Legal provisions of COM(1997)486 - Safeguarding the supplementary pension rights of employed and self- employed persons moving within the EU

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dossier COM(1997)486 - Safeguarding the supplementary pension rights of employed and self- employed persons moving within the EU.
document COM(1997)486 EN
date June 29, 1998

Contents

CHAPTER I - OBJECTIVE AND SCOPE

Article 1

The aim of this Directive is to protect the rights of members of supplementary pension schemes who move from one Member State to another, thereby contributing to the removal of obstacles to the free movement of employed and self-employed persons within the Community. Such protection refers to pension rights under both voluntary and compulsory supplementary pension schemes, with the exception of schemes covered by Regulation (EEC) No 1408/71.

Article 2

This Directive shall apply to members of supplementary pension schemes and others holding entitlement under such schemes who have acquired or are in the process of acquiring rights in one or more Member States.

CHAPTER II - DEFINITIONS

Article 3

For the purpose of this Directive:

(a)‘supplementary pension’ means retirement pensions and, where provided for by the rules of a supplementary pension scheme established in conformity with national legislation and practice, invalidity and survivors' benefits, intended to supplement or replace those provided in respect of the same contingencies by statutory social security schemes;

(b)‘supplementary pension scheme’ means any occupational pension scheme established in conformity with national legislation and practice such as a group insurance contract or pay-as-you-go scheme agreed by one or more branches or sectors, funded scheme or pension promise backed by book reserves, or any collective or other comparable arrangement intended to provide a supplementary pension for employed or self-employed persons;

(c)‘pension rights’ means any benefits to which scheme members and others holding entitlement are entitled under the rules of a supplementary pension scheme and, where applicable, under national legislation;

(d)‘vested pension rights’ means any entitlement to benefits obtained after fulfilment of the conditions required by the rules of a supplementary pension scheme and, where applicable, under national legislation;

(e)‘posted worker’ means a person who is posted to work in another Member State and who under the terms of Title II of Regulation (EEC) No 1408/71 continues to be subject to the legislation of the Member State of origin, and ‘posting’ shall be construed accordingly;

(f)‘contribution’ means any payment made or deemed to have been made to a supplementary pension scheme.

CHAPTER III - MEASURES FOR SAFEGUARDING THE SUPPLEMENTARY PENSION RIGHTS OF WORKERS MOVING WIRHIN THE COMMUNITY

Article 4 - Equality of treatment as regards preservation of pension rights

Member States shall take the necessary measures to ensure the preservation of vested pension rights for membrs of a supplementary pension scheme in respect of whom contributions are no longer being made to that scheme as a consequence of their moving from one Member State to another, to the same extent as for members in respect of whom contributions are no longer being made but who remain within the same Member State. This Article shall also apply to other persons holding entitlement under the rules of the supplementary pension scheme in question.

Article 5 - Cross border payments

Member States shall ensure that, in respect of members of supplementary pension schemes, as well as others holding entitlement under such schemes, supplementary pension schemes make payment in other Member States, net of any taxes and transaction charges which may be applicable, of all benefits due under such schemes.

Article 6 - Contributions to supplementary pension schemes by and on behalf of posted workers

1. Member States shall adopt such measures as are necessary to enable contributions to continue to be made to a supplementary pension scheme established in a Member State by or on behalf of a posted worker who is a member of such a scheme during the period of his or her posting in another Member State.

2. Where, pursuant to paragraph 1, contributions continue to be made to a supplementary pension scheme in one Member State, the posted worker and, where applicable, his employer shall be exempted from any obligation to make contributions to a supplementary pension scheme in another Member State.

Article 7 - Information to scheme members

Member States shall take measures to ensure that employers, trustees or others responsible for the management of supplementary pension schemes provide adequate information to scheme members, when they move to another Member State, as to their pension rights and the choices which are available to them under the scheme. Such information shall at least correspond to information given to scheme members in respect of whom contributions cease to be made but who remain within the same Member State.

CHAPTER IV - FINAL PROVISIONS

Article 8

Member States may provide that the provisions of Article 6 shall apply only to postings that commence on or after 25 July 2001.

Article 9

Member States shall introduce into their national legal systems such measures as are necessary to enable all persons who consider themselves wronged by failure to apply the provisions of this Directive to pursue their claims by judicial process after possible recourse to other competent authorities.

Article 10

1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive not later than 36 months following the date of its entry into force, or shall ensure by that date at the latest that management and labour introduce the requisite provisions by way of agreement. Member States shall take all necessary steps to enable themselves at all times to guarantee the results imposed by this Directive. They shall immediately inform the Commission thereof.

When Member States adopt these provisions, these shall contain a reference to this Directive or shall be accompanied by such reference at the time of their official publication. The procedure for such reference shall be adopted by Member States.

They shall inform the Commission of the national authorities to be contacted regarding the application of this Directive.

2. Not later than 25 January 2002 Member States shall communicate to the Commission the text of the provisions of national law which they adopt in the field covered by this Directive.

3. On the basis of the information supplied by Member States, the Commission shall submit a report to the European Parliament, the Council and the Economic and Social Committee, within six years of the entry into force of this Directive.

The report shall deal with the application of this Directive and shall, where appropriate, propose any amendments that may prove necessary.

Article 11

This Directive shall enter into force on the day of its publication in the Official Journal of the European Communities.

Article 12

This Directive is addressed to the Member States.