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

[F1 Cross-border transfers: requirements for receiving schemes N.I.

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 from 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 Article 263 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 VII of the Order.

(3) The Regulator may only authorise a cross-border transfer where the competent authority of the EEA state in which 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) of 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 in which 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 in which 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 in which 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 Article 88 (the Regulator’s procedure in relation to its regulatory functions).]

Textual Amendments

F1 Regs. 20, 21 added (13.1.2019) by The Occupational Pension Schemes (Cross-border Activities) (Amendment) Regulations (Northern Ireland) 2018 (S.R. 2018/182), regs. 1(1), 3(7)