Council Directive 98/49/EC of 29 June 1998 on safeguarding the supplementary pension rights of employed and self-employed persons moving within the Community
Date: 1998-06-29
Institutions: Council of the European Union
Subjects: free movement of workers, pension scheme, self-employment, social security, transfer of pension rights, wage earner

L 209/46

EN

Official Journal of the European Communities

25. 7. 98

COUNCIL DIRECTIVE 98/49/EC

of 29 June 1998

on safeguarding the supplementary pension rights of employed and self-
employed persons moving within the Community

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European
Community, and in particular Articles 51 and 235
thereof,

Having regard to the proposal from the Commission (1),

Having regard to the opinion of the European Parlia-
ment (2),

Having regard to the opinion of the Economic and Social
Committee (3),

(1) Whereas one of the fundamental freedoms of the
Community is the free movement of persons;
whereas the Treaty provides that the Council shall,
acting unanimously, adopt such measures in the
field of social security as are necessary to provide
freedom of movement of workers;

(2) Whereas the social protection of workers is ensured
by statutory social security schemes complemented
by supplementary social security schemes;

their

(3) Whereas the legislation already adopted by the
Council with a view to protecting the social
security rights of workers moving within the
family,
Community and of members of
namely Council Regulations (EEC) No 1408/71 of
14 June 1971 on the application of social security
schemes to employed persons,
to self-employed
persons and to members of their families moving
within the Community (4) and (EEC) No 574/72 of
21 March 1972 laying down the procedure for
implementing Regulation (EEC) No 1408/71 on
the application of
to
social
employed persons, to self-employed persons and to
members of
families moving within the
Community (5), concern only statutory pension
schemes; whereas
the system of coordination
provided for in those Regulations does not extend
for
to supplementary pension schemes, except
schemes which are covered by the term ‘legislation'

security schemes

their

(1) OJ C 5, 9. 1. 1998, p. 4.
(2) OJ C 152, 18. 5. 1998.
(3) OJ C 157, 25. 5. 1998, p. 26.
(4) OJ L 149, 5. 7. 1971, p. 2. Regulation as last amended by
Regulation (EC) No 1223/98 (OJ L 168, 13. 6. 1998, p. 1).
(5) OJ L 74, 27. 3. 1972, p. 1. Regulation as last amended by
Regulation (EC) No 1223/98 (OJ L 168, 13. 6. 1998, p. 1).

as defined by the first subparagraph of Article 1(j)
of Regulation (EEC) No 1408/71 or in respect of
which a Member State makes a declaration under
that Article;

(4) Whereas

the Council has

a wide discretion
regarding the choice of the most appropriate meas-
ures for attaining the objective of Article 51 of the
Treaty; and whereas the system of coordination
provided for in Regulations (EEC) No 1408/71 and
(EEC) No 574/72, and in particular the rules of
aggregation, are not appropriate to supplementary
pension schemes, except for schemes which are
covered by the term ‘legislation' as defined by the
first subparagraph of Article 1(j) of Regulation
(EEC) No 1408/71 or
in respect of which a
that
Member State makes a declaration under
Article, and should therefore be subject to specific
measures, of which this Directive is the first, in
order to take account of their special nature and
characteristics and the diversity of such schemes
within and between Member States;

(5) Whereas no pension or benefit should be subject to
both the provisions of this Directive and those of
Regulations (EEC) No 1408/71 and (EEC) No 574/
72, and therefore any supplementary pension
scheme which comes within the scope of those
Regulations, because a Member State has made a
declaration to that effect under Article 1(j) of Regu-
lation (EEC) No 1408/71, cannot be subject to the
provisions of this Directive;

(6) Whereas in its Recommendation 92/442/EEC of
27 July 1992 on the convergence of social protec-
tion objectives and policies (6) the Council recom-
should ‘promote,
mended that Member States
where necessary,
conditions
changes
governing the acquisition of pension and, espe-
cially, supplementary pension rights with a view to
eliminating obstacles to the mobility of employed
workers';

the

to

(6) OJ L 245, 26. 8. 1992, p. 49.

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(7) Whereas a contribution to this objective can be
made if workers who move or whose place of
employment moves from one Member State to
another are guaranteed equal treatment as regards
supplementary pension
the protection of
rights with workers who remain or whose place of
employment changes but remains within the same
Member State;

their

(8) Whereas freedom of movement for persons, which
is one of the basic rights enshrined in the Treaty, is
not confined to employed persons but also extends
to self-employed persons;

(9) Whereas the Treaty does not provide powers other
than those of Article 235 to take appropriate meas-
ures within the field of social security for self-
employed persons;

(10) Whereas, in order to enable the right of free move-
ment to be exercised effectively, workers and others
holding entitlement should have certain guarantees
for equal treatment regarding the preservation of
their vested pension rights deriving from supple-
mentary pension schemes;

(11) Whereas the Member States should take the neces-
sary measures to ensure that benefits under supple-
mentary pension schemes are paid to members and
former members thereof as well as others holding
entitlement under such schemes in all Member
States, given that all restrictions on the free move-
ment of payments and capital are prohibited under
Article 73b of the Treaty;

(12) Whereas in order to facilitate the exercise of the
right
regulations
to free movement, national
should, where necessary, be adjusted in order to
enable contributions to continue to be made to a
supplementary pension scheme established in one
Member State by or on behalf of workers who are
posted to another Member State in accordance with
Title II of Regulation (EEC) No 1408/71;

(13) Whereas in this regard the Treaty requires not only
the abolition of any discrimination based on
nationality between workers of the Member States
but also the elimination of any national measure
likely to impede or render less attractive for those
workers the exercise of the fundamental freedoms
guaranteed by the Treaty as interpreted by the
Court of Justice of the European Communities in
successive judgments;

(14) Whereas workers exercising their

right

to free
movement
should be adequately informed by
employers, trustees or others responsible for the
management of supplementary pension schemes,
particularly with regard to the choices and alterna-
tives available to them;

(15) Whereas this Directive is without prejudice to the
laws of the Member States concerning collective
action to defend the interests of trades and profes-
sions;

(16) Whereas, by reason of the diversity of supplemen-
the Community
security schemes,
tary social
should lay down only a general
framework of
objectives and therefore a Directive is the appro-
priate legal instrument;

(17) Whereas,

in accordance with the principles of
subsidiarity and proportionality as set out in Article
3b of the Treaty, the objectives of this Directive
cannot be sufficiently achieved by the Member
States and can therefore be better achieved by the
Community; whereas this Directive does not go
beyond what is necessary to achieve those objec-
tives,

HAS ADOPTED THIS DIRECTIVE:

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
persons within the
employed
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.

self-employed

and

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 supplemen-
tary pension scheme established in conformity with

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national legislation and practice, invalidity and sur-
vivors’ benefits,
intended to supplement or replace
those provided in respect of the same contingencies
by statutory social security schemes;

‘supplementary pension scheme' means any occupa-
tional pension scheme established in conformity with
national legislation and practice such as a group insur-
ance contract or pay-as-you-go scheme agreed by one
funded scheme or
or more branches 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;

sectors,

‘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;

to
‘vested pension rights' means any entitlement
benefits obtained after fulfilment of the conditions
required by the rules of a supplementary pension
scheme and, where applicable, under national legisla-
tion;

‘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;

(b)

(c)

(d)

(e)

(f)

‘contribution' means any payment made or deemed to
have been made to a supplementary pension scheme.

CHAPTER III

MEASURES FOR SAFEGUARDING THE SUPPLE-
MENTARY 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 applic-
able, 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

of

shall

take measures

Member States
to ensure that
employers, trustees or others responsible for the manage-
ment
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.

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Article 10

1. Member States shall bring into force the laws, regula-
tions 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 accom-
panied by such reference at the time of their official
publication. The procedure for such reference shall be
adopted by Member States.

They shall
the national
inform the Commission of
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 provi-
sions of national
in the field
covered by this Directive.

law which they adopt

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

shall deal with the application of

The report
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.

Done at Luxembourg, 29 June 1998.

For the Council

The President

R. COOK