A legal analysis examines whether a Dutch Premium Pension Institution (PPI) can offer a Pan-European Personal Pension Product (PEPP) in line with Dutch and EU law without infringing on compulsory pension fund membership.
The analysis concludes that a PPI can offer PEPPs through two routes: 1) The "AFS-route" which exempts the PPI from biometric risks and requires DC and individual pension schemes, and 2) proposed amendments to the PEPP Regulation addressing biometric risks comply with this approach. Additionally, a PPI offering PEPPs would not imply an infringement of compulsory membership as PEPP is an EU pension product, not a Dutch third pillar product.
Helen Kelly and Eoin Kealy provide an analysis on State Aid in Ireland in a Q&A format which outlines the authorities responsible, procedural rules and EC enforcement.
Financing services of general economic interestSpringer
This chapter analyzes the European Commission's case law regarding state aid granted to companies providing public services following the landmark Altmark ruling. The author finds that the Commission has applied the four Altmark criteria very strictly, finding that compensation constitutes state aid in most cases. While the Commission generally accepts member state definitions of public service obligations, it has interpreted its powers of review broadly. The main challenging factor for the Commission has been the fourth Altmark criterion regarding benchmarking compensation levels. Overall, the Commission has taken a restrictive approach that limits the room for financing public services without notification.
- IORP II is an EU directive that updates pension regulation and aims to improve governance, risk management, and transparency for occupational pension funds.
- It creates both challenges and opportunities for pension funds as they must comply with new requirements regarding functions like risk management and auditing.
- While IORP II seeks to facilitate cross-border consolidation of pension schemes, this may be limited in practice due to barriers like different implementation in each member state.
A diverse set of articles for this month.
• firstly, Anja Beriro considers the recent European Court of Justice judgement in an Italian procurement case that includes some very useful guidance on what to consider when looking at Part B contracts, cross-border interest and the application of the 2004 Directive
• Lynne Rathbone looks at the latest developments in the ongoing fiscal devolution debate
• Sarah Hooton examines the impact of recent developments in employment case law on pay and overtime
• we finish off by taking a dip in the pool with Neil Walker and the second instalment in a series of articles focusing on local authorities and land collaboration/joint ventures.
Legislative and jurisprudential developments in the postal sector in 2011 in ...Michal
Postal services in Poland are governed by the Postal Law Act of 2003 (in
Polish: Prawo Pocztowe)1 which maintains the monopoly of the public operator
Poczta Polska with respect of letters weighing up to 50 grams. However, Poland
will have to fully liberalize its postal services market by 31 December 2012.
For this reason, the Government adopted on 5 October 2010 Assumptions
for the Draft Postal Law Act as proposed by the Minister of Infrastructure2.
However, the Draft was not placed on the Government’s legislative agenda
for 2011. Thus, the majority of legislative work will have to be completed in
2012, a fact that jeopardizes the implementation of Directive 2008/6/EC. The
latter indicates 31 December 2012 as the deadline beyond which Member
States must not maintain a privileged position of operators providing universal
postal services
This document summarizes a legal article that examines whether recent developments related to the Lisbon Treaty justify substantial changes to the scope of legal professional privilege (LPP) and privilege against self-incrimination (PASI) in EU competition law proceedings.
It begins by briefly outlining the current scope of LPP and PASI. It then discusses the potential impact of the Charter of Fundamental Rights and EU's planned accession to the European Convention on Human Rights. The article considers arguments for why the Commission and EU Courts may need to reconsider the privileges' scope. It also examines what could constitute significant changes and proposes some nuanced improvements if radical reform lacks support.
Case Alert Aviva - Advocate General's opinionGraham Brearley
This document summarizes an opinion issued by an Advocate General of the Court of Justice of the European Union regarding the operation of cost sharing groups under EU VAT law. The Advocate General confirmed that in her view, the cost sharing group exemption is not available to businesses operating in different countries or those providing insurance services under Article 135 of the VAT Directive. The full court is still to issue its judgment in this case and the earlier DNB Banka case to determine whether VAT law imposes such restrictions.
Helen Kelly and Eoin Kealy provide an analysis on State Aid in Ireland in a Q&A format which outlines the authorities responsible, procedural rules and EC enforcement.
Financing services of general economic interestSpringer
This chapter analyzes the European Commission's case law regarding state aid granted to companies providing public services following the landmark Altmark ruling. The author finds that the Commission has applied the four Altmark criteria very strictly, finding that compensation constitutes state aid in most cases. While the Commission generally accepts member state definitions of public service obligations, it has interpreted its powers of review broadly. The main challenging factor for the Commission has been the fourth Altmark criterion regarding benchmarking compensation levels. Overall, the Commission has taken a restrictive approach that limits the room for financing public services without notification.
- IORP II is an EU directive that updates pension regulation and aims to improve governance, risk management, and transparency for occupational pension funds.
- It creates both challenges and opportunities for pension funds as they must comply with new requirements regarding functions like risk management and auditing.
- While IORP II seeks to facilitate cross-border consolidation of pension schemes, this may be limited in practice due to barriers like different implementation in each member state.
A diverse set of articles for this month.
• firstly, Anja Beriro considers the recent European Court of Justice judgement in an Italian procurement case that includes some very useful guidance on what to consider when looking at Part B contracts, cross-border interest and the application of the 2004 Directive
• Lynne Rathbone looks at the latest developments in the ongoing fiscal devolution debate
• Sarah Hooton examines the impact of recent developments in employment case law on pay and overtime
• we finish off by taking a dip in the pool with Neil Walker and the second instalment in a series of articles focusing on local authorities and land collaboration/joint ventures.
Legislative and jurisprudential developments in the postal sector in 2011 in ...Michal
Postal services in Poland are governed by the Postal Law Act of 2003 (in
Polish: Prawo Pocztowe)1 which maintains the monopoly of the public operator
Poczta Polska with respect of letters weighing up to 50 grams. However, Poland
will have to fully liberalize its postal services market by 31 December 2012.
For this reason, the Government adopted on 5 October 2010 Assumptions
for the Draft Postal Law Act as proposed by the Minister of Infrastructure2.
However, the Draft was not placed on the Government’s legislative agenda
for 2011. Thus, the majority of legislative work will have to be completed in
2012, a fact that jeopardizes the implementation of Directive 2008/6/EC. The
latter indicates 31 December 2012 as the deadline beyond which Member
States must not maintain a privileged position of operators providing universal
postal services
This document summarizes a legal article that examines whether recent developments related to the Lisbon Treaty justify substantial changes to the scope of legal professional privilege (LPP) and privilege against self-incrimination (PASI) in EU competition law proceedings.
It begins by briefly outlining the current scope of LPP and PASI. It then discusses the potential impact of the Charter of Fundamental Rights and EU's planned accession to the European Convention on Human Rights. The article considers arguments for why the Commission and EU Courts may need to reconsider the privileges' scope. It also examines what could constitute significant changes and proposes some nuanced improvements if radical reform lacks support.
Case Alert Aviva - Advocate General's opinionGraham Brearley
This document summarizes an opinion issued by an Advocate General of the Court of Justice of the European Union regarding the operation of cost sharing groups under EU VAT law. The Advocate General confirmed that in her view, the cost sharing group exemption is not available to businesses operating in different countries or those providing insurance services under Article 135 of the VAT Directive. The full court is still to issue its judgment in this case and the earlier DNB Banka case to determine whether VAT law imposes such restrictions.
VAT briefing paper - private providers of educationClaire Mack
The document discusses recent cases that have challenged the UK's interpretation of the EU VAT exemption for education supplies. The UK law takes no account of the aims of education providers and fails to correctly implement the EU Directive. Two recent cases - Finance & Business Training Ltd and The Open University - have highlighted flaws in UK law and created opportunities for commercial education providers to claim exemption. While uncertainties remain as cases progress through the courts, commercial providers should monitor developments and protect their position regarding historic VAT payments.
1. As an EU national, you have the right to work in another EU country without a work permit and are entitled to the same treatment as locals regarding access to work, assistance from employment services, and financial support.
2. If you become unemployed, you can receive unemployment benefits and look for work in another EU country for up to 6 months. You must register as a jobseeker within 7 days to avoid interruption of benefit payments.
3. If you have lived and worked in multiple EU countries, you may be entitled to a separate pension from each country proportional to the years worked there. You should claim your pension from the country where you live or last worked.
Is making the conclusion of contracts for the provision of broadband internet...Michal
In its preliminary ruling delivered on 11 March 2010, the Court of Justice had
yet another opportunity, after the VTB-VAB and Galatea cases1, to express its views
on the legality of national legislation prohibiting combined sales (that is bundling
and tying). The preliminary question arose in a dispute between Telekomunikacja
Polska SA (hereafter TP SA), the Polish incumbent telecoms operator, and the
UKE President (in Polish: Urząd Komunikacji Elektronicznej; herefater, UKE),
the Polish national regulatory authority (NRA) responsible for the telecoms field.
The original case concerned the conditions for the provision of broadband internet
access services, ‘Neostrada TP’ by TP SA. According to Article 57(1)(1) of the Polish
Telecommunications Law of 2004 (in Polish: Prawo Telekomunikacyjne; hereafter,
PT)2 ‘A service provider may not make the conclusion of a contract for the provision
of publicly available telecommunications services, including connection to a public
telecommunications network, conditional upon the conclusion by the end-user of
a contract for the provision of other services (…)’
FLAC Presentation on HRC to tRESS Seminar 27may09flac_yvonne
FLAC is an independent human rights organization that advocates for equal access to justice in Ireland. They provide legal advice and take on strategic litigation cases. One of their focus areas is the Habitual Residence Condition (HRC) applied to social welfare programs. The HRC was introduced in 2004 and creates a presumption that a person is not habitually resident if present for less than 2 years, though various court cases and guidelines have established that multiple factors must be considered, not just length of residency. FLAC continues to advocate for consistent and fair application of the HRC according to legislation and human rights standards.
1) The document provides a summary of legal news and case law updates from March 2010 related to technical claims.
2) Key updates include the publication of new sentencing guidelines for corporate manslaughter that recommend fines of at least £500,000, the refusal of an appeal in a credit hire case, and the postponement of reforms to low value personal injury claims.
3) Case law summaries address issues like when small claims track costs are appropriate, the ability of parties to raise new arguments with a costs judge, the recoverability of success fees on subrogated claims, foreseeability of allergic reactions, and when failure to remove small risks does not breach duty of care.
Respective scopes of european and national laws concerning crowdfunding opera...FinPart
This document discusses the legal frameworks governing crowdfunding at both the EU and national levels in France. At the EU level, crowdfunding activities may be subject to directives around payments, e-money, markets in financial instruments, and anti-money laundering. National laws in France further regulate areas like collecting money from the public and specific investment vehicles. The document proposes creating a new crowdfunding services provider status and exemptions for certain investments and loans to better accommodate crowdfunding within the existing legal structures.
E. rumak, p. sitarek, polish leniency programmeMichal
This paper is devoted to the Polish leniency programme, including the conditions
of obtaining lenient treatment and the applicable procedure. The type, scope
and form of information that must be submitted are commented on as well as
the marker system and summary applications. The intersection of the leniency
scheme with private enforcement of antitrust rules is discussed in detail. Special
attention is devoted to the possible ways in which private antitrust plaintiffs might
access information submitted to the UOKiK by leniency applicants. Thoroughly
analysed are the rules regulating the possibility of obtaining relevant documents
from the UOKiK and from the defendant in the course of civil proceedings as well as the status of the administrative decision in subsequent civil litigation. The paper
covers also the scope of the leniency recipient’s civil liability and touches upon
the possible ways in which it could be limited to enhance the effectiveness of the
leniency scheme. Some suggestions de lege ferenda are also provided concerning
the means of increasing this effectiveness without prejudice to the private parties’
right to compensation.
This proposal is part of the Digital Finance package, a package of measures to further enable and support the potential of digital finance in terms of innovation and competition while mitigating the risks.It is in line with the Commission priorities to make Europe fit for the digital age and to build a future-ready economy that works for the people.The digital finance package includes a new Strategy on digital finance for the EU financial sector with the aim to ensure that the EU embraces the digital revolution and drives it withinnovative European firms in the lead, making the benefits of digital finance available to European consumers and businesses.In addition to this proposal, the package also includes a proposal for a pilot regime on distributed ledger technology (DLT) market infrastructures, a proposal for digital operational resilience, and a proposal to clarify or amend certain related EU financial services rules.
Kohutek impact of the new approach to article 102 tfeuMichal
This document analyzes how the modernized approach to Article 102 TFEU, which focuses on consumer harm, may impact enforcement of Poland's prohibition on abuse of a dominant position. It finds that while Polish law and jurisprudence have not always emphasized consumer harm, protection of consumers is an explicit goal of Polish competition law and consumer welfare has increasingly been considered in judgments. Therefore, the new EU approach is unlikely to require a reorientation of how Poland's rules are applied, as consumer harm prevention was already an important, and sometimes primary, consideration. The new approach may influence procedural standards and tests used, but not the fundamental goals of Polish competition law.
The document is a memorandum from Belgian health insurance funds calling for greater social protection and stronger health policies in Europe ahead of the 2019 European elections. The memorandum makes the case that Europe has a significant impact on national policies related to social protection, healthcare, and health promotion. It argues that maintaining the Directorate-General for Health and Food Safety (DG SANTE) within the European Commission is essential for defending public health in Europe. The memorandum outlines six priority themes for healthcare and social protection: 1) a social Europe with fewer inequalities, 2) recognition of health insurance funds and a strong social economy, 3) transparent trade agreements respecting social and human rights, 4) a digital agenda addressing health challenges, 5) strengthened public health
This document is a dissertation submitted for a Master's degree in European Union Law at King's College London in 2015. It analyzes regulatory changes in the European payment services industry brought about by the revised Payment Services Directive 2 (PSD2). PSD2 aims to update regulations to reflect technological innovations and new payment practices while maintaining security. It broadens the scope of regulated payment services and access to payment accounts. The dissertation examines key issues around balancing security, innovation, and the fundamental freedoms within the European Union in the new regulatory framework under PSD2.
The document summarizes mortgage regulation at three levels - global, European, and UK. At the global level, standards are set by organizations like the FSB. In Europe, a new Directive aims to encourage a single market for mortgages while reducing risks. It covers areas like marketing, advice, and credit assessments. Key concerns for the UK include pre-contractual information requirements and the ability of lenders to provide advice. The timeline for the Directive and its interaction with the UK's Mortgage Market Review are also discussed.
Feedback on comments received on the mid-term report of the Expert-Group on e...Friso de Jong
The document summarizes feedback received on the mid-term report of the Expert Group on e-Invoicing. Key points from the feedback include:
- Most respondents welcomed the report and endorsed the vision of an EU framework to facilitate integrated e-invoicing solutions.
- There was agreement on the identified barriers and initial recommendations, but diverging views on how prescriptive legal requirements should be.
- Respondents emphasized the need for harmonized legal requirements, especially regarding VAT legislation, but some were concerned equal treatment alone could lead to fragmentation.
- Other areas in need of more clarity and harmonization included archiving requirements and the conversion of electronic documents.
- Ensuring interoper
The document discusses legislative developments regarding private competition litigation in the UK and EU. It summarizes the UK's consultation on implementing the EU Directive on Antitrust Damages Actions, which aims to harmonize private damages actions across the EU. The consultation considers whether to adopt a single or dual regime in the UK and proposes a single regime to promote clarity. It also discusses how the UK may change its limitation periods for claims to align with more claimant-friendly provisions in the Directive. Finally, it outlines specific issues like disclosure requirements and the passing-on defense that UK legislation will address when implementing the Directive.
Euro shorts 15.11.13 including trade repositories, short selling and the FTTCummings
This document provides a weekly briefing on financial services developments in Europe. It summarizes that ESMA has approved the first four trade repositories to fulfill EMIR reporting obligations under EMIR starting on February 12, 2014. It also discusses updates to ESMA Q&As on EMIR implementation, lobbying against the proposed Financial Transaction Tax, a conclusion that Article 28 of the Short Selling Regulation should be annulled, plans to introduce "bail-in" of creditor rules earlier than planned, and which banks must hold additional capital under Basel III rules.
New perspectives on Brexit for Financial Services, with relocation, the harde...Emilie Pons
In the wake of Brexit, several banks have announced a relocation to EU 27. Whether, they already have a subsidiary or need to open one, banks should not perceive Brexit as an easy task but have to plan now, in order to gain a competitive advantage. In this short presentation, Chappuis Halder & Co. offers 4 perspectives for Investment banks on the areas where it can help, such as Modelling /Clearing houses/EU Intermediate Holding Company/ Back & Middle Office optimisation
Euc Payment System End Users Committee (Euc)Friso de Jong
This paper examines the outstanding issues surrounding the SEPA project, in particular SEPA direct debit (SDD). It looks at these issues from the point of view of the payment systems users’ community, in particular the members of the End-users Committee (EUC).
The document provides information about the Horizon 2020 model grant agreement. It discusses the objectives of simplification, flexibility, coherence and continuity in the new agreement. It outlines some key changes like having a single document instead of multiple parts, electronic signatures, and simplified language. It also summarizes feedback from workshops with National Contact Points and stakeholders, and identifies major issues for discussion, such as definitions of personnel costs, time recording requirements, and intellectual property provisions.
Rapport PwC sur la taxe sur les transactions financières (2013)PwC France
http://pwc.to/1emGNhP
L'objectif de ce rapport est de revoir et de distiller indépendamment les points principaux des textes proposés par la Commission Européenne pour harmoniser les Financial Transaction Tax dans l'Union Européenne.
VAT briefing paper - private providers of educationClaire Mack
The document discusses recent cases that have challenged the UK's interpretation of the EU VAT exemption for education supplies. The UK law takes no account of the aims of education providers and fails to correctly implement the EU Directive. Two recent cases - Finance & Business Training Ltd and The Open University - have highlighted flaws in UK law and created opportunities for commercial education providers to claim exemption. While uncertainties remain as cases progress through the courts, commercial providers should monitor developments and protect their position regarding historic VAT payments.
1. As an EU national, you have the right to work in another EU country without a work permit and are entitled to the same treatment as locals regarding access to work, assistance from employment services, and financial support.
2. If you become unemployed, you can receive unemployment benefits and look for work in another EU country for up to 6 months. You must register as a jobseeker within 7 days to avoid interruption of benefit payments.
3. If you have lived and worked in multiple EU countries, you may be entitled to a separate pension from each country proportional to the years worked there. You should claim your pension from the country where you live or last worked.
Is making the conclusion of contracts for the provision of broadband internet...Michal
In its preliminary ruling delivered on 11 March 2010, the Court of Justice had
yet another opportunity, after the VTB-VAB and Galatea cases1, to express its views
on the legality of national legislation prohibiting combined sales (that is bundling
and tying). The preliminary question arose in a dispute between Telekomunikacja
Polska SA (hereafter TP SA), the Polish incumbent telecoms operator, and the
UKE President (in Polish: Urząd Komunikacji Elektronicznej; herefater, UKE),
the Polish national regulatory authority (NRA) responsible for the telecoms field.
The original case concerned the conditions for the provision of broadband internet
access services, ‘Neostrada TP’ by TP SA. According to Article 57(1)(1) of the Polish
Telecommunications Law of 2004 (in Polish: Prawo Telekomunikacyjne; hereafter,
PT)2 ‘A service provider may not make the conclusion of a contract for the provision
of publicly available telecommunications services, including connection to a public
telecommunications network, conditional upon the conclusion by the end-user of
a contract for the provision of other services (…)’
FLAC Presentation on HRC to tRESS Seminar 27may09flac_yvonne
FLAC is an independent human rights organization that advocates for equal access to justice in Ireland. They provide legal advice and take on strategic litigation cases. One of their focus areas is the Habitual Residence Condition (HRC) applied to social welfare programs. The HRC was introduced in 2004 and creates a presumption that a person is not habitually resident if present for less than 2 years, though various court cases and guidelines have established that multiple factors must be considered, not just length of residency. FLAC continues to advocate for consistent and fair application of the HRC according to legislation and human rights standards.
1) The document provides a summary of legal news and case law updates from March 2010 related to technical claims.
2) Key updates include the publication of new sentencing guidelines for corporate manslaughter that recommend fines of at least £500,000, the refusal of an appeal in a credit hire case, and the postponement of reforms to low value personal injury claims.
3) Case law summaries address issues like when small claims track costs are appropriate, the ability of parties to raise new arguments with a costs judge, the recoverability of success fees on subrogated claims, foreseeability of allergic reactions, and when failure to remove small risks does not breach duty of care.
Respective scopes of european and national laws concerning crowdfunding opera...FinPart
This document discusses the legal frameworks governing crowdfunding at both the EU and national levels in France. At the EU level, crowdfunding activities may be subject to directives around payments, e-money, markets in financial instruments, and anti-money laundering. National laws in France further regulate areas like collecting money from the public and specific investment vehicles. The document proposes creating a new crowdfunding services provider status and exemptions for certain investments and loans to better accommodate crowdfunding within the existing legal structures.
E. rumak, p. sitarek, polish leniency programmeMichal
This paper is devoted to the Polish leniency programme, including the conditions
of obtaining lenient treatment and the applicable procedure. The type, scope
and form of information that must be submitted are commented on as well as
the marker system and summary applications. The intersection of the leniency
scheme with private enforcement of antitrust rules is discussed in detail. Special
attention is devoted to the possible ways in which private antitrust plaintiffs might
access information submitted to the UOKiK by leniency applicants. Thoroughly
analysed are the rules regulating the possibility of obtaining relevant documents
from the UOKiK and from the defendant in the course of civil proceedings as well as the status of the administrative decision in subsequent civil litigation. The paper
covers also the scope of the leniency recipient’s civil liability and touches upon
the possible ways in which it could be limited to enhance the effectiveness of the
leniency scheme. Some suggestions de lege ferenda are also provided concerning
the means of increasing this effectiveness without prejudice to the private parties’
right to compensation.
This proposal is part of the Digital Finance package, a package of measures to further enable and support the potential of digital finance in terms of innovation and competition while mitigating the risks.It is in line with the Commission priorities to make Europe fit for the digital age and to build a future-ready economy that works for the people.The digital finance package includes a new Strategy on digital finance for the EU financial sector with the aim to ensure that the EU embraces the digital revolution and drives it withinnovative European firms in the lead, making the benefits of digital finance available to European consumers and businesses.In addition to this proposal, the package also includes a proposal for a pilot regime on distributed ledger technology (DLT) market infrastructures, a proposal for digital operational resilience, and a proposal to clarify or amend certain related EU financial services rules.
Kohutek impact of the new approach to article 102 tfeuMichal
This document analyzes how the modernized approach to Article 102 TFEU, which focuses on consumer harm, may impact enforcement of Poland's prohibition on abuse of a dominant position. It finds that while Polish law and jurisprudence have not always emphasized consumer harm, protection of consumers is an explicit goal of Polish competition law and consumer welfare has increasingly been considered in judgments. Therefore, the new EU approach is unlikely to require a reorientation of how Poland's rules are applied, as consumer harm prevention was already an important, and sometimes primary, consideration. The new approach may influence procedural standards and tests used, but not the fundamental goals of Polish competition law.
The document is a memorandum from Belgian health insurance funds calling for greater social protection and stronger health policies in Europe ahead of the 2019 European elections. The memorandum makes the case that Europe has a significant impact on national policies related to social protection, healthcare, and health promotion. It argues that maintaining the Directorate-General for Health and Food Safety (DG SANTE) within the European Commission is essential for defending public health in Europe. The memorandum outlines six priority themes for healthcare and social protection: 1) a social Europe with fewer inequalities, 2) recognition of health insurance funds and a strong social economy, 3) transparent trade agreements respecting social and human rights, 4) a digital agenda addressing health challenges, 5) strengthened public health
This document is a dissertation submitted for a Master's degree in European Union Law at King's College London in 2015. It analyzes regulatory changes in the European payment services industry brought about by the revised Payment Services Directive 2 (PSD2). PSD2 aims to update regulations to reflect technological innovations and new payment practices while maintaining security. It broadens the scope of regulated payment services and access to payment accounts. The dissertation examines key issues around balancing security, innovation, and the fundamental freedoms within the European Union in the new regulatory framework under PSD2.
The document summarizes mortgage regulation at three levels - global, European, and UK. At the global level, standards are set by organizations like the FSB. In Europe, a new Directive aims to encourage a single market for mortgages while reducing risks. It covers areas like marketing, advice, and credit assessments. Key concerns for the UK include pre-contractual information requirements and the ability of lenders to provide advice. The timeline for the Directive and its interaction with the UK's Mortgage Market Review are also discussed.
Feedback on comments received on the mid-term report of the Expert-Group on e...Friso de Jong
The document summarizes feedback received on the mid-term report of the Expert Group on e-Invoicing. Key points from the feedback include:
- Most respondents welcomed the report and endorsed the vision of an EU framework to facilitate integrated e-invoicing solutions.
- There was agreement on the identified barriers and initial recommendations, but diverging views on how prescriptive legal requirements should be.
- Respondents emphasized the need for harmonized legal requirements, especially regarding VAT legislation, but some were concerned equal treatment alone could lead to fragmentation.
- Other areas in need of more clarity and harmonization included archiving requirements and the conversion of electronic documents.
- Ensuring interoper
The document discusses legislative developments regarding private competition litigation in the UK and EU. It summarizes the UK's consultation on implementing the EU Directive on Antitrust Damages Actions, which aims to harmonize private damages actions across the EU. The consultation considers whether to adopt a single or dual regime in the UK and proposes a single regime to promote clarity. It also discusses how the UK may change its limitation periods for claims to align with more claimant-friendly provisions in the Directive. Finally, it outlines specific issues like disclosure requirements and the passing-on defense that UK legislation will address when implementing the Directive.
Euro shorts 15.11.13 including trade repositories, short selling and the FTTCummings
This document provides a weekly briefing on financial services developments in Europe. It summarizes that ESMA has approved the first four trade repositories to fulfill EMIR reporting obligations under EMIR starting on February 12, 2014. It also discusses updates to ESMA Q&As on EMIR implementation, lobbying against the proposed Financial Transaction Tax, a conclusion that Article 28 of the Short Selling Regulation should be annulled, plans to introduce "bail-in" of creditor rules earlier than planned, and which banks must hold additional capital under Basel III rules.
New perspectives on Brexit for Financial Services, with relocation, the harde...Emilie Pons
In the wake of Brexit, several banks have announced a relocation to EU 27. Whether, they already have a subsidiary or need to open one, banks should not perceive Brexit as an easy task but have to plan now, in order to gain a competitive advantage. In this short presentation, Chappuis Halder & Co. offers 4 perspectives for Investment banks on the areas where it can help, such as Modelling /Clearing houses/EU Intermediate Holding Company/ Back & Middle Office optimisation
Euc Payment System End Users Committee (Euc)Friso de Jong
This paper examines the outstanding issues surrounding the SEPA project, in particular SEPA direct debit (SDD). It looks at these issues from the point of view of the payment systems users’ community, in particular the members of the End-users Committee (EUC).
The document provides information about the Horizon 2020 model grant agreement. It discusses the objectives of simplification, flexibility, coherence and continuity in the new agreement. It outlines some key changes like having a single document instead of multiple parts, electronic signatures, and simplified language. It also summarizes feedback from workshops with National Contact Points and stakeholders, and identifies major issues for discussion, such as definitions of personnel costs, time recording requirements, and intellectual property provisions.
Rapport PwC sur la taxe sur les transactions financières (2013)PwC France
http://pwc.to/1emGNhP
L'objectif de ce rapport est de revoir et de distiller indépendamment les points principaux des textes proposés par la Commission Européenne pour harmoniser les Financial Transaction Tax dans l'Union Européenne.
The document discusses debarment of companies from public contracts in the European Union. It provides context on the development of debarment and the issues it presents. It then summarizes the key aspects of the new EU Public Procurement Directives implemented in 2014, including strengthened mandatory grounds for exclusion/debarment such as conviction for corruption, fraud, or other criminal offenses. The directives aim to increase transparency and prevent conflicts of interest in public procurement through measures like mandatory reporting of violations and record keeping of high-value contracts.
'The B of the Bang' - What the UK Government’s white paper on Brexit means fo...Graeme Cross
The document summarizes key points from a UK government white paper on Brexit and its implications for businesses. It discusses potential impacts on several issues including:
- Free movement of capital and access to the European Economic Area for financial services.
- Immigration controls and their effect on attracting/retaining talent, particularly for the healthcare sector.
- Negotiating a new trading relationship and customs agreement between the UK and EU.
- Restrictions on free movement and their implications for internationally mobile employees and healthcare access.
- Compliance with EU data protection laws and heightened cybersecurity risks post-Brexit.
- The UK's ability to negotiate independent trade deals globally and support available for exporters.
-
The Cost of NonEurope in the Sharing Economy: Economic, Social and Legal Challenges and Opportunities
European Parliament Research Service
This 'Cost of Non-Europe' study examines the current economic, social and legal state of play
regarding the sharing economy in the European Union, and identifies the cost of the lack of
further European action in this field.
The assessment of existing EU and national legislation confirms that there are still significant
implementation gaps and areas of poor economic performance. The subsequent examination of
areas where it was believed that an economic potential exists highlighted that substantial
barriers remain, hindering the achievement of the goals set out in the existing legislation.
Moreover, some issues are not or are insufficiently addressed (e.g. status of workers employed
by sharing economy service providers). Consequently, more European action would be
necessary to achieve the full economic potential of the sharing economy. In doing so, policymakers
should seek to ensure an adequate balance between creative freedom for business and
the necessary regulatory protection.
This research estimates the potential economic gain linked with a better use of capacities
(otherwise under-used) as a result of the sharing economy is €572 billion in annual
consumption across the EU-28. This figure should nevertheless be considered with caution;
substantial barriers prevent the full benefits from being realised, and could reduce the value of
potential increased use to up to €18 billion in the shorter-term and up to €134 billion in the
medium and longer term, depending on the scale of regulatory obstacles.
FERMA represents over 4,200 corporate insurance buyers and risk managers across Europe. They provided feedback on proposals to reform the EU insurance intermediation framework (IMD2). FERMA is concerned that the proposals and Parliament positions do not adequately address business customer needs. Specifically, they are concerned that business customers will not have a legal right to request information from intermediaries. FERMA calls on co-legislators to provide a minimum standard of disclosure for all customers to allow business customers to make informed insurance decisions. FERMA also recommends examining exemptions for large risks and professional customers to ensure all business customers have access to information.
The document provides summary minutes from the 3rd meeting of the eHealth Network. Key discussions included:
- Agreement to use the set of patient data developed in the epSOS project as the basis for an interoperability guideline.
- Emphasis on ensuring sustainability of eHealth services to qualify for funding from the Connecting Europe Facility.
- Support for establishing a standing coordination group to promote interoperability and help services obtain CEF funding.
- Need for further work on SNOMED CT terminology and patient access to health data before the next meeting in November.
Met de herziene IORP-richtlijn (IORP II) wordt onder meer beoogd een transparante en veilige bedrijfspensioenvoorziening te realiseren. Daarnaast krijgt het bevorderen van grensoverschrijdende activiteiten met betrekking tot de pensioenregelingen uit de tweede pijler hierdoor een verdere impuls. In dit artikel wordt bij een belangrijk aspect van de grensoverschrijdende activiteiten een kritische noot geplaatst. De Nederlandse uitwerking van collectieve waardeoverdracht van pensioenverplichtingen naar een andere lidstaat biedt duidelijkheid voor de praktijk, maar onderscheid op grond van nationaliteit dreigt.
This document discusses how EU law and case law apply to occupational pension schemes (IORPs). It summarizes several key EU court rulings that established that: 1) IORPs are subject to EU competition rules; 2) pension funds provide services governed by the EU freedom of services; and 3) national rules cannot restrict cross-border provision of pension services. It also notes that Solvency II requires capital to be held only in the authorizing member state. The document concludes by suggesting lessons for the IORP Directive, including harmonizing capital rules to prevent arbitrage and making it easier for IORPs to operate cross-border.
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Failure to Observe Corporate Formalities: Corporations and LLCs are required to observe certain formalities, such as holding regular meetings, maintaining separate financial records, and avoiding commingling of personal and corporate assets. If these formalities are not observed and the corporate structure is used as a mere façade, courts may disregard the corporate entity.
Alter Ego: If there is such a unity of interest and ownership between the corporation and its shareholders or members that the separate personalities of the corporation and the individuals no longer exist, courts may treat the corporation as the alter ego of its owners and hold them personally liable.
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1. 1
What is the legal margin for a Dutch PPI to operate a PEPP?
Alegal analysis byAn Wouters1
Concluding Q and A
In the Netherlands the debate on the PEPP proposal concentrates on the impact on the system of
mandatory participation when an IORP, perceived as a second pillar institution, is granted the
possibility to offer, what is in the eyes of the Dutch legislator, a third pillar pension product.
The main error in perception seems however the point of departure of the Dutch legislator: PEPP
is not a Dutch third pillar pension product, it is an European pension product. There is no EU law
definition of ‘pillars’. The applicability of the PEPP therefore should be based on characteristics
as attributed by the European legislator and by EU (case) law.
This analysis focusses on the question: if the PPI IORP operates a PEPP, is that in line with Dutch
and EU Law and how does that effect the Dutch system of compulsory participation to a pension
fund?
The conclusions of this analysis can be summarised as follows:
1
Fellow at Utrecht University, EU Pensionlaw. The author would like to thank Hans van Meerten for the discussions
and remarks during the writing process.
2. 2
Question Answer
Is a PPI ex article 1:1 AFS an eligible PEPP
provider?
Yes, provided the following conditions are
met:
- The PPI is exempted from biometric
risks;
- The PPI operates DC and individual
pension schemes
Which legal obstacles can be identified for a
PPI to manufacture and distribute PEPPs?
None when following the “AFS-route”;
To what extent do the proposed
amendments (41, 45 and 144)2 on biometric
risks fulfil the AFS-route?
They do comply with the reasoning in the
“AFS-route”.
When a PPI offers PEPP does this imply an
infringement of compulsory membership?
No.
2
The amendments on the proposed PEPP Regulation related to biometric risks. See also: draft version of the report
on PEPP by Sophia in ’t Veld : https://vbngb.eu/wp-content/uploads/2018/04/Pan-European-Pension-PEPP-201803-
EPRS_IDA2018615656_EN.pdf.
3. 3
Table of Contents
1. Introduction
2. Part 1: The Proposal
2.1.Objectives and Reasons
2.2.PEPPs: definition, providers, the Dutch problem
2.2.1. Definition
2.2.2. Providers
2.2.3. IORPs and PEPPs: the Dutch problem
3. Part 2: IORPs in accordance with the Pension Act and the Act on Financial
Supervision
3.1.Issue 1: Exemption from biometric risks
3.2.Issue 2: “the Pension Act”-route
3.3.Issue 3: “the Act on Financial Supervision”-route
3.3.1. Who is considered ‘beneficiary’?
3.3.2. Mandatory participation
4. Part 3: Reviewing amendments on biometric risks
5. Conclusion
6. Bibliography
4. 4
1. Introduction
This analysis will address the main question as to whether it is legally possible for a Premium
Pension Institution3
(PPI) defined in article 1:1 of the Act on Financial Supervision (AFS), to offer
a pan-European Personal Pension product4
as defined in the proposal for a regulation on a pan-
European Personal Pension product.5
The analysis consists of 3 parts:
The first part of the analysis will concentrate on relevant aspects of the proposal such as the
objective, reasons, the definition of PEPPs, its providers and aspects of, as in this analysis is
referred to the ‘Dutch problem’.
The second part will examine to what extent PEPPs can be manufactured and distributed by IORPs
in the sense of the Dutch Pension Act and the Act on Financial Supervision. It will start with
describing the nature of biometric risks. Then two possible routes will be explored to answer the
main question: the ‘Pension Act-route’ and the ‘Act on Financial Supervision-route’. In both parts
the focus will be on the compliance of an IORP offering a PEPP product with the principle of
mandatory participation. With the implementation of the IORP I Directive, the Netherlands has
created the PPI. The PPI, exempted from biometrical risks and insurance risks6
contains margin to
offer PEPPs (DC).
Finally, in third part, the European Parliament amendments7
concerning biometric risks will be
highlighted. A small commentary will conclude this section.
3
Hereinafter abbreviated as “PPI”.
4
Hereinafter abbreviated as “PEPP product”.
5
Proposal for a Regulation of the European Parliament and of the Council on a pan-European Personal Pension
product (PEPP), COM(2017)343 final, 2017/0143(COD), Brussels, 29 June 2017 (Hereinafter abbreviated as “the
Proposal”).
6
Due to article 42 of the proposed PEPP Regulation the focus in this report on biometric risks exclusively is chosen
deliberately. The aspect of a PPI exempted from insurance risks will not be explored in this analysis.
7
A draft version of the report on PEPP by Sophia in ’t Veld can be read by following this link: https://vbngb.eu/wp-
content/uploads/2018/04/Pan-European-Pension-PEPP-201803-EPRS_IDA2018615656_EN.pdf
5. 5
2. Part 1: The proposal
2.1. Objective and reasons
On 29 June 2017 the European Commission issued the proposal on PEPPs. Its main purpose is to
establish a pension product to be regulated partially8
on European level. The main objective can
be divided into 6 sub purposes9
:
• To set up a supplementary voluntary scheme. This so called “2nd
regime”, seeks to
complement the existing national schemes rather than replacing it10
;
• To enable providers to create a personal pension product on a pan-European level;
• To divert more household savings from traditional instruments11
;
• To provide measures that guarantee consumers are fully aware of the main features of the
product;
• To facilitate consumer liberty to elect a specific investment profile12
;
• To let consumers benefit from EU-wide portability, full transparency of costs and the
ability to switch from provider13
.
Why does the proposal focus on these objectives? Considering the reasons to draft the proposal
the current situation for individuals to complement pension savings is limited. This holds
implications for a proper functioning of the capital market. The European Commission starts from
those two perspectives to legitimate the elected goals.
From the first perspective, the possibilities for individuals to seek safe and long-term additional
pension savings, it is the view of the European Commission that current markets are poorly
developed: Firstly there are different types of products within the European Union that holds
diverging standards as to quality and return. Secondly, the choice for products based on long-
term sufficiency is limited.
Above all, the key element in the intention to provide a solution to meet the individual’s need is
consumer protection. The rights in terms of information and protection against poor investment
policies are to be envisaged within the proposal.
8
Provisions concerning retirement age, the decumulation phase, the minimum period of belonging to a PEPP scheme
and maximum period before reaching retirement age for joining a PEPP scheme are left to determine by Member
States. See Chapter VIII of the proposal.
9
Proposal for a Regulation of the European Parliament and of the Council on a pan-European Personal Pension
product (PEPP), COM(2017)343 final, 2017/0143(COD), Brussels, 29 June 2017, Explanatory Memorandum p. 3.
See also chapter 1 of the proposal.
10
The term “2nd
regime” (or 29th
regime) refers to a separate legal regime, existing apart from the 28 others. For more
detailed information, please consult the legislative history on the instrument to be found in f.i. the Explanatory
Memorandum on p.2-3 or European Council conclusions of 28 June 2016, EUCO 26/16.
11
For instance, to lead away from saving deposits.
12
Consumers will have a choice between a low risk (“safe”) default option as well as alternatives with different risk-
return profiles.
13
At the exchange of switching costs.
6. 6
Providing consumers a greater choice and safe pension product had implications for the
functioning of the capital market. When consumers are willing to buy pension products, providers
are required to step up. This leads to the second perspective, the functioning of the capital market
for long-term investments.
According to the European Commission market fragmentation prevents current personal pension
providers from maximising risk diversification, innovation and to employ economies of scale14
.
As a result the consumer is not inclined to buy personal pension products.
In the Explanatory Memorandum the European Commission listed six problem-scenarios that can
translated into the proposal’s objectives as previously explained:
• There is limited choice for eligible personal pension products;
• The absence of economies of scale leads to increased costs for consumers;
• There is a lack of liquidity and depth in capital market;
• Current personal pension products consist out of ill-features;
• Restrictions in terms of cross-border portability and
• Access to an umbrella policy framework.
Following the reasoning from the European Commission, the proposal thus aims at a
complementary regime to regulate certain features of PEPPs. This part is clear. The part that is
yet to be clarified is who may be considered as providers and what does this imply for Dutch
IORPs?
2.2. PEPPs: definition, providers and the Dutch problem
In order to understand which providers are allowed to offer PEPPs, it is needed to explore two
questions: First, what is the definition of PEPPs and, given this might hold a clue as to who it
may offer, second, which providers are according to the proposal allowed to sell PEPPs? Could
this introduce a problem for the Dutch pension system?
2.2.1. Definition
Article 2(2) of the proposed Regulation attributes five characteristics to PEPPs:
• Long-term savings products,
• Provided under an agreed PEPP scheme15
,
• By a financial undertaking authorised16
under European Union law to manage collective
or individual investments or savings,
14
See footnote 5, Explanatory Memorandum, p.2
15
An agreed PEPP-scheme refers to a contract, an agreement, a trust deed or rules stipulating which retirement
benefits are granted under which conditions on the basis of an individual retirement savings plan agreed with a PEPP-
provider (see article 3(4) of the proposed Regulation).
16
Article 4 of the proposal.
7. 7
• Subscribed to voluntary by an individual PEPP saver exclusively linked to retirement17
,
• With no or strictly restricted redeemability.
2.2.2. Providers
As emerges from the definition, providers must be authorised financial undertakings equipped
and allowed to both manufacture and distribute PEPPs18
. As stipulated in article 4 of the proposed
Regulation, the institution responsible for authorisation is EIOPA. Article 5 presents a list of
financial undertakings who may apply for authorisation of a PEPP product.
In the view of the European Commission, there are six eligible financial undertakings:
• Credit institutions authorised in line with Directive 2013/36/EU on activity of credit
institutions and prudential supervision of credit institutions and investment firms19
;
• Insurance undertakings authorised by Directive 2009/138/EC concerning direct life
insurance20
;
• Institutions for occupational retirement provision registered or authorised in accordance
with Directive 2016/2341/EU21
;
• Investment firms authorised by Directive 2014/65/EU with regard to portfolio
management or investment advice22
;
• Investment companies or management companies authorised by Directive 2009/65/EC23
;
• Alternative investment fund (“AIF”) managers authorised in accordance with Directive
2011/61/EC24
.
17
A PEPP saver is defined in article 2(3) of the proposed Regulation as: “a retail client as defined in point 11 of
article 4(1) of Directive 2014/65/EU of the European Parliament and of the Council”. (See: Directive 2014/65/EU
of the European Parliament and of the Council of 15 May 2014 on markets in financial instruments and amending
Directive 2002/92/EC and Directive 2011/61/EU, OJ L 173, 12.6.2014, p. 349–496 .
18
Article 2(3) of the proposal in conjunction with article 3(14) of the proposal.
19
Directive 2013/36/EU of the European Parliament and of
the Council of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit
institutions and investment firms, amending Directive 2002/87/EC and repealing Directives 2006/48/EC and
2006/49/EC (OJ L 176, 27.6.2013, p. 338)
20
Directive 2009/138/EC of the European Parliament and of the Council of 25 November 2009 on the
Taking-up and pursuit of the business of Insurance and Reinsurance (Solvency II) (OJ L 335,
17.12.2009, p. 1).
21
Directive 2016/2341/EU of the European Parliament and of the Council of 14 December 2016 on the
activities and supervision of institutions for occupational retirement provision (IORPs) (recast) (OJ L354,
23.12.2016, p. 37).
22
Directive 2014/65/EU OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 15 May 2014 on
markets in financial instruments and amending Directive 2002/92/EC and Directive 2011/61/EU. (recast).
23
Directive 2009/65/EC of the European Parliament and of the Council of 13 July 2009 on the coordination
of laws, regulations and administrative provisions relating to undertakings for collective
investment in transferable securities (UCITS) (recast) (OJ L 302, 17.11.2009, p. 32).
24
Directive 2011/61/EU of the European Parliament and of the Council of 8 June 2011 on Alternative
Investment Fund Managers and amending Directives 2003/41/EC and 2009/65/EC and Regulations
(EC) No 1060/2009 and (EU) No 1095/2010 (OJ L 174, 1.7.2011, p. 1).
8. 8
2.2.3. IORPs and PEPPs: the Dutch problem
As referred to in the reasons of the proposal and reiterated in the objectives, the underlying idea
of the proposal is to establish a personal pension product of which elements are regulated on a
pan-European scale. It intends to set up a voluntary scheme that enables individuals to buy
additional, safe personal pension saving products.
Given the omission of pension schemes in relation to an employer, one might deduce the proposal
is refrained to, in terms of Dutch legal pension infrastructures, so called “third pillar” pension
products. Nevertheless, holding this view might be a too simple reading since the European
Commission explicitly mentions IORPs as eligible PEPP providers25
. The European Commission
attributes authorised IORPs manufacture and distribute the PEPP product.
In other words, IORPs, implemented in the Netherlands as a “second pillar” institution, are, in the
view of the European Commission, allowed to manufacture and distribute personal pension
products – products that according to current legislation belong to the area of the “third pillar”.
Given the differences in nature between the two pillars, it is imperative to explore whether this
situation will cause difficulties. The discussion will not be examined from a bottom-up Dutch
pillar point of view but rather from a legal point of view: What is it the legal margin for an IORP
to manufacture and distribute PEPPs? In answering this question a distinction between providers
under the Dutch Pension Act and Act on Financial Supervision will be made.
Before continuing with Part 2 of the analysis, an important remark to add to the list of questions
in the previous paragraph is the inclusion of the reference to the “option to cover for biometric
risks” in the proposal26
. This holds a clue in determining eligible IORPs in the Netherlands.
Part 2 of the analysis will explore the matter of IORPs (PPI and pension funds) in the Netherlands
and their abilities to manufacture and distribute PEPPs.
25
See article 6(1) of Directive 2016/2341/EU. Directive (EU) 2016/2341 of the European Parliament and of the
Council of 14 December 2016 on the activities and supervision of institutions for occupational retirement provision
(IORPs), OJ L 354, 23.12.2016, p. 37–85.
26
Article 42 of the proposal.
9. 9
3. Part 2: IORPs in accordance with the Dutch Pension Act and Act on Financial
Supervision.
Part 2 of this analysis will concentrate on the PPI as an eligible PEPP provider. The main question
is: “To what extent is the entity of the PPI, which is in principle exempted from covering
biometrical risks itself, from a legal point of view, equipped to provide PEPPs without interfering
with the Dutch 2nd
pillar?”
In order to answer this question first, attention must be drawn to the issue “exempted from
biometrical risk”. Second 2 particular thinking paths will be explored: The “Pension Act- route”
and the “Act on Financial Supervision-route”. The matter of mandatory participation will be
discussed within the context of both routes.
But first a brief recapitulation of the PEPP product and the IORP as eligible providers.
In part 1 the PEPP product was described as a long-term saving product exclusively linked to
retirement, provided under an agreed PEPP scheme by an authorised financial undertaking. It is
requested voluntarily by an individual and there is no or only a limited option to redeem. In the
Netherlands, pension products without a link to an employer are considered as third pillar products.
The proposal enables an IORP to both manufacture and distribute PEPPs. In order to designate
providers, it refers to the definition of an IORP as stipulated in the IORP Directive in article 6 (3).
IORPs are considered as second pillar vehicles.
In the Netherlands the IORP Directive was implemented in the Pension Act and in the Act on
Financial Supervision27
. Second pillar pension schemes are either Defined Benefit (DB) or
Defined Contribution (DC). DB pension schemes are covered in the Pension Act while DC pension
schemes are to be found in both the Act on Financial Supervision and Pension Act.
3.1.Issue 1: exemption from biometrical risks
The proposal facilitates the option for PEPP providers to cover the “risk of death and other
biometric risks”28
. Article 42 of the proposal specifies biometric risks are risks related to death,
longevity and disability. When read in combination with the entity of the IORP as an eligible
provider, it seems to imply a clear vote for a PPI as manufacturer and distributor of PEPPs.
27
To read more about the implementation of the 2003 IORP directive in Dutch legislation see H. van Meerten, De
Premiepensioeninstelling, Van Maar Ook Op Alle Markten Thuis (The PPI, Active on All Markets)? (December 16,
2008). NTER, No. 12, p. 347, December 2008. Available at SSRN: https://ssrn.com/abstract=2130685
28
See footnote 5, Explanatory Memorandum proposal, p. 14.
10. 10
The PPI was introduced in the Netherlands as a first phase institution in the process to implement
the IORP I Directive29
. Contrary to for instance a pension fund or an insurer30
, initially a PPI
focused only on the accrual phase. Very much like the PEPP does.
It is, in fact, an institution especially designed to operate pension schemes that do not entail
biometric risks. In terms of operation, this implies that, at the end of the accumulation phase, the
PPI transferred the capital to a biometric covering entity, i.e. an IORP or a Solvency II entity.
Therefore, a PPI operates Dutch defined contribution (DC) pension schemes, although technically
the accrual phase of (foreign) DB are also possible.31
In part 1, the matter “the Dutch problem” was introduced briefly. At the centre of the problem lies
the assumption that an IORP (second pillar) is legally not able to manufacture and distribute
personal pension products that are envisaged as “third pillar” products.
The discussion has a high political dimension32
. This analysis wishes to contribute to this
discussion by delivering a legal exposure of the abilities of a PPI. For that reason, it is necessary
to concentrate on two aspects of the political discussion while discussing the routes:
• An opinion that is frequently stated is that when an IORP does indeed manufacture and
distribute PEPPs the principle of separation of responsibilities is at stake.
• In order to apply the proposed PEPP Regulation the existing Dutch national law has to be
amended that, in turn, could then ‘harm’ the system of mandatory participation.
29
Amendment of the Financial Supervision Act and some other acts in connection the introduction of premium
pensions institutions, 2008-2009, 31 891, nr 3, p.1.
30
According to the list of eligible providers in the proposal, an insurer is entitled to manufacture and distribute PEPPs
as well. This analysis will not elaborate on this. It merely seeks to answer the question whether a PPI, as an IORP, is
an eligible provider.
31
H. van Meerten, De Premiepensioeninstelling, Van Maar Ook Op Alle Markten Thuis (The PPI, Active on All
Markets)? (December 16, 2008). NTER, No. 12, p. 347, December 2008. Available at SSRN:
https://ssrn.com/abstract=2130685.
32
The government’s point of view is expressed in the BNC-fiche (Fiche 3, COM(2017)343) p.6-7. Other parties are
i.a., the Pensioenfederatie (their view can be read by accessing the following link:
https://www.pensioenfederatie.nl/website/themas/europa/pan-european-personal-pension-product) and het Verbond
van Verzekeraars who are more enthusiastic (see: https://www.verzekeraars.nl/publicaties/actueel/verbond-en-ppi-
s-shoprecht-bij-persoonlijk-europees-pensioenproduct).
11. 11
3.2. Issue 2: “the Pension Act-route” (the PA-route)
A pension provider’s general duty is embodied in article 32 of the Pension Act. As provider of
pension schemes its general task is to perform a pension agreement based on an agreement of
affiliation or affiliation regulations ex article 1 of the Pension Act. In article 32 of the Pension Act
an agreement of affiliation is defined as an agreement between an employer and a pension provider
which governs the administration33
. Article 116 of the Pension Act contains a prohibition on
ancillary activities. A pension fund must refrain from activities other than work and pension
related. A minor exception to this rule might be captured in article 117 of the Pension Act: in the
event of an existing base pension scheme performed by the same pension fund it is accepted to
carry out a voluntary pension scheme if this supplements the current one.
A similar scenario occurs for compulsory professional pension schemes: Article 114 of the
Mandatory Professional Pension Schemes Act (MPPA) postulates the prohibition on ancillary
activities with the minor exception of the case of supplementing an existing base pension scheme
by a voluntary pension scheme34
.
The prohibition on ancillary activities is the foundation of the separation of responsibilities
between pension funds, pension institutions and insurers. The matter of separation of
responsibilities is closely linked the issue of mandatory participation which is an imperative
feature of the Dutch second pillar pension infrastructure.
In the event a second pillar IORP, in the meaning of the Pension Act, wants to manufacture and
distribute PEPPs, considered as third pillar pension products35
, a complex and political hurdle
must be overcome.
This hurdle is noticed by the Dutch government and social partners in the consultation phase of
the PEPP Regulation36
. According to the Dutch government the second pillar structure must be
left intact. The proposed PEPP Regulation seems to, thus is the view of the government, touch the
second pillar structure. To be more particular, when a second pillar IORP is eligible to manufacture
and distribute PEPPs (presumably so called “third pillar”), the existing division of pension
products to be operated by several market parties will need to be readdressed. Broadened even,
which implies a snowball effect to the system of mandatory participation.
For that reason, the Dutch government is taking a reluctant and sceptical view on the proposed
PEPP Regulation. Taking this view as a leading voice into the debate, one should be aware of its
premises. Again emphasize must be that in the following reasoning the PEPP is regarded as ‘third
pillar’, which is not – legally speaking- correct.
33
Article 1 Pension Act also list additional pension agreements as subject matter to the agreement.
34
See articles 1, 114 and 115 MPPA.
35
They are considered third pillar products because of the following reasons: they are additional, personal (so not
linked to an employer’s agreement) and voluntary.
36
BNC fiche, p.7.
12. 12
The first critical note concerns the bottom-up approach rather than the top-down approach. The
instrument chosen to regulate pan-European personal pension products is that of a Regulation.
Apart from the direct applicability as a main characteristic, it also implies a top-down approach:
the PEPP product is an European product aimed at establishing a feasible capital market on which
long-term, additional, voluntary personal saving pension products are circulating. It is, de jure, nót
a Dutch third pillar product.
The second critical remark involves the IORP. According to the European Commission, an IORP
eligible to manufacture and distribute PEPPs, may call in an option to cover biometric risks. This
suggests a vision in which IORPs manufacture and distribute PEPPs do not exclusively contain
the requirement that all second pillar IORPs. Only those IORPs that are not carrying biometric
risks.
An IORP on the “PA-route” is unlikely to manufacture and distribute PEPPs. A DB IORP cannot
in principle not ringfence.37
Thus the PEPP cannot be legally separated from the other schemes
the DB IORP operates. Cross-contamination between the PEPP and the other schemes might then
occur.
Allowing DB IORPs to offer a PEPP could potentially open up the second pillar market. By effect
it would create a breach to the existing privileged second pillar market that comprises out of
mandatory industry-wide pension funds that benefit from an exclusive right to operate pension
schemes. This is governed by the Act on Compulsory Membership of Sectoral Pension Fund 2000
(Hereinafter addressed as “Bpf Act”).
Mandatory participation was established by the Bpf Act38
. As a result participation in a pension
scheme for employers and employees in certain sectors of industry is made compulsory through
government intervention. Provided a pension fund meets certain criteria, such as the legal form of
foundations, it is allowed to operate these pension schemes39
. Its main features are collectivity and
solidarity. In the event other market parties should enter this closed section, it adds new parties
the existing second pillar market. It also would enable pension providers who previously were
operating with “benefits”40
exclusively attached to the closed second pillar market to operate
PEPPs and thus operating under a privileged modus preventing a proper level playing field. That
is true. This is however not required, not at stake, not necessary. For the proposed PEPP Regulation
does provide the option for an IORP to measures covering biometrical risks.
37
See for more detail: H. van Meerten, B. Hooghiemstra, PEPP – Towards a Harmonized European Legislative
Framework for Personal Pensions: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2993991
38
See article “Compulsory Membership of pension schemes and the free movement of services in the EU” by H. van
Meerten and E. Schmidt, European Journal of Social Security, 2017, Vol. 19(2) 118-140.
39
Ibid; Article 1 Pension Act.
40
An elaborate discussion on the “large” mandatory participation can be read in the article on compulsory
membership of pension schemes as referred to in footnote 36.
13. 13
Since the Netherlands already employs PPIs to operate DC pension schemes there is no need to
amend legislation that would reorganise the second pillar social features. The separation of
responsibilities is not at stake. Mandatory participation is not to be breached by the proposed
Regulation.
Given the possible quod non of the PA-route, the separation of responsibilities and mandatory
participation another route will be investigated: the AFS-route.
14. 14
3.3. Issue 3: “the Act on Financial Supervision-route” (the AFS-route)
Rules concerning the PPI are – besides the Dutch Pension Act, laid down in the Act on Financial
Supervision (AFS)41
The definition of a PPI is stipulated in article 1:1 of the AFS. It defines a PPI as an undertaking
that has been set up with the aim of executing DC schemes and other schemes in which the
premium pension institution does not bear any insurance risk that has been classified as
occupational pension schemes under the applicable legislation. Article 3:36 of the AFS refrains a
PPI from taking on other activities than authorised ex article 2:54g (1) of the AFS.
The PPI is an institution that fits within the framework of the IORP Directive. It was established
with the purpose of providing labour related pension benefits. Back then, the novelty was the given
that, in contrast to existing institutions, a PPI had been set up independent of any contributing
company or trade. It is financed based on funding42
.
A PPI is refrained to operate pension schemes which are envisaged by national social and labour
law. In the Netherlands the Pension Act and Obligatory Occupational Pension Scheme Act are
guiding43
. A PPI cannot carry an underwriting risk. It is, in particular, designed to operate pension
schemes that do not entail risk insurance44
and to manage DC pension schemes.
In terms of the criterion of exemption from biometric risks, there is no reason to withhold a PPI
from manufacturing and distributing a PEPP product. The same applies for the link with operating
labour related benefits. Similar with the PPI, the PEPP product and their providers should envisage
the pension objective45
. The latter was explained in Part 1 when describing the characteristics of
the PEPP product and their providers.
3.3.1. Who is considered as ‘beneficiary’ of pension provision according to AFS?
With the introduction of the PPI in the AFS, a new concept in this act was introduced, being the
'pension participant'. This pension participant is a "natural person who, on the basis of his
professional activities46
, will be entitled to receive pension benefits in accordance with the
provisions of a pension scheme." This is a broadening of the term pensioner under the Pension
41
Tax matters will not be discussed in this analysis.
42
Explanatory Memorandum, Amendment of the Financial Supervision Act and some other acts in connection the
introduction of premium pensions institutions, 2008-2009, 31 891, nr 3, p 4.
43
In this regard it is intriguing to look at which laws are considered. One could argue that legislation and caselaw
concerning consumer protection and article 38 (consumer protection) of the EU Charter of Fundamental Rights has
to be taken into account as well.
44
See footnote 35, p. 4.
45
See: discussion paper of IOPA. European Insurance and Occupational Pensions Authority, Discussion Paper on a
possible EU-single market for personal pension products, 16 May 2013, EIOPA/13/241,7.
46
‘beroepswerkzaamheden’
15. 15
Act, with which it was also intended to bring foreign self-employed persons47
under the concept
of participant within the meaning of the IORP I Directive (2003/41 /EC)48
.
However, it is not entirely clear in Dutch law what is meant by 'professional activities', as both the
IORP Directive and the parliamentary history of the PPI Act do not deal with this issue. The IORP
Directive stipulates that national social and labor law applies to the relationship between the
participant and the sponsoring undertaking. This indicates that on the basis of Dutch social and
labour legislation, an assessment should be made of ‘professional activities’.
The PEPP-saver is defined in article 2(3) of the proposal as: (a) a retail client as defined in point
(11) of Article 4(1) of Directive 2014/65/EU of the European Parliament and of the Council49
; (b)
a customer within the meaning of Directive 2002/92/EC of the European Parliament and of the
Council50
, where that customer would not qualify as a professional client as defined in point (10)
of Article 4(1) of Directive 2014/65/EU;
"PEPP scheme" means a contract, an agreement, a trust deed or rules stipulating which retirement
benefits are granted and under which conditions on the basis of an individual retirement savings
plan agreed with a PEPP provider51
;
It seems justifiable that a PPI, when offering a PEPP, the PEPP saver can qualify as a ‘pension
participant’ ex 1:1 AFS.
But how does this interact with the definition of the PPI and article 3:36 AFS?
Following the definition of the PPI, in my view, the applicable legislation includes also the AFS.
Especially its provisions regarding consumer protection. The definition of ‘social and labour law’
in the Dutch Pension Act is not exhaustive52
.
47
With regard to this issue one might wonder whether the separation between so called “second pillar” providers and
products and “third pillar” providers and products is set in current legislation. Looking at for instance the matter of
“nettoregeling” it is not carved in stone that a self-employed person (participant under the IORP Directive) cannot
buy an occupational pension that is tied to the second pillar market. See for instance:
file:///C:/Users/A.Wouters/Downloads/blkb-2014-2132-conceptbesluit-premieovereenkomsten-2015.pdf.
48
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 provision, OJ L 235, 23.9.2003, p. 10–21.
49
Directive 2014/65/EU of the European Parliament and of the Council of 15 May 2014on markets in financial
instruments and amending Directive 2002/92/EC and Directive 2011/61/EU, OJ L 173/349, 12.6.2014, p.349.
50
Directive 2002/92/EC of the European Parliament and of the Council of 9 December 2002 on insurance mediation,
OJ L009, 15.1.2003, p.3.
51
Article 3(4) of the proposal.
52
See for instance case law as discussed in the section on mandatory participation and on consumer rights i.c.w.
article 38 of the EU Charter.
16. 16
In other words, when a PEPP saver performs professional activities, a PPI can offer a PEPP to
individuals. This is not in conflict with the IORP Directive (which makes also contracts with
individuals possible, nor with the Dutch legislation. `
With regard to article 3:36 AFS which stipulates that a PPI is not allowed to pursue another
business than the business the license was granted for.
However when the line of reasoning above is followed, article 3:36 AFS is not applicable. There
is simply no activity that the PPI, when offering a PEPP, is pursuing contrary to its license.
Offering a PEPP fits in the legal definition of the PPI.
3.3.2. Mandatory participation
When a PPI manufactures and distributes PEPPs, could that be perceived as an infringement of
the principle of mandatory participation?
Taking into account European case law on mandatory participation and alleged breaches on article
56 TFEU is it defendable the answer is negative. That is to say, at this point, following the
reasoning in case law, there is no ground to state that a PPI manufacturing and distributing PEPPs
would breach provisions on mandatory participation.
Article 56 TFEU53
prohibits all restrictions on the movement of capital and payments between
Member States and Member States and third parties. By inversion, the article ensures freedom to
provide services.
Cases such as Säger v Dennemeyer and Corsica Ferries France v Direction Générale des
douanes54
support the reasoning that any form of discrimination against a service provider on
ground of nationality or other barriers limiting the provision of services is in breach with the
principle of freedom to provide services.
Mandatory participation is subject to rulings of the ECJ from several perspectives. The
significance of the rulings is to be found beyond the specific area of interest and in coherence with
multiple cases.
The case of Albany for example concerned an infringement of provisions of Competition law55
.
The Court reasoned that collective agreement making affiliation to a Dutch pension scheme
obligatory falls beyond the scope of competition law56
. As a result so does the decision by the
public authorities to make affiliation to a sectoral pension fund mandatory. Although the Court
argued that violation with competition law was present, it also stated that the breach was found
53
See also preamble 22 of TFEU.
54
Säger v Dennemeyer (C-76/90) [1991] EU: C1991:331 and Corsica Ferries France v Direction Générale des
douanes (C-49/89) [1989] EU:C:1989:649.
55
Albany, Brentjens’ Handelsonderneming BV v Stichting Bedrijfstakspensioenfonds voor de Handel in
Bouwmaterialen (Brentjens) (C-115/97-C117/97) [1999] EU: C:1999:434; Maatschappij Drijvende Bokken BV v
Stichting Pensioenfonds voor Vervoer- en Havenbedrijven (Drijvende bokken) (C-219/97) [1999] EU: C:1999:437.
56
Ibid, points 45 and 61 (first preliminary question).
17. 17
justified given the essential social function of the fund57
. In this case, the Court also delivered a
definition of services offered by pension providers58
: services of general economic interest (SGEI).
Because of the qualification of services offered by pension providers in Albany and AG2R59
,
mandatory pension schemes and the French compulsory healthcare costs insurance scheme at stake
in AG2R were able to rely on article 106(2) TFEU. Article 106(2) TFEU provides that
undertakings of which services can be qualified as SGEI are subject to the rules on “in particular”
competition on the condition their application is not in breach with tasks assigned to them60
.
What does this imply for provisions as stipulated in article 56 TFEU? Unfortunately, the Court
has not yet clarified the relationship between the exception postulated in article 106(2) TFEU and
article 56 TFEU. In Commission v Germany61
and Viking62
the IORP Directive had not been issued
yet63
. One can, though, assume, the application of the exception in article 106(2) TFEU on, inter
alia, the provisions on free movement64
.
In Kattner Stahlblau65
the Court ruled on mandatory participation in a social insurance scheme for
labour-related accident. It stated that although social security schemes is a discretion left to
Member States, it must be exercised in accordance with the freedom to provide services. This was
not the case at Kattner Stahlbau: here the Court ruled that the way in which the system was set up
it would imply an infringement with the Treaty. Such an infringement is only accepted when there
are grounds of justification relating to the public interest66
. This was not the case and therefore the
restriction did not stand the test of article 56TFEU in conjunction with article 106(2).
Recently the Court reasoning in UNIS67
that, in the event a Member State’s public authority
executes an exclusive right the principle of transparency must be taken into account. A ministerial
decision to appoint a single body to execute the administration of an insurance or pension schemes
is an example of an exclusive right68
. The principle of transparency originates from the principles
on equal treatment and non-discrimination.
The Court states in UNIS that the principle of transparency implies “a degree of publicity sufficient
to enable, on the one hand, competition to be opened up, and on the other hand the impartiality of
57
Ibid, point 122.
58
Ibid, points 102 and 104.
59
AG2R Prévoyance v Beaudout Père et fils SARL (C-437/09) [2001] EU: C2011:112.
60
See also: “Compulsory membership of pension schemes and the free movement of services in the EU”, by H. van
Meerten and E. Schmidt, European Journal of Social Security, 2017, Vol. 19(2), p. 126.
61
Commission v Germany (C-271/08) [2010] EU C: 2010:426.
62
Viking (C-438/05) [2007] EU C:2007:772.
63
Furthermore the grounds for justification differ when tested against discrimination on the basis of nationality.
Although intriguing, this is not a central point. For a more extensive reading, please consult the article as referred in
footnote 48.
64
Ibid; footnote 48.
65
Kattner Stahlbau GmbH v Maschinenbau-und metall- Berufgenossenschaft (C-360/07) [2009] EU: C:2009:127.
66
A justified breach must also pass the test of proportionality and fit the alleged objective.
67
UNIS (C-25/14) [2015] EU: C:2015:821.
68
See f.i. Kattner Stahlbau as referred to in footnote 53 on Member States’ discretion.
18. 18
the award procedure to be reviewed” 69
. In combination with Viking, this means that the
“requirements of fundamental freedom apply not only to actions of public authorities but extend
to rules of any nature aimed at regulating in a collective manner gainful employment, self-
employment and the provision of services70
”
So both social partners and public authorities are subject to requirements of fundamental freedom.
When we combine this with the ruling in UNIS, it is defendable to assume that the principle of
transparency, originating from the principles of equal treatment and non-discrimination as listed
in article 56 TFEU, must be envisaged by social partners too. Applying this line of reasoning to
the situation at hand in the Netherlands71
, the principle must be considered. The fact that the Act
Bpf does not provide for margin to allow other pension providers, seems not in line with article
56 TFEU.
To conclude, when the PPI executes only DC schemes that falls outside the scope of the system
of mandatory to a pension fund, the relevant (and recent) EU case law seems not to apply to the
question whether a PPI PEPP might endanger the mandatory participation. Studying the relevant
case law, one simply cannot conclude that this might occur.72
In the non-mandatory sector, where
the PPI operates, the employer has freedom of choice which entity executes the pension scheme.
Of course, article 56 TFEU applies.73
But a PPI PEPP as such does not have consequences for the
system of mandatory participation.
69
See Unis, point 46.
70
Viking, point 55.
71
The situation being, affiliation made mandatory by only one type of Dutch pension provider: a
bedrijfstakpensioenfonds.
72
See for more details and case law: H. van Meerten, E.S. Schmidt, Compulsory membership of pension schemes
and the free movement of services in the EU (as referred to in footnote 60).
73
C-678/11, Commission vs Spain ”It must be noted that the services offered by pension funds and insurance
companies in relation to occupational pension schemes are services within the meaning of Article 57 TFEU. They
are services normally provided for remuneration, the essential characteristic of which lies in the fact that it constitutes
consideration for the services in question.”
19. 19
4. Part 3: reviewing amendments on biometric risk
In this section amendments with regard to biometric risks will be highlighted followed by
comments. This will be presented through an overview. It will be complemented by a brief
commentary.
Proposed amendment Point of reflection
Amendment 41:
Adding definition of biometrical risks to
article 2 (new indent)
• In line with reasoning in Part 2.
• No comment
Amendment 45:
Article 5: Adding feature of DC, exemption of
biometrical risks for an IORP.
• Article 5 is currently referring to the
definition in article 6 (3) of IORP II.
Adding “DC, exemption from
biometrical risks” to the definition
would mean an additional referral.
• The proposed amendment does
comply with the AFS-route in Part 2.
Amendment 144:
Alternation of current article 42: “PEPP
providers may offer PEPPs with an option
ensuring the coverage of the risk of biometric
risk. For this purpose biometric risks mean
risks linked to longevity, disability and death”
Into:
“Without prejudice to article 5, PEPP
providers may offer PEPPs with a
supplementary option ensuring the coverage of
the risk of biometric risk”
• “an” option “ a supplementary
option”
• What is the added value of the
substitution?
Commentary
The proposed amendments do consider the feature of “DC, exemption of biometrical risks”
which would, in theory74
, facilitate PPI DC to manufacture and distribute PEPPs in the
Netherlands. To that end adding the predicate serves a clear purpose.
74
As argued in this analysis given the exemption of biometric risks.
20. 20
5. Conclusion
The main question of the analysis was whether a PPI, exempted from biometric risks, given its
legal margin, could be an eligible PEPP provider.
The answer is affirmative since the proposed PEPP Regulation does envisage the option for an
IORP to cover for biometric risks. Moreover, both the PPI operating DC pension schemes and
the proposal are tied by the pension objective.
In the Netherlands some pension funds are reluctant to comply with the proposed PEPP
Regulation because it would disturb the principle of mandatory participation and require
amendments of the Pension Act that entails a broadening of the separation of responsibilities. It
is argued in this analysis that these concerns are either not relevant (given the fact that pension
providers on the PA-route are not exempted from biometric risks and therefore not likely to
operate PEPPs), or, not legally correct tested against apparent EU (case) law and Dutch
legislation for providers on inter alia the AFS-route.
To conclude the analysis, the EU Parliament amendments related to biometric risks were
considered. Ensuring that the exemption from biometric risks is included in the text of the
proposal, would lead to a reading in which in the Netherlands, qualifying PPIs would be able to
manufacture and distribute PEPPs without breaching Dutch or EU legislation and without
breaching compulsory membership to a pension fund.
21. 21
6. Bibliography
Proposal for a Regulation of the European Parliament and of the Council on a pan-European
Personal Pension product (PEPP), COM(2017)343 final, 2017/0143(COD), Brussels, 29 June
2017.
(Proposal for a Regulation of the European Parliament and of the Council on a pan-European
Personal Pension product (PEPP), COM(2017)343 final, 2017/0143(COD), Brussels, 29 June
2017, Explanatory Memorandum)
European Council conclusions of 28 June 2016, EUCO 26/16
(https://www.consilium.europa.eu/media/21645/28-euco-conclusions.pdf).
Directive 2014/65/EU of the European Parliament and of the Council of 15 May 2014 on markets
in financial instruments and amending Directive 2002/92/EC and Directive 2011/61/EU, OJ L
173, 12.6.2014, p. 349–496.
Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 on access
to the activity of credit institutions and the prudential supervision of credit institutions and
investment firms, amending Directive 2002/87/EC and repealing Directives 2006/48/EC and
2006/49/EC (OJ L 176, 27.6.2013, p. 338)
Directive 2009/138/EC of the European Parliament and of the Council of 25 November
2009 on the Taking-up and pursuit of the business of Insurance and Reinsurance
(Solvency II) (OJ L 335, 17.12.2009, p. 1).
Directive 2016/2341/EU of the European Parliament and of the Council of 14 December
2016 on the activities and supervision of institutions for occupational retirement provision
(IORPs) (recast) (OJ L354, 23.12.2016, p. 37).
Directive 2014/65/EU OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 15
May 2014 on markets in financial instruments and amending Directive 2002/92/EC and Directive
2011/61/EU. (recast).
Directive 2009/65/EC of the European Parliament and of the Council of 13 July 2009 on
the coordination of laws, regulations and administrative provisions relating to undertakings
for collective investment in transferable securities (UCITS) (recast) (OJ L 302, 17.11.2009, p.
32).
Directive 2011/61/EU of the European Parliament and of the Council of 8 June 2011 on
Alternative Investment Fund Managers and amending Directives 2003/41/EC and 2009/65/EC
and Regulations (EC) No 1060/2009 and (EU) No 1095/2010 (OJ L 174, 1.7.2011, p. 1).
22. 22
European Insurance and Occupational Pensions Authority, Discussion Paper on a possible EU-
single market for personal pension products, 16 May 2013, EIOPA/13/241
(https://eiopa.europa.eu/Publications/Discussion%20paper/20130516_EIOPA_Discussion_Paper
_Personal_Pensions_def.pdf)
EU Charter of Fundamental Rights
Directive 2014/65/EU of the European Parliament and of the Council of 15 May 2014 on markets
in financial instruments and amending Directive 2002/92/EC and Directive 2011/61/EU, OJ L
173/349, 12.6.2014, p.349.
Directive 2002/92/EC of the European Parliament and of the Council of 9 December 2002 on
insurance mediation, OJ L009, 15.1.2003, p.3.
Amendment of the Financial Supervision Act and some other acts in connection the introduction
of premium pensions institutions, 2008-2009, 31 891, nr 3.
BNC-fiche (Fiche 3, COM(2017)343)
The Pension Act
Act on Financial Supervision
Mandatory Professional Pension Schemes Act
Act on Compulsory Membership of Sectoral Pension Fund 2000
BLKB 2014-2132, LH, Staffelbesluit 2015:
(https://www.rijksoverheid.nl/documenten/besluiten/2014/12/30/blkb-2014-2132-lh-
staffelbesluit-2015)
M. Heemskerk, Pensioenrecht, Boom Juridische Uitgevers, Den Haag, 2015.
Hans van Meerten, Van, maar ook op vele markten thuis”, NTER, 2012, nummer 8 (p. 347 – 355).
H. van Meerten and E. Schmidt, Compulsory Membership of pension schemes and the free
movement of services in the EU”, European Journal of Social Security, 2017, Vol. 19(2) 118-140.
S.N. Hooghiemstra and H. van Meerten, PEPP – Towards a harmonized European Legislative
Framework for personal pensions, Working Paper, June 2017.
T. Nijman, N. Määttänen, A.Võrk, M.Piirits and R. I. Gall, Analysis of the standardized Pan
European Personal Pension (PEPP) product and its impact on four European countries: the
Netherlands, Estonia, Finland and Hungary, NETSPAR, November 2015, M33.
23. 23
L. van der Vaart, H. van Meerten, De pensioen opPEPPer?, TPV 2017/44, december 2017.
L.H. Blom, PEPP vult nationale pensioenstelstels aan, maar verstoort deze ook, TPV 2018/2,
februari 2018.
E. Schmidt, H. van Meerten, De woekerpoliszaak: Een kwestie van interpretatie?,
Pensioenmagazine, augustus/september 2015, p. 19-23.
O. van Zadelhof en H. van Meerten, De PPI en de dga. Kan het echt niet? P&P, nr5., 2013, p. 25-
26 (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2387463)
EY (final report), Study on the feasibility of a pan European personal framework, June 2017,
FISMA/2015/146(02)D (https://ec.europa.eu/info/sites/info/files/170629-personal-pensions-
study_en.pdf)
Internet sources (last visited on 19-4-2018)
• Pensioenfederatie
https://www.pensioenfederatie.nl/website/themas/europa/pan-european-personal-
pension-product
• Verbond van Verzekeraars
https://www.verzekeraars.nl/publicaties/actueel/verbond-en-ppi-s-shoprecht-bij-
persoonlijk-europees-pensioenproduct
• Sophia in ’t Veld, draft report PEPP: https://vbngb.eu/wp-content/uploads/2018/04/Pan-
European-Pension-PEPP-201803-EPRS_IDA2018615656_EN.pdf
• DNB: http://www.toezicht.dnb.nl/3/50-227812.jsp
Cases:
Case C-76/90 Säger v Dennemeyer
Case C-49/89 Corsica Ferries France v Direction Générale des douanes
Case C-115/97-C117/97 Albany, Brentjens’ Handelsonderneming v Stichting
Bedrifjstakpensioenfonds voor de handel in Bouwmaterialen
Case C-219/97 Maatschappij Drijvende Bokken BV v Stichting voor Vervoer-en Havenbedrijven
Case C-437/09 AG2R Prévoyance v Beaudout Père et fils
24. 24
Case C-438/05 Viking
Case C-271/08 Commission v Germany
Case C-360/07 Kattner Stahlbau GmbH v Maschinenbau-und metall Berufgenossenschaft
Case C-25/14 UNIS