1. The IORP Directive:
The EU Treaty and case law:
respecting the basics
Prof.dr. Hans van Meerten
26 May 2015
Chair EU Pension Law
ECON Public Hearing IORPs

2. Van Gend en Loos, 26/62
“The European Economic Community
constitutes a new legal order of
international law for the benefit of which the
states have limited their sovereign rights,
albeit within limited fields, and the subjects
of which comprise not only the Member
States but also their nationals.” 2

3. EU competition rules apply
• C-67/96, Albany
“ A pension fund charged with the
management of a supplementary
pension scheme (…) is an undertaking
within the meaning of Article 85 et seq.
of the Treaty” 3

4. Freedom of services apply
• 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.” 4

5. Article 56 TFEU applies to IORPs!
•C-678/11, point 38
“It must also be stated that, from the perspective of the single
market, and in order to enable the objectives of that market to
be attained, Article 56 TFEU precludes the application of any
national rules that have the effect of making the provision of
services, within the meaning of Article 57 TFEU, between
Member States more difficult than the purely internal provision
of services within one Member State”
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6. The Court introduces state liability
•C-398/11, Hogan
”Directive 2008/94 must be interpreted as meaning that the
fact that the measures taken by Ireland subsequent to Robins
and Others have not brought about the result that the
plaintiffs would receive in excess of 49% of the value of their
accrued old-age pension benefits under their occupational
pension scheme is in itself a serious breach of that Member
State’s obligations.”
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7. Pensions and the CMU
“…removing obstacles to cross-
border access could potentially
strengthen the single market in
personal pension provision”
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8. Solvency II, Article 304:
“the activities of the
undertaking related (…) are
pursued only in the Member
State where the undertaking
has been authorized.”
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9. Lessons?
• Harmonise capital requirements in
order to prevent regulatory arbitrage;
• IORP Directive should make it easier,
not harder to be cross border active;
• Make a workable distinction between
cross border/no-cross border?
• A EU Pensions Union
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