Amended proposal for a Directive of the European Parliament and of the Council on minimum requirements for enhancing worker mobility by improving the acquisition and preservation of supplementary pension rights (presented by the Commission pursuant to Article 250 (2) of the EC Treaty)
Date: 2007-10-09
Institutions: European Commission
Subjects: labour mobility, pension scheme, social security, supplementary pension

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COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 9.10.2007 
COM(2007) 603 final 

2005/0214 (COD) 

Amended pProposal for a 

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

on minimum requirements for enhancing worker mobility by improving the acquisition 
and preservation of supplementary pension rights 

(presented by the Commission pursuant to Article 250 (2) of the EC Treaty) 

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EXPLANATORY MEMORANDUM 

The  Commission  presents  an  amended  proposal  for  a  Directive  of  the  European 
Parliament and of the Council on improving the portability of supplementary pension 
rights.  Incorporated  within  the  amended  proposal  are  amendments  proposed  by  the 
European Parliament at its first reading which are acceptable to the Commission, along 
with  technical  improvements  that  are  the  product  of  discussions  with  experts  within 
Council working groups. In addition, the Commission takes full account of the request 
by the European Council for an amended proposal based on enhancing worker mobility 
by improving the vesting and preservation of supplementary pension rights. 

1)  BACKGROUND 

  On  20  October  2005,  the  Commission  adopted  a  proposal  for  a  Directive  of  the 
European Parliament and of the Council on improving the portability of supplementary 
pension  rights.  This  proposal  was  forwarded  to  the  European  Parliament  and  the 
Council on 21 October 2005. 

The European Economic and Social Committee gave its opinion on 20 April 2007 and 
proposed amendments to the Commission proposal. 

The European Parliament adopted a legislative resolution at its first reading on 20 June 
2007. 

2)  OBJECTIVE OF THE COMMISSION'S PROPOSAL 

The  social  protection  systems  in  the  different  Member  States  have  to  address  the 
problem  of  demographic  ageing.  The  reforms  adopted  or  envisaged  in  most  Member 
States are moving towards the further development of supplementary pension schemes, 
something which is actively encouraged by many Member States. 

It is thus urgent to ensure that the rules governing the operation of these schemes do 
not  hamper  the  freedom  of  movement  of  workers  across  Member  States  or  mobility 
within  any Member  State,  therefore reducing  the  opportunities  for  mobile  workers  to 
build up sufficient pension rights by the end of their careers. Failure to achieve this will 
reduce  the  flexibility  and  effectiveness  of  the  labour  market.  Even  if  there  are  many 
factors  which  can  determine  the  choice  of  any  individual  to  be  more  mobile,  the 
possibility  of  losing  supplementary  pension  rights  may  make  an  individual  think 
seriously about changing jobs. 

This  amended  proposal  therefore  directly  addresses  the  issue  of  reducing  those 
obstacles  found  within  some  supplementary  pension  schemes  in  order  to  facilitate 
worker mobility. The potential barriers to worker mobility relate to, in particular, the 
conditions  under  which  an  individual  acquires  pension  rights;  and  the  conditions  in 
which  those  rights  are  treated  once  an  individual  has  changed  jobs.  Furthermore  the 
amended  proposal  addresses  the  issue  of  a  workers  right  to  information  on  how 
mobility  will  affect  the  acquisition  and  preservation  of  their  supplementary  pension 
rights. 

3)  COMMISSION  OPINION  ON  THE  AMENDMENTS  ADOPTED  BY  THE  EUROPEAN 

PARLIAMENT 

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On 20 June 2007, the European Parliament adopted 34 amendments on the proposal for 
a  Directive  to  improve  the  portability  of  supplementary  pension  rights.  The 
Commission  considers  that  a  majority  of  the  European  Parliament's  amendments  are 
acceptable  in  full,  in  principle,  or  in  part,  as  they  maintain  the  aims  and  political 
viability  of  the  proposal  and  in  many  cases  enhance  the  original  drafting.  A  main 
feature of the European Parliament's amendments is to shift the focus of the Directive 
onto the acquisition and preservation of dormant rights and away from provisions for 
transfers.  The  European  Parliament  considers  that  the  introduction  of  a  compulsory 
transfer  option  at  this  time  would  place  too  great  a  burden  on  some  supplementary 
pension  schemes  and  would,  furthermore,  cause  considerable  technical  difficulties. 
Having  taken  careful  note  of  the  European  Parliament's  decision  and  the  views 
the  Commission 
expressed  by  experts  within 
acknowledges  this  change  of  priorities  and  accepts  the  removal  of  article  6  (transfer 
provisions). Accordingly the Commission proposes to amend the title of the Directive, 
accepting in part the language used by the European Council in their reference to the 
draft Directive in June  2007. The amended proposal is now entitled: "Proposal for a 
directive  on  the  minimum  requirements  for  enhancing  worker  mobility  by  improving 
the acquisition and preservation of supplementary pension rights". 

the  Council  working  group, 

The Commission therefore accepts in full or in part, the following amendments of the 
European Parliament:  

3.1 Scope of application and other general provisions (Articles 1-3) 

transfers.  The  amendment  also  replaces 

Objective:  Amendments  1  and  18  relate  to  the  objective  of  the  Directive  with 
amendment  1  deleting  reference  to  the  word  portability  in  recital  5,  reflecting  the 
term 
removal  of  article  6  on 
'harmonisation' with 'minimum requirements' in line with changes to articles 4 and 5. 
The  Commission  accepts  this  amendment  in  full.  Amendment  18  replaces  the  term 
‘workers’  with  ‘persons’  in  article  1  and  expands  the  objective  of  the  Directive.  The 
Commission  cannot  accept  this  amendment  on  the  grounds  that  the  Directive  is 
concerned with removing obstacles within supplementary pension schemes that impact 
on  workers'  freedom  of  movement  or  mobility.  The  Community  does  not  have  the 
power to require Member States to undertake 'the early development of supplementary 
pension  schemes'.  The  Commission  has  taken  into  account  technical  modifications 
discussed in Council and accordingly made minor drafting amendments to Article 1. 

the 

Amendment  2  proposes  a  new  recital  highlighting  the  importance  of  ensuring  the 
sustainability of supplementary pension provision is not undermined by this Directive 
and  that  the  protection  of  the  rights  of  remaining  workers  and  scheme  pensioners  is 
considered in full. It also highlights the important role that social partners play in the 
design and implementation of supplementary pension schemes. The Commission fully 
accepts  this  amendment  (now  seen  as  5a).  Amendment  3  introduces  a  new  recital 
(now  seen  as  5b)  emphasising  that  the  Directive  does  not  require  the  introduction  of 
legislation  to  establish  supplementary  pension  schemes  where  none  exist  previously. 
The Commission accepts this amendment in principle and clarifies the text - based in 
part  on  technical  work  by  experts  in  Council  working  groups  -  that  Member  States, 
whilst  obliged  to  transpose  the  provisions  of  this  Directive  into  national  law,  retain 
responsibility for organising their own pension systems. 

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Scope. Amendment 5 is a new recital (now seen as 5c) clarifying the Directive's scope 
which  the  Commission  accepts  in  full.  Amendments  6,  7,  8  and  19  should  be 
considered together for  their  modifications of article 2 and  its corresponding  recitals. 
Amendment 6 introduces a new recital (now seen as 5d) which clarifies the exemption 
from the application of the Directive of those schemes that are closed to new members. 
The Commission accepts that this restriction is a compromise and can be considered a 
proportionate  measure  to  ensure  the  ongoing  sustainability  of  some  supplementary 
pension  schemes.  The  Commission  therefore  accepts  the  amendment  in  full  with  the 
addition  of  a  technical  clarification  relating  to  'sub-sections'  of  closed  schemes  to 
ensure that where applicable, only those parts of supplementary schemes closed to new 
members  will  be  exempt.  Amendment  7  is  a  technical  clarification  and  introduces  a 
new  recital  (now  seen  as  5e)  making  it  clear  that  the  Directive  has  no  impact  on 
reorganisation  or  winding-up  measures  which  the  Commission  accepts  in  part, 
rejecting the reference to article 16(2) 2003/41/EC, which is irrelevant for the purposes 
of  the  clarification.  Amendment  19  concerns  article  2  as  a  whole  and  is  accepted  in 
principle, subject to technical clarifications developed with experts in Council working 
groups.  Amendment  8  introduces  a  new  recital  (now  seen  as  5f)  clarifying  that  the 
Directive will not apply to insolvency protection systems, compensation arrangement 
schemes or national reserve funds and the Commission accepts this amendment in full. 

Definitions.  Amendment  20  consists  of  technical  changes  to  the  definition  of  terms 
within Article 3. The Commission accepts the changes to article 3(a) in full, as well as 
the incorporation of a new definition 3(da), dealing with the term ‘vesting period’. The 
amendment  to  3(b)  is  accepted,  other  than  the  proposed  deletion  of  the  word 
'occupational'  which  the  Commission  considers  would  reduce  the  clarity  of  the 
definition. The amendment to 3(c) is accepted in part with drafting changes to describe 
more clearly that the conditions an 'active scheme member' may need to fulfil, are those 
acquisition  conditions  set  out  in  article  4.  The  amendment  to  article  3(d)  is  accepted 
with  minor  drafting  changes.  The  amendment  to  article  3(f)  is  accepted  in  principle, 
whilst utilising language developed by experts in Council working groups. The change 
to article 3(h) replacing the term ‘deferred beneficiary’ with the term ‘inactive scheme 
member’  is  not  accepted,  as  the  Commission  considers  the  original  term  was 
technically  clearer.  The  Commission  does  however  accept  the  remaining  technical 
changes  within  3(h)  in  principle,  whilst  using  language  developed  in  part  through 
Council work. The changes to article 3(i) are accepted, with the exception of the term 
‘inactive scheme member’. The change to article 3(j) involves the introduction of a new 
concept,  ‘value  of  dormant  entitlement’  and  the  deletion  of  the  term  'transfer'.  The 
Commission accepts the rationale for this new definition but considers the term ‘value 
of dormant rights’ as more accurate and drafts accordingly. Articles 3(e) and 3(g) are 
deleted  by  the  Commission  to  reflect  the  restructuring  and  modification  of  the 
Directive as a whole, these definitions are therefore no longer required. 

Amendment 4 introduces a new recital (now seen as 5g) that clarifies the definition of 
'supplementary  pension  schemes'  further.  The  Commission  accepts  the  new  recital  in 
principle  whilst  drawing  on  the  work  of  experts  in  Council  to  improve  the  technical 
drafting.  The  Commission  also  simplifies  the  description  of  conditions  where 
individual  pension  arrangements  should  be  considered  as  supplementary  schemes  for 
the  purposes  of  this  Directive.  The  Commission  recognises  that  the  taxonomy  of 
pension systems, in particular with regards to individual pension arrangements, is not 
always  clear-cut.  Therefore  the  recital  clarifies  that  individual  pension  arrangements 

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concluded  through  an  employment  relationship  should  be  considered  as  within  the 
scope of this Directive. In addition, the Commission has introduced a new recital (5h) 
in  order  to  clarify  that  special,  small  payments,  made  at  the  end  of  a  career  and 
financed  solely  by  an  employer  are  not  considered  supplementary  pensions  for  the 
purposes of this Directive. 

3.2 Conditions governing acquisition (Article 4) 

Amendment  22  develops  the  Commission’s  original  proposal  for  the  acquisition  of 
pension rights. The approach Parliament has taken to introducing minimum acquisition 
requirements  strikes  a  different  balance  from  that  of  the  Commission  whilst 
maintaining  the  principle  of  reducing  obstacles  to  mobility  found  within  some 
supplementary  pension  schemes.  The  central  aspect  of  the  amendment  proposes  the 
removal of any reference to minimum ages for vesting as found in article 4(b), to be 
replaced  with  a  new  formulation  that  intrinsically  links  the  concept  of  a  maximum 
permitted  vesting  period  and  the  age  of  the  active  scheme  member.  The  amendment, 
therefore, proposes a maximum vesting period of 5 years (where stipulated) for active 
scheme members under the age of 25 and the exclusion of any vesting conditions for 
those over the age of 25. 

The Commission recognises that the intent of this amendment is to acknowledge that in 
general, younger workers have greater mobility than those over the age of 25 and that 
the accrual of pension rights for those under the age of 25 may be less urgent than for 
those above this age. The Commission therefore accepts the proposal to allow, where 
applicable, a vesting period that does not exceed five years for those under the age of 
25 as a compromise measure. With regards to the prohibition of any vesting conditions 
for  the  over  25s,  the  Commission,  whilst  supporting  the  principle  of  workers'  rights 
vesting  at the  earliest  opportunity,  accepts that some supplementary pension schemes 
may face significant administrative and technical difficulties if a short vesting period is 
not permitted. This is particularly the case for schemes where national legislation does 
not allow for a mandatory period of employment before joining a pension scheme. As 
such,  the  Commission  is  unable  to  accept  the  proposition  to  eliminate  vesting 
conditions  beyond  the  age  of  25  and  instead  proposes  that  where  vesting  periods  are 
present,  these  may  not  exceed  one  year.  This  remains  a  proportionate  approach  that 
reduces  obstacles  to mobility, whilst remaining  mindful  of  placing undue burdens on 
supplementary pension schemes. The Commission has therefore redrafted Article 4(c) 
on this basis whilst clarifying that a vesting period of one year always applies once an 
active  scheme  member  reaches  25  years  of  age,  regardless  of  the  age  at  which  they 
began accruing rights.  

The  European  Parliament's  restructuring  of  article  4  to  combine  the  concept  of  ages 
and  maximum  vesting  periods  leaves  an  element  of  uncertainty  as  to  whether  a 
minimum  vesting  age  can  still  be  applied  for  those  under  the  age  of  25.  With  the 
Commission's further revision of this proposal to allow for a maximum vesting period 
of  1  year  (for  those  over  25)  this  uncertainty  is  amplified.  Therefore,  for  clarity,  the 
Commission rejects the deletion of article 4(b) which states: 'where a minimum age is 
stipulated  for  the  acquisition  of  pension  rights,  this  is  not  more  than  21  years',  and 
instead  makes  minor  drafting  amendments.  In  addition  the  Commission  makes 
technical amendments to the original article 4(c) and moves it to 4(a) to improve the 
overall structure and consistency of article 4. Amendment 43 redrafts and expands the 
original  article  4(a)  (now  seen  as  4(d))  and  further  clarifies  how  contributions  made 

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before  vesting  occurs  are  dealt  with.  The  Commission  accepts  these  changes  in  full, 
subject to  minor drafting  amendments. The Commission also accepts in principle the 
corresponding  new  recital  introduced  by  amendment  11.  This  is  redrafted  as  recital 
6(a) following expert comment in Council working groups clarifying further the means 
in which non-vested rights and outgoing workers are dealt with. 

Amendment 24 outlines the role that social partners - through collective agreements - 
can play when introducing the provisions of articles 4(a-d). The Commission accepts 
these  proposals  in  principle  and  introduces  them  as  new  article  4(e)  with  drafting 
changes discussed in Council which offer greater legal clarity. 

Amendment  9  concerns  a  general  recital  for  the  whole  of  article  4  which  in  part 
replaces  the  original  recital  6  removed  by  amendment  10.  It  states  that  due  to  the 
increased importance of supplementary pension provision to incomes in retirement, the 
acquisition,  preservation  and  transfer  of  pension  rights  should  be  improved.  The 
Commission  accepts  the  amendment  in  full  as  recital  5i  whilst  making  additional 
reference to reducing obstacles to freedom of movement and occupational mobility to 
ensure  consistency  with  the  Directive's  objective.  As  an  additional  technical 
clarification  the  Commission  introduces  a  new recital  5j  to  avoid  confusion  as  to  the 
meaning  of  the  term  'vesting  requirement',  which  in  some  Member  States  can  be 
interpreted as relating to the purchase of an annuity. 

3.3 Preservation of dormant rights and transfers (Articles 5 and 6) 

Preservation  of  dormant  rights.  Amendment  12  introduces  a  new  recital  (6b) 
emphasising  the  right  of  outgoing  workers  to  leave  their  vested  pension  rights  as 
dormant  rights  in  the  scheme  in  which  they  vested.  The  Commission  accepts  this 
amendment  in  principle,  with  additional  drafting  reflecting  work  within  Council,  in 
particular relating to certain situations where highly mobile workers, particularly in the 
context of defined contribution pension schemes, may have their rights discharged to 
another supplementary pension scheme that fulfils the provisions laid down in article 
5.1. 

Amendment  13  recasts  recital  7  in  line  with  the  general  principle  of  clarifying  how 
dormant  rights  should  be  calculated  and  preserved,  whilst  emphasising  the  need  to 
consider the particular nature of the scheme and the rights of scheme members who are 
not outgoing workers. The Commission accepts the amendment in principle and draws 
on  technical  work  from  experts  in  Council  working  groups  in  its  redrafting.  The  text 
now  refers  to  'national  law  and  practise'  for  the  calculation  of  pension  right  values, 
rather  than  'actuarial  standards'  to  avoid  confusion  with  the  cross-border  provisions 
within  Directive  2003/41/EC1.  Utilising  further  work  undertaken  by  experts  during 
Council  working  groups,  the  text  also  contains  reference  to  justified  administrative 
costs that may be taken into account in the event of dormant rights being adjusted. The 
Commission considers this to be a proportionate and necessary addition.  

Amendment 14 clarifies recital 8 with regards to the discharging of small amounts of 
vested pension rights of outgoing workers. The Commission accepts this amendment in 
principle  and  adds  clarifications  concerning  the  concept  of  calculating  capital 

1 Directive 2003/41/EC on the activities and supervision of institutions for occupational retirement provision. 

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payments. 

Amendment 25 reforms article 5 by the introduction of a new article 5.-1 permitting 
outgoing workers - subject to the conditions set out in 5.2 and 5.3 – the right to leave 
their  dormant  rights  within  the  scheme  where  they  vested.  The  Commission  accepts 
this  amendment  in  principle  with  drafting  changes  reflecting  in  part  technical 
discussions  in  Council.  To  ensure  clarity  of  intent  the  Commission  also  incorporates 
text to clarify that where applicable, the value of newly formed dormant pension rights 
should be calculated at the moment a worker leaves a scheme. This value acts as the 
reference  point  for  the  future  treatment  of  dormant  rights  as  set  out  in  article  5.1. 
Amendment  25  also  adds  considerable  detail  to  article  5.1  and  in  particular  contains 
explicit reference to ways in which 'fair adjustment' (described as 'fair treatment' in the 
amendment) should be considered fair. In part this involves incorporating text from the 
original  recital  7.  The  amendment  also  proposes  that  dormant  rights  should  be 
protected  in  the  event  of  insolvency  of  the  sponsoring  employer.  The  Commission 
cannot  accept  the  introduction  of  insolvency  protection  within  this  Directive  as  it  is 
already subject to European legislation through the provisions of Article 8 of Council 
Directive 80/987/EEC2. The other changes the Commission accepts in principle whilst 
making  use  of  technical  language  developed  within  Council  working  groups.  The 
Commission however, whilst accepting the principle of providing more detail in article 
5.1, considers that the structure of the proposed amendment does not fully achieve its 
aim  of  defining  'fair  treatment'  in  a  more  explicit  manner.  Therefore,  the  amended 
proposal recasts and clarifies article 5.1 by placing two common and specific methods 
of  treating  dormant  rights  (development  in  line  with  the  rights  of  active  scheme 
members  and  development  in  line  with  pension  benefits  currently  in  payment) 
alongside  the  concept  of  fair  treatment  at  the  head  of  the  article.  Other  methods  that 
can  be  considered  fair  treatment  are  then  listed  as  proposed  by  amendment  25.  For 
additional  clarity  to  complement  these  changes  the  Commission  introduces  a  new 
recital (7a), stating that the Directive does not create any obligation to establish more 
favourable conditions for dormant rights than for the rights of active scheme members.  

The Commission also introduces – following expert advice from the Council working 
group  –  extra  clarification  to  article  5.1(c)  permitting  Member  States  to  set 
proportionate  limits  when  dormant  rights  are  adjusted  in  line  with  price  or  wage 
inflation. The Commission considers this a reasonable compromise to protect the long 
term  sustainability  of  supplementary  pension  provision.  As  a  consequence  of  these 
changes the implementation provision found at article 9.5 is redundant and accordingly 
deleted. 

Amendment  25  also  proposes  drafting  changes  to  article  5.2  with  regards  to  how 
pension  schemes  can  discharge  liabilities  as  a  capital  sum  when  accrued  rights  are 
below  a  specific  threshold  set  by  national  legislation.  The  Commission  accepts  these 
changes  in  full,  subject  to  minor  drafting  changes.  The  Commission  also  accepts  in 
principle  the  introduction  of  article  5.3  which  makes  explicit  the  role  social  partners 
may play when introducing the provisions of article 5 through collective agreements. 

Transfers. Amendments 15, 16 and 17 reflect the changes to article 5 and the removal 

2 Council Directive 80/987/EEC on the approximation of the laws of the Member States relating to the protection 

of employees in the event of the insolvency of their employer as amended by Directive 2002/74/EC 

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of  article  6,  whilst  emphasising  that  the  Directive  does  not  aim  to  discourage  the 
transfer of pension rights. The recitals recommend that Member States should seek to 
improve  conditions  of 
transfer  wherever  possible.  The  Commission  accepts 
amendments  15  and  17  which  delete  recitals  9  and  10  and  the  Commission  also 
accepts, with drafting changes, amendment 16 (now seen as new recital 9a) stating that 
transfers should be particularly encouraged in new supplementary pension schemes. 

Amendment 26 proposes the deletion of article 6 on the transfer of pension rights. The 
Commission fully accepts this amendment whilst regretting that provisions specifying 
how the transfer of pension rights should be undertaken do not feature in the amended 
proposal.  The  Commission  recognises  that  at  this  point  in  time,  due  to  the  technical 
difficulties involved in agreeing general provisions for transfers and concerns over the 
impact on the financial sustainability of some supplementary pension schemes, Article 
6 should be removed. 

3.4 Information and non-regression (Articles 6 and 7) 

Information. Amendment 27 refers to the provision of information to workers, active 
scheme  members  and  outgoing  workers  in  article  7.1  (now  seen  as  6.1).  The 
amendment proposes that active scheme members have the right to request information 
pertaining to their supplementary pension rights in the event of their employment being 
terminated. The Commission accepts this part of the amendment in full. The changes to 
article 7.2 and 7.3 (now seen as 6.2 and 6.3) are accepted in full or in principle whilst 
utilising  some  technical  text  developed  through  work  in  Council.  The  proposal  to 
remove 7.4, describing the method of information provision, and place it within 7.2 is 
not  accepted  as  the  Commission  considers  the  original  structure  of  the  article  to  be 
clearer.  The  text  in  7.4  (now  seen  as  6.4)  is  however  developed  reflecting  technical 
discussions with experts in Council. As a consequence of these changes additional text 
allowing  for  an  administrative  safeguard  is  introduced  by  the  Commission  within 
recital 11, to make clear that there is no obligation to provide information more often 
than once a year. 

Non-regression. Amendment 28 clarifies the non-regression article, by replacing the 
term 'portability' with 'establishment and preservation of pension rights' reflecting the 
removal of transfer provisions from the Directive. The amendment is accepted in full 
other than the reference to outgoing workers in the final line of the article, which is not 
deemed necessary. The Commission has in addition clarified the effect of the article to 
make clear that preservation affects outgoing workers, whereas the acquisition of rights 
concerns workers more generally. 

3.5 Implementation and reporting (Articles 8 and 9) 

Implementation.  Amendments  29  and  42  propose  that  Member  States,  when 
implementing the Directive, may be granted an extension of 60 months with regards to 
implementing both articles 4 and 5. The Commission accepts this proposal as well as 
the  minor  drafting  changes  as  proportionate  to  balancing  the  elements  of  reducing 
obstacles  to  freedom  of  movement  and  mobility  and  ensuring  the  ongoing 
sustainability of supplementary pension provision. The Commission has also amended 
the  date  of  implementation  to  reflect  the  current  situation.  Amendment  30  deletes 
article 9.3 which the Commission accepts as the provision is now obsolete due to the 

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removal of transfer provisions. 

the 

implementation  of 

Reporting. Amendment 31 specifies that one element of the 5 yearly reports set out in 
article  10  (now  article  9)  should  assess  the  'willingness  of  employers'  to  offer 
this  Directive.  The 
supplementary  pensions  following 
Commission accepts this amendment in principle, but proposes to place this feature of 
reporting within a new recital, (15a). The Commission also makes technical language 
changes and inserts reference to 'development of supplementary provision' rather than 
'willingness'.  The  Commission  considers  willingness  to  be  a  difficult  concept  to 
quantify. Amendment 32 proposes a new clause to article 10 (now seen as article 9) 
requiring  the  first  report  to  assess  how  an  employer's  liability  for  supplementary 
pension  rights  is  affected  following  a  transfer  of  pension  rights.  The  Commission 
accepts this extra element in principle and for clarity of drafting also includes it within 
recital  (15a).  Amendments  52  and  33  propose  the  deletion  of  article  10.2  to  be 
replaced  with  a  new  paragraph  (article  10.2  (a)).  The  new  paragraph  requires  the 
Commission  to  review  in  particular  the  conditions  for  the  transfer  of  pension  rights 
within  5  years  of  the  adoption  of  the  Directive.  On  the  basis  of  this  report  the 
Commission should bring forward any necessary proposals to further reduce obstacles 
to mobility. The Commission accepts both of these amendments and for drafting clarity 
has  amended  article  10.2  (now  9.2)  accordingly.  The  Commission  has  also  added 
additional  text  to  clarify  that  any  proposals  to  amend  the  Directive  will  only  be 
forthcoming if the situation at the time necessitates further legislation. 

CONCLUSION 

Having regard to article 250 (2) of the EC treaty, the Commission modifies its proposal 
as follows: 

EN 

9 

   EN 

 
 
2005/0214 (COD) 

Amended pProposal for a 

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

on improving the portability of supplementary pension rights minimum requirements 
for enhancing worker mobility by improving the acquisition and preservation of 
supplementary pension rights 

(Text with EEA relevance) 

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, 

Having regard to the Treaty establishing the European Community, and in particular Articles 
42 and 94 thereof, 

Having regard to the proposal from the Commission3, 

Having regard to the opinion of the European Economic and Social Committee4, 

Acting in accordance with the procedure laid down in Article 251 of the Treaty5, 

Whereas: 

(1) 

(2) 

(3) 

3 
4 
5 
6 

The free movement of persons is one of the fundamental freedoms of the Community; 
in  Article  42,  the  Treaty  stipulates  that  the  Council,  acting  in  accordance  with  the 
procedure  referred  to  in  Article  251,  shall  adopt  such  measures  in  the  field  of  social 
security as are necessary to provide freedom of movement for workers. 

The  social  protection  of  workers  with  regard  to  pensions  is  guaranteed  by  statutory 
social security schemes, together with supplementary social security pension schemes 
linked  to  the  employment  contract,  which  are  becoming  increasingly  common  in  the 
Member States. 

The Council has wide powers of discretion regarding the choice of measures which are 
the  most  appropriate  when  it  comes  to  achieving  the  objective  of  Article  42  of  the 
Treaty;  the  system  of  coordination  provided  for  in  Council  Regulation  (EEC)  No 
1408/71  of  14  June  1971  on  the  application  of  social  security  schemes  to  employed 
persons  and  their  families  moving  within  the  Community6  and  Council  Regulation 

OJ C […], […], p. […]. 

OJ C […], […], p. […]. 

OJ C […], […], p. […]. 

OJ L 149 of 5.7.1971, p. 1. Regulation as last amended by Regulation (EC) No 631/2004 (OJ L 100 of 
6.4.2004, p. 1). 

EN 

10 

   EN 

 
 
                                                 
(EEC) No 574/72 of 21 March 1972 fixing the procedure for implementing Regulation 
(EEC) No 1408/717 and, in particular, the rules applicable to aggregation do not relate 
to  supplementary  pension  schemes,  except  for  schemes  covered  by  the  term 
“legislation”, as defined in the first paragraph of Article 1(j) of Regulation (EEC) No 
1408/71, or which have been the subject of a declaration to this effect by a Member 
State pursuant to this Article. Supplementary pension schemes should therefore be the 
subject  of  specific  measures  in  order  to  take  account  of  their  nature  and  specific 
characteristics  and  of  the  diverse  nature  of  these  schemes  within  the  Member  States 
and from one Member State to another, and in particular the role played by the social 
partners in their implementation.  

Council  Directive  98/49/EC  of  29  June  1998  on  safeguarding  the  supplementary 
pension rights of employed and self-employed persons moving within the Community8 
represents an initial specific measure designed to improve the exercise of the right of 
workers to freedom of movement as regards supplementary pension schemes. 

Recourse  should  also  be  had  made  to  Article  94  of  the  Treaty,  given  that  the 
disparities between the national legislation governing supplementary pension schemes 
are likely to hamper both the exercise of the right of workers to freedom of movement 
and the operation of the internal market. Thus, in order to improve the portability of 
the  supplementary  pension  rights  of  workers  moving  within  the  Community  and 
within  the  same  Member  State,  provision  should  be  made  for  certain  conditions 
governing  the  acquisition  of  minimum  requirements  for  the  establishment  of 
pension  rights  and  preservation  of  the  vested  pension  rights  must  be  harmonised 
and the rules on the preservation of dormant rights and the transfer of acquired rights 
must  be  brought  closer  together  of  outgoing  workers  in  a  supplementary  pension 
scheme linked to an employment relationship. 

(4) 

(5) 

(5a)  Moreover,  account  should  be  taken  of  the  characteristics  and  special  nature  of 
supplementary  pension  schemes  and  the  way  they  differ  within  and  among  the 
Member  States.  The  introduction  of  new  schemes,  the  sustainability  of  existing 
schemes  and  the  expectations  and  rights  of  current  pension  scheme  members 
should  be  adequately  protected.  This  Directive  should  also  take  particular 
account  of  the  role  of  the  social  partners  in  designing  and  implementing 
supplementary pension schemes. 

(5b)  This Directive does not call into question the right of Member States to organise 
their  own  pension  systems.  Member  States  retain  full  responsibility  for  the 
organisation  of  such  systems  and  when  transposing  this  Directive  into  national 
law  are  not  obliged  to  introduce  legislation  providing  for  the  setting  up  of 
supplementary pension schemes. 

(5c)  This Directive should apply to all supplementary pension schemes established in 
conformity  with  national  legislation  and  practise,  that  offer  supplementary 
pensions for workers, such as group insurance contracts, pay-as-you-go schemes 

7 

8 

OJ L 74 of 27.3.1972, p. 1. Regulation as last amended by Regulation (EC) No 77/2005 (OJ L 16 of 
20.1.2005, p. 3) due to be repealed by Regulation (EC) 883/04 coming into force 
OJ L 209 of 25.7.1998, p. 46. 

EN 

11 

   EN 

 
                                                 
agreed by one or more branches or sectors, funded schemes or pension promises 
backed by book reserves, or any collective or other comparable arrangement. 

(5d)  This  Directive  should  not  apply  to  supplementary  pension  schemes  or,  where 
applicable, sub-sections of such schemes, that have been closed to the effect that 
no  new  members  can  be  accepted  because  the  introduction  of  new  rules  could 
place an unjustifiable burden on such schemes. 

(5e)  This Directive does not aim to harmonise or affect national law on reorganisation 
measures  and  winding-up  proceedings;  it  is  irrelevant  whether  any  proceedings 
are opened because of insolvency, or whether they are entered into voluntarily or 
compulsorily.  Similarly,  this  Directive  does  not  affect  national  legislation  on 
reorganisation measures under Directive 2001/17/EC9.  

(5f)  This  Directive  should  not  affect  any  arrangements  for  insolvency  protection  or 
compensation  arrangements  which  are  not  part  of  a  supplementary  pension 
scheme  linked  to  an  employment  relationship  and  which  aim  to  protect  the 
pension  rights  of  workers  in  the  event  of  insolvency  of  the  undertaking  or  the 
pension  scheme.  Similarly,  this  Directive  should  not  affect  national  pension 
reserve funds. 

(5g)  This Directive applies only to supplementary pension schemes existing due to an 
employment  relationship  that  are  based  on  reaching  retirement  age  or  on 
fulfilling  other  requirements,  as  laid  down  by  the  scheme  or  by  national 
legislation.  This  Directive  does  not  apply  to  individual  pension  arrangements, 
other  than  those  concluded  through  an  employment  relationship.  Nor  does  this 
Directive apply to invalidity and survivors benefits. 

(5h)  A  one-off  payment  which  is  not  considered  substantial  income,  is  not  related  to 
contributions made for the purpose of purchasing an annuity, is paid directly or 
indirectly  at  the  end of a  career, and is financed solely by  the employer, should 
not  be  considered  to  be  a  supplementary  pension  within  the  meaning  of  this 
Directive. 

(5i) 

Since supplementary retirement provision is becoming increasingly important in 
many  Member  States  for  securing  people's  standard  of  living  in  old  age,  the 
conditions  for  acquiring,  preserving  and  transferring  acquired  rights  should  be 
improved  in  order  to  reduce  obstacles  to  workers  freedom  of  movement  and 
occupational mobility within the EU.  

(5j)  Vesting requirements should not be likened to other conditions laid down for the 
acquisition of a right to an annuity made with regards to the payout phase under 
national  law  or  under  the  rules  of  certain  supplementary  pension  schemes 
(particularly defined contribution schemes). 

(6) 

9 

In  order  to  ensure  that  the  conditions  for  acquiring  supplementary  pension  rights  do 
not undermine the exercise of the right of workers to freedom of movement within the 
European  Union,  limits  must  be  established  concerning  the  conditions  governing  the 

Directive of the European Parliament and of the Council of 19 March 2001 on the reorganisation and 
winding-up of insurance undertakings (OJ L 110, 20.4.2001, p.28). 

EN 

12 

   EN 

 
                                                 
acquisition of such rights so that workers, when they exercise their right to freedom of 
movement  or  move  within  a  Member State, can receive a satisfactory  pension at the 
end of their career. 

(6a)  Where employment is terminated before an outgoing worker has accrued vested 
pension rights and when the scheme or the employer bears the investment risk (in 
particular  in  defined  benefit  schemes),  the  scheme  should  always  refund  the 
contributions of the outgoing worker. Where employment is terminated before an 
outgoing  worker  has  accrued  vested  pension  rights  and  when  the  outgoing 
worker  bears  the  investment  risk  (in  particular  in  defined  contributions 
schemes),  the  scheme  should  refund  the  value  of  the  investments  derived  from 
those contributions. The value may be more or less than the contributions paid by 
the outgoing worker. If the value is negative there is nothing to refund. 

(6b)  Outgoing  workers  should  have  the  right  to  leave  their  vested  pension  rights  as 
dormant rights in the supplementary pension scheme in which their entitlement 
was  established.  As  regards  the  preservation  of  dormant  rights,  protection  may 
be  considered  equivalent  where,  particularly  in  the  context  of  a  defined 
contribution scheme, the outgoing workers are afforded the possibility of having 
the  value  of  their  vested  pension  rights  discharged  to  a  supplementary  pension 
scheme which meets the conditions laid down in Article 5.1. 

(7) 

In accordance with national law and practice, sSteps should must also be taken to 
ensure  a  the  preservation  adjustment  of  dormant  rights  or  the  value  of  such 
dormant  rights.  so  as  to  avoid  that  outgoing  workers  are  penalised.  This  objective 
could  be  achieved  by  adjusting  dormant  rights  in  line  with  a  variety  of  reference 
measures,  including  inflation,  wage  levels,  or  pension  contributions  which  are  in  the 
course of being paid, or the rate of return on assets under the supplementary pension 
scheme.  The  value  of  the  rights  at  the  time  when  the  worker  leaves  the  scheme 
should  be  established  in  accordance  with  national  law  and  practice.  Where  the 
value of dormant rights are adjusted, account should be taken of the particular 
nature  of  the  scheme,  the  interests  of  the  deferred  beneficiaries,  the  interests  of 
the  remaining  active  pension  scheme  members  and  the  interests  of  retired 
beneficiaries. Justified administrative costs can also be taken into account where 
dormant rights are adjusted. 

(7a)  This  Directive  does  not  create  any  obligation  to  establish  more  favourable 
conditions for dormant rights than for the rights of active scheme members. 

(8)  When  the  vested  pension  rights  or  the  value  of  the  vested  pension  rights  of  an 
outgoing  worker  are not in excess of any thresholds established by the Member 
State concerned, and iIn order to avoid excessive administrative costs resulting from 
the management of a large number of low-value dormant rights, pension schemes must 
may be given the option not to preserve these vested acquired rights but to either use 
a  transfer  the  value  of  the  vested  pension  rights  or  use  a  capital  a  payment  of  a 
capital  sum  representing  the  vested  acquired  rights  when  these  do  not  exceed  a 
threshold  established  by  the  Member  State  concerned.  Where  applicable,  the 
transfer  value  or  the  capital  payment  will  be  established  in  accordance  with 
national law and practice. 

EN 

13 

   EN 

 
(9)  Workers who change jobs must be granted the possibility of choosing either to retain 
their  pension  rights  acquired  under  the  original  supplementary  pension  scheme  or  to 
transfer  the  corresponding  sum  to  another  supplementary  pension  scheme,  including 
one in another Member State. 

(9a)  This  Directive  does  not  stipulate  provisions  for  the  transfer  of  vested  pension 
rights,  however,  in  order  to  encourage  occupational  mobility  Member  States 
should  endeavour  as  far  as  possible  and  in  particular  when  introducing  new 
supplementary pension schemes, to improve the transferability of vested pension 
rights. 

(10)  For reasons of financial sustainability of supplementary pension schemes, the Member 
States  have  the  possibility  in  principle  to  exempt  unfunded  schemes  from  the 
obligation  to  allow  workers  to  transfer  acquired  rights.  However,  to  ensure  equal 
treatment for workers covered by funded schemes and workers covered by unfunded 
schemes, Member States should endeavour to progressively improve the transferability 
of rights from unfunded schemes. 

(11)  Without  prejudice  to  Directive  2003/41/EC  of  the  European  Parliament  and  of  the 
Council  of  3  June  2003  on  the  activities  and  supervision  of  institutions  for 
occupational  retirement  provision10,  active  scheme  members  and  workers  who 
exercise  or  plan  to  exercise  their  right  to  freedom  of  movement  should  be  suitably 
informed  by  those  responsible  for  managing  supplementary  pension  schemes, 
particularly  regarding  how  a  termination  of  their  employment  would  affect  their 
supplementary pension rights. Member States may stipulate that such information 
need not be provided more than once per year. 

(12) 

In  view  of  the  diverse  nature  of  supplementary  social  security  pension  schemes,  the 
Community must confine itself to establishing the objectives to be achieved in general 
terms, which means that the directive is the appropriate legal instrument. 

(13)  Given that the objectives of the measures envisaged, namely to reduce the obstacles to 
the  exercise  of  the  right  of  workers  to  freedom  of  movement  and  occupational 
mobility and to the operation of the internal market, cannot be achieved satisfactorily 
by  the  Member  States  and  may  therefore,  because  of  the  scope  of  the  measures,  be 
achieved  more  effectively  at  Community  level,  the  Community  may  take  action  in 
accordance  with  the  subsidiarity  principle  set  out  in  Article  5  of  the  Treaty.  In 
accordance  with  the  principle  of  proportionality  referred  to  in  that  Article,  this 
Directive, based on an impact assessment conducted with the help of the committee in 
the area of supplementary pensions (the Pensions Forum), will not go beyond what is 
necessary to achieve its objectives. 

(14)  This Directive establishes minimum requirements, thus enabling the Member States to 
adopt  or  maintain  more  favourable  provisions.  The  implementation  of  this  Directive 
cannot be used to justify a regression vis-à-vis the existing situation in each Member 
State. 

10 

OJ L 235 of 23.9.2003, p10. 

EN 

14 

   EN 

 
                                                 
(15) 

In view of the need to take account of the effects of this Directive, in particular on the 
financial sustainability of supplementary pension schemes, the Member States may be 
granted more time in which gradually to implement those provisions which are likely 
to have effects of this kind.  

(15a)  The 5 yearly reports shall review recent trends in the provision of supplementary 
pensions.  The  first  report  shall  also  contain  an  assessment  of  an  employer's 
liability  within  national  legislation  in  regards  to  the  outgoing  pension  rights  of 
workers  who  transfer  their  rights  to  another  pension  scheme.  The  assessment 
shall  also  explore  options  for  ensuring  legal  liability  ends  once  transfers  are 
executed. 

(16) 

the  organisation  of 
the  national  provisions  governing 
In  accordance  with 
supplementary pension schemes, the Member States may grant the social partners, at 
their  joint  request,  responsibility  for  implementing  this  Directive  as  regards  the 
provisions relating to collective agreements, provided that they Member States take 
all  the  necessary  steps  to  ensure  that  they  are  at  all  times  able  to  guarantee  the 
outcomes prescribed in this Directive,  

HAVE ADOPTED THIS DIRECTIVE: 

Article 1 

Objective 

The  aim  of  this  Directive  is  to  facilitate  the  exercise  of  the  right  of  workers  to  freedom  of 
movement  and  to  facilitate  workers'  of  the  right  to  occupational  mobility  within  the  same 
Member  State,  by  reducing  the  obstacles  created  by  certain  rules  governing  concerning 
supplementary  pension  schemes  in  the  Member  States  linked  to  an  employment 
relationship. 

Article 2 

Scope 

1. 

2. 

This  Directive  applies  to  supplementary  pension  schemes  apart  from  the  schemes 
covered by Regulation (EEC) No 1408/7111. 

This Directive does not apply to the following: 

(a) 

(b) 

supplementary pension schemes, which, on the date of entry into force of 
this Directive, no longer accept new active members and remain closed to 
them; 

supplementary pension schemes that are subject to measures involving the 
intervention of administrative bodies established by national legislation or 
judicial  authorities,  which  are  intended  to  preserve  or  restore  their 

11 

Due to be repealed and replaced by Regulation (EC) 883/04 coming into force. 

EN 

15 

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financial situation, including winding-up proceedings. This exclusion shall 
not extend beyond the end of the intervention; 

(c) 

insolvency guarantee schemes, compensation schemes and national reserve 
funds. 

Article 3 

Definitions 

For the purposes of this Directive, the following definitions shall apply: 

(a) 

(b) 

(c) 

(d) 

“supplementary pension” means a 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;  

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

“active  scheme  members”  means  workers  those  persons  whose  current 
employment relationship occupation entitles them or is likely to entitle them, 
after  fulfilling  any  acquisition  conditions,  to  a  supplementary  pension  in 
accordance with the provisions of a supplementary pension scheme;  

“vested  pension rights” means any  entitlement to a supplementary pension 
after the fulfilment of any acquisition conditions, 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;  

(da)  "vesting  period"  means  the  period  of  active  membership  of  a  scheme, 
required  under  national  law  or  the  rules  of  a  supplementary  pension 
scheme, in order to trigger entitlement to a supplementary pension; 

(e) 

(f) 

“termination  of  employment”  means  a  decision  to  terminate  an  employment 
relationship; 

“outgoing worker” means an active scheme member whose current a worker 
who,  before  becoming  eligible  for  a  pension,  leaves  an  employment 
relationship  through  which  he  has  acquired  pension  rights  or  could  have 
acquired such rights by remaining in that employment relationship terminates 
for  reasons  other  than  he  or  she  becoming  eligible  for  a  supplementary 
pension; 

EN 

16 

   EN 

 
(g) 

(h) 

(i) 

(j) 

“portability”  means  the  option  open  to  workers  of  acquiring  and  retaining 
pension  rights  when  exercising  their  right  to  freedom  of  movement  or 
occupational mobility;  

“deferred  beneficiary”  means  any  former  active  scheme  member  whose 
pension rights remain dormant under the who has vested pension rights in a 
supplementary pension scheme, until the eligibility requirements for but is no 
longer  an  active  member  of  that  scheme  and  is  not  yet  in  receipt  of  a 
supplementary pension have been met from that scheme;  

“dormant  pension  rights”  means  vested  pension  rights  retained  under  within 
the  scheme  under  in  which  they  have  been  acquired  accrued  by  a  deferred 
beneficiary  who  will  receive  a  pension  through  this  supplementary  scheme 
once the eligibility requirements have been met;  

“transfer  value  of  the  dormant  rights”  means  the  capital  value  of  the 
pension  rights  calculated  in  accordance  with  national  law  and  practice 
payment by a supplementary pension scheme of a capital sum representing all 
or part of the pension rights acquired under the scheme, with the possibility of 
transferring  this  sum  to  a  new  supplementary  pension  scheme  or  another 
financial institution which provides pension rights.  

Article 4 

Conditions governing acquisition 

The Member States shall take all necessary steps to ensure that: 

(a)  where  pension  rights  have  not  yet  been  acquired  when  employment  is 
terminated, all the contributions paid by, or on behalf of, the outgoing worker 
are reimbursed or transferred active scheme membership is made conditional 
upon a period of employment, this period shall not exceed one year; 

(b)  where  a  minimum  age  is  stipulated  for  the  accrual  by  an  active  scheme 
member  of vested acquisition of pension rights, this  age shall not  exceed is 
not more than 21 years; 

(c) 

(d) 

a worker may join a supplementary pension scheme after a maximum period of 
employment of one year or, where necessary, no later than once he has reached 
the required minimum age where a vesting period is applied this shall under 
no circumstances exceed one year for active scheme members over the age 
of 25. For active scheme members below this age vesting periods shall not 
exceed five years; 

a  where  an  outgoing  worker  acquires  pension  rights  after  a  maximum 
membership period of two years has not yet acquired vested pension rights 
when  the  employment  relationship  is  terminated,  the  supplementary 
pension  scheme  shall  reimburse  the  contributions  paid  by  the  outgoing 
worker, or paid on the worker's behalf in accordance with national law or 
collective  agreements  or  contracts,  and  where  the  outgoing  worker  bears 
the investment risk, the investment value arising from these contributions; 

EN 

17 

   EN 

 
(e)  Member States shall have the option of allowing the social partners to lay 
down different provisions by collective agreement, to the extent that those 
provisions  provide  at  least  equivalent  protection  to  the  rights  of  workers 
and active scheme members.  

Article 5 

Preservation of dormant pension rights 

Subject  to  paragraphs  2  and  3,  Member  States  shall  adopt  the  measures 
necessary  to  ensure  that  the  vested  pension  rights  of  outgoing  workers  can 
remain  in  the  supplementary  pension  scheme  in  which  they  vested.  The  initial 
value of these rights for the purposes of paragraph 1 shall be calculated at the 
point when an outgoing worker's current employment relationship terminates. 

The Member States shall adopt the measures they deem necessary having regard to 
the nature of  the pension  scheme  rules or practise, to  ensure  dormant pension 
rights  or  their  values  are  treated  in  line  with  the  value  of  the  rights  of  active 
scheme members, or the development of pension benefits currently in payment, 
or  by  other  means  which  are  considered  in  order  to  ensure  a  fair  adjustment 
treatment,  of  dormant  pension  rights  so  as  to  avoid  that  outgoing  workers  are 
penalised such as: 

(a) 

(b) 

(c) 

the  pension  rights  in  the  supplementary  pension  scheme  are  set  as  a 
nominal sum; or 

the  deferred  beneficiary  continues  to  benefit  from  a  rate  of  interest  built 
into the pension scheme, or from the return on investments derived by the 
supplementary pension provider; or 

the value of the dormant pension rights is adjusted in accordance with the 
inflation  rate  or  salary  levels  which  may  be  subject  to  a  proportionate 
limit set by national legislation or agreed by the social partners. 

The  Member  States  may  allow  supplementary  pension  schemes  not  to  retain  the 
vested preserve acquired rights of an outgoing worker but to pay use a transfer or 
payment  of  a capital  sum equivalent to the value of the vested pension rights to 
the  outgoing  worker,  as  long  as  the  value  of  the  vested  pension  rights  does 
representing the acquired rights when these do not exceed a threshold established by 
the Member State concerned. The Member State shall inform the Commission of the 
threshold applied. 

Member States shall have the option of allowing the social partners to lay down 
different provisions by collective agreement, to the extent that those provisions 
provide  at  least  equivalent  protection  to  the  rights  of  outgoing  workers  and 
deferred beneficiaries. 

-1. 

1. 

2. 

3. 

EN 

Article 6 

Transferability 

18 

   EN 

 
1. 

2. 

3. 

4. 

1. 

2. 

Unless a capital payment is made in accordance with Article 5(2), the Member States 
shall take the necessary action to ensure that if an outgoing worker is not covered by 
the  same  supplementary  pension  scheme  in  his  new  job,  he  may  obtain  on  request 
and within 18 months after the termination of his employment the transfer within the 
same Member State or to another Member State of all his acquired pension rights. 

Member  States,  in  accordance  with  their  national  practice,  shall  ensure  that  where 
actuarial  estimates  and  those  relating  to  the  interest  rate  determine  the  value  of  the 
acquired rights to be transferred, these shall not penalise the outgoing worker.  

Under  the  supplementary  pension  scheme  to  which  the  rights  are  transferred,  the 
rights shall not be subject to conditions governing acquisition and shall be preserved 
at least to the same extent as dormant rights in accordance with Article 5(1). 

Where administrative costs need to be paid during a transfer, the Member States shall 
take the necessary action to prevent them from being disproportionate to the length 
of time the outgoing worker has been a scheme member. 

Article 76 

Information 

Without  prejudice  to  the  obligations  of  the  institutions  for  occupational  retirement 
provision stemming from Article 11 of Directive 2003/41/EC, to provide concerning 
the  information  to  be  provided  to  scheme  members  and  beneficiaries,  the  Member 
States  shall  adopt  the  necessary  measures  necessary  to  ensure  that  active  pension 
scheme members can obtain on request information on workers are informed by 
the  person  responsible  for  managing  the  supplementary  pension  scheme  of  how  a 
termination of employment will would affect their supplementary pension rights in 
accordance with paragraph 2. 

Sufficient  iInformation  shall  be  provided  within  a  reasonable  period  of  time  to 
workers active scheme members who request it. It shall relate, in particular, to the 
following: 

(a) 

(b) 

the  conditions  governing  the  acquisition  of  supplementary  pension  rights  and 
the effects of applying them when employment is terminated; 

the  pension  benefits  envisaged  when  employment  is  terminated  the  value  of 
their  vested  rights  or  an  assessment  of  the  vested  pension  rights  carried 
out no more than 12 months preceding the date of the request and; 

(c) 

the  conditions  governing  the  future  treatment  preservation  of  dormant 
pension rights; 

(d) 

the conditions governing the transfer of acquired rights . 

3. 

A deferred beneficiary who so requests shall receive from the person responsible for 
managing the supplementary pension scheme iInformation on dormant pension rights 
and  on  all  changes  to  the  rules  governing  the  supplementary  pension  scheme 

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concerning  them.  shall  be  provided  to  deferred  beneficiaries  who  request  it 
concerning: 

(a) 

the value of their dormant rights or an assessment of the dormant pension 
rights  carried  out  no  more  than  12  months  preceding  the  date  of  the 
request; and 

(b) 

the conditions governing the treatment of dormant pension rights 

4. 

The  iInformation  referred  to  in  the  present  article  shall  be  provided  clearly  and 
within a reasonable period of time in writing and in a comprehensible form. 

1. 

2. 

1. 

2. 

Article 87 

Minimum requirements — non-regression 

The  Member  States  may  adopt  or  maintain  provisions  on  the  establishment  of 
pension  rights  for  workers  and  the  preservation  portability  of  supplementary 
pension rights of outgoing workers which are more favourable than those set out in 
this Directive.  

The implementation of this Directive may not under any circumstances be used as a 
reason for reducing the existing rights for the establishment and preservation of 
supplementary  pensions  degree  of  portability  of  supplementary  pension  rights 
which exists in the Member States.  

Article 98 

Implementation 

The  Member  States  shall  adopt  the  laws,  regulations  and  administrative  provisions 
necessary to comply with this Directive no later than 1 July 2008[…(2 years after 
the adoption of this Directive)], or shall ensure that may grant the social partners, 
introduce  at  their  joint  request,  responsibility  for  implementing  this  Directive  as 
regards  the  required  provisions  by  way  of  agreement  by  that  date.  relating  to 
collective agreements. In that case, Member States shall ensure that, no later than 1 
July 2008, the social partners have introduced the requisite measures by agreement; 
the  Member  States  concerned  must  are  required  to  take  all  the  necessary  steps 
enabling them at all times to ensure that they are at all times able to guarantee the 
outcomes  prescribed  in  results  imposed  by  this  Directive.  They  shall  forthwith 
inform the Commission thereof. 

Notwithstanding  the  first  paragraph,  the  Member  States  may  be  granted,  where 
necessary, an extension of 60  months starting on  1 July 2008[…(2 years after the 
adoption of this Directive)], in order to achieve the objective referred to in Articles 
4 and 5(d). Any Member State wishing to be granted this extension shall inform the 
Commission  accordingly,  indicating  the  provisions  and  schemes  concerned  and  the 
specific reasons for the extension. 

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3. 

4. 

5. 

1. 

2. 

Notwithstanding  the  first  paragraph,  and  in  order  to  take  account  of  specific 
conditions duly substantiated and linked to financial sustainability of supplementary 
pension  schemes,  the  Member  States  may  exempt  pay-as-you-go  schemes,  support 
relief  funds  and  companies  which  constitute  book  reserves  with  a  view  to  paying 
pensions  to  their  workers  from  the  application  of  Article  6(1).  Any  Member  State 
wishing  to  make  use  of  this  possibility  shall  immediately  notify  the  Commission, 
indicating  the  schemes  concerned  and  the  specific  reasons  for  the  exemption, 
together  with  the  measures  adopted  or  planned  with  a  view  to  improving  the 
transferability of rights from the schemes concerned. 

When the Member States adopt these measures, these shall contain a reference to this 
Directive or shall be accompanied by such reference on the occasion of their official 
publication.  The  methods  of  making  such  reference  shall  be  laid  down  by  the 
Member States. 

The Member States shall inform the Commission of the measures taken in order to 
implement the provisions of Article 5. 

Article 109 

Report 

Every five years after 1 July 2008[…(2 years after the adoption of this Directive)], 
the Commission shall draw up a report for submission to the Council, the European 
Parliament, the Council and the European Economic and Social Committee and the 
Committee of the Regions on the basis of the information provided by the Member 
States.  

No  later  than  10  years  after  1  July  2008,  the  Commission  shall  draw  up  The  first 
report  shall  deal  with  the  application  of  this  Directive  and  contain  a  specific 
report  on  the  application  of  Article  9(3).  On  the  basis  thereof,  if  appropriate,  the 
Commission  shall  present  a  proposal  containing  any  amendments  to  this  Directive 
which prove necessary in order to ensure equal treatment in terms of transferability 
of acquired rights for workers covered by funded schemes and workers covered by 
schemes  as  referred  to  in  Article  9(3).  that  shall  review  the  conditions  of 
transferring  capital  representing  workers'  supplementary  pension  rights.  On 
the  basis  of  that  report,  the  Commission  will,  if  appropriate,  examine  options 
for  a  proposal  containing  any  amendments  to  this  Directive  or  other 
instruments  which  prove  necessary  in  order  to  further  reduce  obstacles  to  the 
mobility of workers created by certain rules concerning supplementary pension 
provision. 

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Article 1110 

Entry into force 

This Directive shall enter into force on the twentieth day following that of its publication in 
the Official Journal of the European Union. 

Article 1211 

Addressees 

This Directive is addressed to the Member States. 

Done at Brussels,  

For the European Parliament 
The President 

For the Council 
The President 

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