The reactions of the members of the Pensions Forum, including those of the Member States and the social partners, have been incorporated into the impact assessment which accompanies this proposal.

Summary of responses and how they have been taken into account

It has not been necessary to call in outside expertise.

Even though this proposal is not formally written into the Commission’s working programme and need not therefore be the subject of an impact assessment, the Commission nonetheless feels that in the interests of better lawmaking and more transparency the different options in terms of measures which could be taken in this area and their impact in terms of costs and benefits should be examined.

Worker mobility both at national level and from one Member State to another is an essential factor in a smoothly-functioning European employment market and is an integral part of the ambition set out in the Lisbon strategy to strengthen employment and economic growth. There is therefore a need to improve not only this mobility from one Member State to another but also occupational mobility within any country. Certain of the rules governing supplementary pension schemes, particularly those relating to acquisition of pension rights, hamper this internal mobility. This stifles the development of companies from other Member States because of the problems of recruiting qualified personnel (this personnel being held back in their companies by the rules governing supplementary pension schemes). This Directive accordingly seeks to bring the laws of the Member States in this area closer together in order to improve the conditions of competition on the European employment market.

This proposal establishes common principles for improving the exercise of the right to freedom of movement, one of the fundamental freedoms of the European Union, and the operation of the internal market, principles which fit in with the adjustments of the supplementary pension schemes already under way in the Member States.

The proposed legal bases are Articles 42 and 94 of the EC Treaty. Article 42 was already used as the legal basis for Directive 1998/49/EC. Article 94 of the EC Treaty is appropriate in that a genuine improvement in the portability of supplementary pension rights cannot be achieved unless there is an improvement in occupational mobility in general, including within Member States. Furthermore, better general occupational mobility is essential to allow smooth operation of a common market using a flexible labour force unimpeded by the implementation of certain supplementary pension scheme rules, such as those whereby a worker sometimes has to stay with the same employer for a substantial period of time before acquiring rights.

The principle of subsidiarity applies in so far as the proposal does not affect an area covered by the exclusive competence of the Community.

The objectives of the proposal cannot be sufficiently be achieved by the Member States for the following reasons.

Employment markets do not end at the borders of the Member States, so a Community-level measure needs to be taken in order to make these markets more flexible and more effective by removing certain obstacles to the mobility of the labour force which stem from these occupational pension schemes.

The objectives of the proposal can be better achieved by Community action for the following reasons.

The current and future context of the development of European-scale pension systems makes it necessary to adopt a Community instrument today: on the one hand, the EU has since 2003 had a legal framework which favours the cross-border management of supplementary pension schemes; on the other, as shown in the recent study conducted by the Social Protection Committee in conjunction with the Commission on the future of occupational supplementary pension schemes, these schemes are set to grow significantly. The time has therefore come to provide a common reference framework.

The guidelines and recommendations formulated on several occasions over the past ten years by the European institutions have not brought about a significant approximation of the national laws; indeed, there is a risk that divergences could increase in a European Union of 25 countries.

The proposal complies with the principle of proportionality for the following reasons.

The choice of instrument and the practical aspects are in line with the principle of proportionality: the form opted for is that of a directive and not a regulation, this in order to respect the heterogeneous nature of the organisation of supplementary pension systems in the Member States, while establishing an overall framework setting out the objectives to be achieved by the Member States without prescribing how they are to be attained.

Lastly, the provisions proposed have been gauged according to the minimum essential requirements taking due account, thanks to the impact assessment, of the possible repercussions on existing national schemes; they also provide for a suitable time frame for transposing certain provisions contained in this Directive.

A more binding instrument, such as a regulation, would not offer the flexibility needed to take due account of the vast diversity of supplementary pension schemes and the fact that they are often voluntary.

A less binding instrument, such as a code of conduct, would have little chance of securing the desired result, as the discussions which have taken place for over 15 years at European level have failed to produce a voluntary initiative of this type. Furthermore, many elements on which the supplementary pension schemes are based are governed by the laws of the Member States.

Other means would not be appropriate for the following reasons.

The Member States are required to communicate to the Commission the text of national provisions transposing the Directive as well as a correlation table between those provisions and this Directive.

This draft instrument has to do with an area covered by the EEA Agreement and must therefore be extended to the European Economic Area.