Chính sách lương hưu châu Âu và tác động của chỉ thị lương hưu EU đối với các nhà tuyển dụng toàn cầu

European Commission, White paper: An agenda for adequate, safe and sustainable pensions, Brussels, 12 February 2012, COM (2012) 55/2. For a general study, see Joseph Rowntree Foundation, The impact of European Union law on pensions in the UK, September 1996; Linda Luckhaus and Graham Moffat, Serving the market and peoples’ needs: The impact of European law on pensions in the UK, York Publishing, September 1996, 120pp, ISBN: 978-1899987269. ibid; see also European Commission, Green paper: Towards adequate, sustainable and safe European pension systems, Brussels, 7 July 2010, COM (2010)365. See also European Commission, Dealing with the impact of an ageing population in the EU (2009 Ageing Report), Luxembourg, 2009, COM (2009) 180, ISBN 978-9279113639. France Telecom, EU reference IP/11/1577, Brussels, 20 December 2011 (State aid: Commission approves financing of retirement pensions of public service employees working for France Telecom subject to certain conditions). The non-confidential version of the decision will be made available under the case number SA.22553 in the State Aid Register on the DG Competition Website once any confidentiality issues have been resolved. New publications of state aid decisions on the Internet and in the Official Journal are listed in the State Aid Weekly e-News. The European Commission launched an in-depth investigation in May 2008 following a complaint (see IP/08/765). The public service employees concerned represent some 40 per cent of France Télé com's staff. The decision concerns only France Télécom's specific retirement scheme and was unrelated to the reform of pension schemes under way in France. European Union v United Kingdom (Royal Mail state aid) (2011) 087 PBLR (European Court of Justice: Referral from HM Government re state aid, 29 July 2011, (European Union – State aid – Funded pension schemes – Scheme in deficit – Privatisation – Removal of pension liabilities)). The Commission has subsequently permitted the transaction but the terms were not available at the time of writing. See also The Postal Services Act 2011 (Taxation) Regulations 2012, which (possibly unfairly) are intended to remove any unintended tax consequences of the transfer of assets and liabilities by the Royal Mail of the Royal Mail Pension Plan to the government. Which it is understood would be available by June 2012. The UK government as part of the exercise gained ownership of £35B of pension schemes assets (and £45B of liabilities). See generally Dirk Broeders, Niels Kortleve, Antoon Pelseer and Jan-Willem Wijkmans, European pension supervision, (2012) (April) Investment and Pensions Europe 32, which focuses on the ‘holistic balance sheet’ (HBS) option, rather than the Solvency II option. Distance Marketing Directive 2002/65/EC; Unfair Commercial Practices Directive, Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (Unfair Commercial Practices Directive), OJ L 149, 11 June 2005, p. 22. Text available at: http://eur-lex.europa.eu/LexUriServ/site/en/oj/2005/l_149/l_14920050611en00220039.pdf. European Commission, State aid: Establishment of the National Employment Savings Trust – NEST, State aid N 158/2009 United Kingdom, Brussels, 06.07.2010 C (2010) 4507 final (published April 2011 after having been purged of confidential information). Directive 2008/94/EC of the European Parliament and of the Council of 22 October 2008 on the protection of employees in the event of the insolvency of their employer. Article 8 provides ‘Member States shall ensure that the necessary measures are taken to protect the interests of employees and of persons having already left the employer's undertaking or business at the date of the onset of the employer's insolvency in respect of rights conferring on them immediate or prospective entitlement to old-age benefits, including survivors’ benefits, under supplementary occupational or inter-occupational pension schemes outside the national statutory social security schemes’. Wedgwood Museum Trust in administration (2012) 023 PBLR (013) (2011) EWHC 3782 (Ch) United Kingdom: England and Wales: High Court: Chancery Division: Birmingham District Registry, 2011 December 19, (Multi-employer schemes – Group schemes – Deficits – Whether last participating employer liable for deficit). Aon Trust Corporation Ltd v KPMG (a firm) & ors [2005] 39 PBLR – [2005] EWCA Civ 1004 – (2006) 1 WLR 97 – (2006) 1 All ER 238 – (2004) OPLR 373, United Kingdom: England and Wales: Court of Appeal: Civil Division, 28 July 2005, Classification – Defined benefit scheme – Whether scheme was defined benefit or defined contribution – Funding – Deficits – Liability of employer to pay deficit. Houldsworth v Bridge Trustees and Secretary of State for Work and Pensions (Imperial Home Decor) (2011) 078 PBLR – (2011) UKSC 42, United Kingdom: England and Wales: Supreme Court, 27 July 2011 (Occupational pension scheme – Status – Whether defined benefit or defined contribution – Whether internal annuitisation converts otherwise defined contribution arrangements into defined benefit arrangements under UK legislation). See, for example, Danner, ECJ Case C-136/00; Wielcokx (1995) ECR I-2493 ECJ Case C-264/96; Safir (1998) ECR I-1897 ECJ Case C-118/96; Bachmann ECJ Case C-204/90, (1992) ECR 1-249; Commission v Belgium ECJ Case C-300/90 (1992) ECR I-305, and many other cases, most of them ignored by the authorities of individual member states. A Pension Fund Pooling Scheme (PFPS) in the United Kingdom, for example, is an unauthorised unit trust where all the investors are approved UK or overseas pension funds. If it satisfies conditions set out in the PFPS regulations (SI 1996/1585) regarding the nature of the trust and its investments then the special rules in Section 469 ICTA and Section 99 TCGA that apply to unauthorised unit trusts are set aside (SI 1996/1583 and SI1996/1585). The effect of this is that income arising from the investments held by the scheme arises directly to the investors for tax purposes. This means that the trustees of the scheme do not deduct income tax from payments of scheme income to investors (as they would have to under Section 469 ICTA) and that an overseas pension fund can make double tax treaty claims in its own right in respect of its share of the income arising from scheme investments. There are similar arrangements in other member states, most notably Ireland and Luxembourg. HM Treasury, 2011 Budget statement. HM Treasury, Consultation on contractual schemes for collective investment, 9 January 2012, ISBN 978-1845329327, intended to take effect summer 2012. Wheels Common Investment Fund Trustees v HMRC (2011) 083 PBLR, (2011) UKFTT 534 (TC) United Kingdom: England and Wales: First-tier Tribunal: Tax Chamber: Reference to European Court of Justice, 8 July 2011 (VAT – Value added tax – VAT on asset management fees – Fund management fees – Whether management fees charged to defined benefit occupational pension schemes are exempt from VAT). JP Morgan Fleming Claverhouse Investment Trust Plc and another v Commissioners for HM Revenue and Customs ECJ (Case C-363/05 (2007) ECR 1-5517. European Commission v Portugal (2011) 093 PBLR, ECJ Case C-493/09 (European Court of Justice: Referral from HM Government re state aid) 6 October 2011, Taxation – Dividend income – Taxation on Investments – Cross-border taxation – European Union – Non-resident pension funds – Portugal). Schijndel v Stichting pensioenfonds voor Fysiotherapeuten ((1996) 09 PBLR, (1996) All ER (EC) 259). Fédération Française des Sociétés d’Assurance v Ministère de l’Agriculture et de la Pêche (1996) 05 PBLR; ECJ Case C-244/94; (1995) ECRI-4013, (1996) 4 CMLR 536. Poucet and Pistre (1993) ECR I-637; Joined Cases C-159/91 and C-160/91. Albany International BV v Stichting Bedrijfspensioenfonds Textielindustrie, European Union: European Court of Justice, 28 January 1999 (AG), 21 September 1999 (ECJ) (1999) 38 PBLR; ECJ Case C-67/96; [2000] 4 CMLR 446; [1999] ECR I-5751 (European Union – Competition – Collective agreements – industry-wide scheme – Statutory scheme – the Netherlands – Whether statutory compulsory industry-wide scheme contravenes EU competition law – Treaty of Rome Art 85). Bonas UK (2011) 023 PBLR United Kingdom: Upper Tribunal: Tax and Chancery Chamber: Reference from the Pensions Regulator, 17 January 2011 (The Pensions Regulator – Contribution Notice – Deficit – Employer in administration – Pre-pack – Whether pre-pack should trigger contribution notice – Whether quantum of contribution notice can exceed what would have been payable if no pre-pack). Nortel Networks UK Pension Plan and Pension Protection Fund (2012) 012 PBLR (019) United States: Third Circuit: Court of Appeals (Philadelphia), 29 December 2011 (Bankruptcy – Insolvency – United States – Whether a UK regulator has rights to delay bankruptcy procedures in the United States – Whether a government agency – Whether ‘police powers’ apply – Whether a UK financial support direction has priority over Chapter 11 agreements – Extraterritorial jurisdiction of financial support direction). Michel Barnier, the European Commissioner, in a speech on 10 February 2012 suggested that ‘we will inspire ourselves from the Solvency II approach when appropriate but that does not mean we will “copy and paste” Solvency II’; see also a similar pronouncement at the Commission's public hearing on 1 March 2012. See, for example, the absurd Pension Protection Fund, Statement on equalisation for GMPs and the application of a statutory minimum to PPF compensation for schemes in a PPF assessment period, PPF, p. 187, November 2100; Department for Work and Pensions, A possible method for equalising pensions for the effect of the Guaranteed Minimum Pension, part of the consultation on draft regulations, DWP, January 2012, p. 37; The Occupational Pension Schemes and Pension Protection Fund (Equality) (Amendment) Regulations 2012, London (draft, January 2012). Barber v Guardian Royal Exchange (1990 01 30 (AG); 1990 05 17 (ECJ)) (1990) 2 All ER 660; (1990) PLR 95; (1990) 2 CMLR 513; (1990) 1 ECR 1889; (1990) 06 PBLR (049); (1990) ICR 616; (1991) 1 WLR 72; (1990) IRLR 240; Case C-262/88 (1991) 1 QB 344. Römer v Hamburg (2011) 058 PBLRECJ Case C-147/08 European Union: European Court of Justice: reference from Arbeitsgericht Hamburg, 10 May 2011 (Equal treatment – Discrimination – Civil partners – German – European Union – Whether civil partners must be granted the same supplementary pensions as married partners). Belgian annuities (Test-Achats) (2011) 029 PBLR, ECJ Case C-236/09 (European Union: European Court of Justice: Reference from Belgian Constitutional Court, 1 March 2011) (Discrimination – Equal treatment – EU Gender Directive – Application to insurance premiums for men and women – Whether objective justification – Whether legislative exemption justifiable). European Commission, Communication from the Commission: Guidelines on the application of Council Directive 2004/113/EC to insurance, in the light of the judgment of the Court of Justice of the European Union in Case C-236/09 (Test-Achats), Brussels, 22 December 2011 C (2011) 9497 final. See, for example, Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons and their families moving within the Community, and amending regulations. Directive 98/49/EC on safeguarding the supplementary pension rights of employed and self-employed persons moving within the Community. The Commission adopted on 20 October 2005 a proposal for a Directive on improving the portability of supplementary pension rights (COM (2005) 507 final). See on portability issues, Commission of the European Communities, Brussels, 20 October 2005 COM (2005) 507 final, 2005/0214 (COD), Proposal for a Directive of the European Parliament and of the Council on improving the portability of supplementary pension rights {SEC (2005) 1293\} (presented by the Commission). See also European Commission, Quantitative overview on supplementary pension provision, Final Report, November 2007, prepared by Hewitt. And see Coppin & Vandenbrande, The mobility profile of 25 EU member states, EU, Brussels, 2007. Directive 2003/41/EC of the European Parliament and the Council of 3 June 2003 on the activities and supervision of institutions for occupational retirement provision (IORP Directive). It has been implemented in member states by domestic legislation; in the United Kingdom; see, for example, Occupational Pension Schemes (Cross-border Activities) Regulations 2005 (SI 2005 No 3381. See also to almost certainly flawed UK implementation in. http://www.thepensionsregulator.gov.uk/guidance/guidance-cross-border-schemes.aspx. In the United Kingdom, see Pensions Act 2004 ss287–295; The Occupational Pension Schemes (Cross-border Activities) Regulations 2005 SI 2005 no 3381; Occupational Pension Schemes (EEA States) Regulations 2007 SI 2007 No 3014. Klein v Austria (2011) 045 PBLR, (2011) ECHR 389 International: European Court of Human Rights: First section 3 March 2011 Vesting – Preservation – Forfeiture – Human rights – Whether pension can be forfeit for conduct unbecoming – Lawyer's pension – Whether pension is a property right capable of protection. Casteels v British Airways (ECJ) (2011) 048 PBLR, ECJ Case C-379/09 European Union: European Court of Justice: Reference from Arbeidshof te Brussel (Belgium) 10 March 2011 (European Union – Freedom of movement of workers – Migrant workers – Preservation – Vesting – Whether preservation applies to years of service in different member states – Whether lack of preservation amounts to discrimination). See, for example, The Employment Equality Directive 2000/78/EC; or The Employment Equality (Age) Regulations 2006 SI 2006 no 1031 (in the United Kingdom). Fuchs v Land Hessen (2011) 077 PBLR, ECJ Case C-159/10 (ECJ Case C-160/10) European Union: European Court of Justice: References for a preliminary ruling from the Verwaltungsgericht Frankfurt am Main (Germany), 21 July 2011 (Equal treatment – Discrimination – Age discrimination – Whether fixed retirement age objectively justifiable – Grounds for justification). Prigge v Deutsche Lufthansa (2011) 088 PBLR ECJ Case C-447/09, European Court of Justice: Reference for a preliminary ruling under Article 234 EC from the Bundesarbeitsgericht (Germany), 13 September 2011, Equal treatment – Retirement ages – Airline pilots – Whether imposition of retirement ages is justifiable in collective agreement where not imposed by general law). Michel Barnier, member of the European Commission, responsible for internal market and services, Towards a real single market for occupational pensions offering greater choice and better protection for pensioners, public hearing on the revision of the Directive on occupational pensions, Brussels, 1 March 2012, Speech/12/141; EIOPA, EIOPA's advice to the European Commission on the review of the IORP Directive 2003/41/EC, EIOPA-BIS-12/015, 15 February 2012, p. 600. A revised draft text of the IORP Directive is expected to be published by the end of 2012. Directive 95/46/EC on the protection of individuals with regard to the processing of personal data and on the free movement of such data. On 25 January 2012, the European Commission issued a draft European Data Protection Regulation intended to supersede the Data Protection Directive. European Insurance and Occupational Pensions Authority. Report on good practices for disclosure and selling of variable annuities, EIOPA CP 11/007, 4 April 2012, p. 16. European Insurance and Occupational Pensions Authority. Report on pre-enrolment information to pension plan members, EIOPA BoS-11/039, July 2011. BA, ESMA and EIOPA's Report on the legal and regulatory provisions and supervisory expectations across EU member states of simplified due diligence requirements where the customers are credit and financial institutions under the third money laundering directive 2005/60/EC, JC/2011/097, AMLTF/2011/07, April 2012; EBA, ESMA and EIOPA's Report on the legal, regulatory and supervisory implementation across EU member states in relation to the beneficial owners customer due diligence requirements under the third money laundering directive 2005/60/EC, JC/2011/096, AMLTF/2011/05, April 2012; European Commission, Report from the Commission to the European Parliament and the Council on the application of Directive 2005/60/EC on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing, Brussels, 11 April 2012, COM (2012) 168 final. Pension plans are not the obvious vector for terrorist financing, but you cannot be too careful. Although there is indeed a programme for the simplification of financial services regulation (a Lamfalussy initiative), which has been all but forgotten in the wake of the financial crisis.