on the European Economic Area signed at Oporto on 2 May 1992, as adjusted by the Protocol signed at Brussels on 17 March 1993;

‘undertaking’, in relation to a scheme, means a sponsoring undertaking located in another Member State which makes or proposes to make contributions to the scheme;

‘relevant statutory requirements’ means the statutory provisions relevant to the field of schemes, that may be prescribed;

‘social and labour law’, in relation to a Member State, means the social and labour law (within the meaning of Article 20 of the Directive) of that State relevant to occupational pension schemes (within the meaning of that article).

(2) In this Part Member State shall be read as including reference to those States which are Contracting Parties to the EEA Agreement.

Authorisation to operate cross-border schemes.

149.—(1) The trustees of a scheme shall not accept any contributions to a scheme from an undertaking unless—

( a) the trustees are authorised by the Board under this section, and

( b) approval has been granted or deemed to have been granted under section 151 in relation to the undertaking concerned.

(2) An application for authorisation under this section shall—

( a) be in writing and be in the form that may be prescribed, and

( b) contain the information that may be prescribed and different information may be prescribed for different schemes or categories of schemes.

(3) The trustees of a small scheme who wish to apply for authorisation under this section shall, notwithstanding that it is a small scheme and in addition to the other requirements of subsection (2), comply with the provisions of this Act that are prescribed from time to time for the purposes of this section.

(4) The conditions of authorisation are that—

( a) the trustees and the scheme comply with the provisions of this Act applicable to the trustees and the scheme and, in the case of a small scheme, comply with subsection (3),

( b) in the case of a scheme to which section 44 applies, the scheme satisfies the funding standard provided for in section 44, and

( c) the trustees and the scheme comply with any other conditions that may be prescribed.

(5) The Board shall, where it is satisfied that the scheme satisfies all the conditions for authorisation under subsection (4), grant the authorisation.

(6) An authorisation under this section shall be in writing.

Revocation of authorisation.

150.—(1) The Board may revoke an authorisation under section 149—

( a) on being satisfied that the conditions of authorisation have not been complied with, or

( b) where the trustees of the scheme make a written request to the Board for revocation of the authorisation including the reasons for that request.

(2) Before revoking an authorisation under this section the Board shall—

( a) notify the trustees of the scheme in writing of its intention to revoke the authorisation and of the reasons for the revocation,

( b) notify the trustees in writing that the trustees or a person acting on their behalf may make representations to the Board in relation to the intended revocation within 14 days after the date of issue of the notification, and

( c) consider any representations made under paragraph ( b) before deciding whether or not to proceed with the revocation.

(3) Where the Board revokes an authorisation under this section, it shall notify in writing the trustees of the scheme and the competent authorities of any relevant host Member State of the revocation.

(4) Where the trustees of the scheme receive notification of revocation under subsection (3), they shall immediately notify in writing any undertaking from whom they accept contributions to the scheme and shall cease to accept any further contributions from those undertakings from the date of receipt of the notification.

(5) The Board shall publish or cause to have published notice of revocation of an authorisation in Iris Oifigiúil and in at least one daily newspaper circulating in the State within 21 days after the date of the notification of the revocation under subsection (3).

(6) Where the Board revokes an authorisation under this section, the trustees may, within 21 days after the date of the notification of the revocation under subsection (3), appeal to the Court against the decision of the Board to revoke.

(7) On the hearing of an appeal, the Court may make one of the following orders—

( a) an order confirming the decision appealed against, or

( b) an order quashing that decision.

(8) The Court may also make such ancillary orders as it considers appropriate.

(9) Nothing in this section in regard to the revocation of an authorisation shall affect the validity of anything done in accordance with the authorisation before the revocation of the authorisation.

(10) Unless the Court otherwise orders, revocation under this section of an authorisation takes effect on and from the date of receipt of the notification under subsection (3), irrespective of whether or not the trustees appeal against the revocation under this section.

Approval to accept contributions.

151.—(1) Where the trustees of a scheme who are authorised under section 149 propose to accept contributions to the scheme from a particular undertaking the trustees shall notify the Board in writing.

(2) A notification under subsection (1) shall be in the form that may be prescribed and shall contain the following particulars:

( a) the name and location of the undertaking from whom the trustees propose to accept contributions;

( b) the name of any host Member State;

( c) any other information that may be prescribed.

(3) On receipt of a notification under subsection (1), the Board may request the trustees to provide further information in relation to the notification.

(4) Unless the Board has reason to doubt that the proposed arrangement between the undertaking and the individuals in respect of whom the undertaking makes or proposes to make contributions is compatible with the scheme, the Board, within 3 months after the date of receipt of the notification in accordance with subsection (1), or within 3 months after the date of receipt of any further information requested under subsection (3), whichever is the later, shall notify in writing—

( a) the competent authority of the host Member State of any relevant information contained in the notification, and

( b) the trustees of the scheme that approval has been granted by it in relation to the undertaking specified in the notification.

(5) If no notification is received from the Board under subsection (4) within the period specified in that subsection approval is deemed to have been granted in relation to the undertaking specified in the notification under subsection (1) at the end of that period.

(6) Where the Board has notified a competent authority under subsection (4), and, pursuant to paragraphs 5 or 8 of Article 20 of the Directive, the competent authority informs the Board as to the requirements of the social and labour law of the host Member State and any rules that are to be applied in accordance with Article 18(7) and Article 20(7) of the Directive, the Board shall, as soon as reasonably practicable following receipt of the information provide that information to the trustees of the scheme concerned.

(7) Where approval is granted or deemed to have been granted under this section, the trustees shall not accept contributions from the undertaking specified in the notification under subsection (1) until the earlier of—

( a) 2 months after the date on which the Board notifies the trustees of the scheme under subsection (4), or 2 months after the date on which the approval is deemed to have been granted under subsection (5) has expired, or

( b) the date the trustees of the scheme have received information from the Board in accordance with subsection (6).

Miscellaneous provisions relating to monitoring and enforcement.

152.—(1) The trustees of a scheme to whom approval has been granted or deemed to have been granted under section 151 shall ensure that the scheme is operated in a manner which is consistent with the social and labour law, investment and information requirements of any relevant host Member State.

(2) Where—

( a) the competent authorities of the host Member State, in pursuance of Article 20(9) of the Directive, inform the Board that the trustees of the scheme are operating the scheme in a manner which is not consistent with the social and labour law or the information requirements of that host Member State, or

( b) it otherwise comes to the attention of the Board that the arrangement between the undertaking and the individuals in respect of whom the undertaking makes or proposes to make contributions is no longer compatible with the scheme,

the Board may give a direction in writing to the trustees—

(i) to take or refrain from taking the steps specified in the direction, or

(ii) to cease taking further contributions from the undertaking.

(3) Where the Board gives a direction to the trustees of a scheme under subsection (2), the Board may, if it is satisfied that the direction has not been complied with, apply to the Court and the Court may confirm, vary or set aside the direction on the terms and for the period the Court considers appropriate.

(4) Where the Board gives a direction under subsection (2), the trustees of the scheme may appeal to the Court from the direction within 21 days after the date of the direction and the Court may confirm, vary or set aside the direction on the terms and for the period that the Court considers appropriate.

(5) Where the trustees of a scheme receive contributions from an undertaking the Board may, in the form and manner that may be prescribed, require trustees of the scheme to take, or refrain from taking, any steps that may be prescribed for the purpose of ring-fencing some or all of the assets or liabilities (or both) of the scheme.

Functions of the Board in relation to institutions in another Member State.

153.—(1) Where an employer makes or proposes to make contributions to an institution for occupational retirement provision that has its main administration in another Member State, any function which Article 20 of the Directive requires or authorises to be exercised by the competent authorities of the State is exercisable by the Board.

(2) Where the Board receives a notification pursuant to Article 20(4) of the Directive from the competent authority in another Member State, the Board shall inform the competent authority of the relevant statutory requirements within 2 months after the date of that notification.

(3) Where there is a significant change in any relevant statutory requirements, the Board shall as soon as reasonably practicable inform any competent authority to which it has provided information under subsection (2) of that change.

(4) Where an employer makes contributions to an institution referred to in subsection (1) the Board shall—

( a) monitor compliance by the institution with the relevant statutory requirements, and

( b) if the Board becomes aware of any contravention by the institution of any relevant statutory requirement, inform the competent authority of the Member State concerned of the contravention.

(5) If the Board is satisfied that, despite the notification referred to in subsection (4)( b), the contravention persists, the Board may, after informing the competent authority of the Member State concerned, give a direction in writing to the employer—

( a) to take or refrain from taking the steps specified in the direction, or

( b) to cease making further contributions to the institution concerned.

(6) Where the Board gives a direction to an employer under subsection (5), the Board may, if it is satisfied that the direction has not been complied with, apply to the Court and the Court may confirm, vary or set aside the direction on the terms and for the period the Court considers appropriate.

(7) Where the Board gives a direction under subsection (5), the employer may appeal to the Court from the direction within 21 days after the date of the direction and the Court may confirm, vary or set aside the direction on the terms or for the period the Court considers appropriate.

Application of this Act to members in another Member State.

154.—(1) Regulations may provide that any provisions of this Act which are for the time being prescribed as relevant statutory requirements, shall not apply to schemes or trustees of schemes with regard to individuals in respect of whom an undertaking makes or proposes to make contributions to the scheme concerned.

(2) Save where otherwise provided for by this Act, references in this Act and regulations made under this Act—

( a) to members, shall be read as including references to individuals in respect of whom an undertaking makes or proposes to make contributions to a scheme,

( b) to a scheme or schemes, shall be read as including references to a scheme which provides or is capable of providing benefits to the individuals referred to in paragraph ( a) in another Member State, and

( c) to an employer, shall be read as including references to an undertaking with regard to any individuals in respect of whom an undertaking makes or proposes to make contributions to a scheme.”.