The Occupational Pension Schemes (Cross-border Activities) Regulations 2005
2005 No. 3381
PENSIONS
The Occupational Pension Schemes (Cross-border Activities) Regulations 2005
Made 8th December 2005
Laid before Parliament 9th December 2005
Coming into force 30th December 2005
The Secretary of State for Work and Pensions makes the following Regulations in exercise of the powers conferred by sections 287(6), 288, 289(1), (2) and (4), 291(2), 292(1), 293(8), 315(2), (4) and (5) and 318(1) and (4)(a) of the Pensions Act 20041.
These Regulations are made before the end of the period of six months beginning with the coming into force of the provisions of that Act by virtue of which they are made2.
Citation and commencement
1. These Regulations may be cited as the Occupational Pension Schemes (Cross-border Activities) Regulations 2005 and shall come into force on 30th December 2005.
Interpretation
2.—(1) In these Regulations—
“accrued European rights” means—
(a) in relation to a European member of the scheme—
(i) any rights which have accrued to or in respect of that European member to future benefits under the scheme rules, or
(ii) any entitlement to the present payment of a pension or other benefit under the scheme rules,
to the extent that those rights or entitlement result from the periods when that European member was—
(aa) both employed by a European employer and a qualifying person, or
(bb) a qualifying self-employed person, and
(b) in relation to a European survivor, any entitlement to benefits, or right to future benefits, under the scheme rules in respect of a European member to the extent that that right or entitlement results from the periods when that European member was—
(i) both employed by a European employer and a qualifying person, or
(ii) a qualifying self-employed person;
“the Act” means the Pensions Act 20043(unless the context otherwise requires, any reference to a numbered section being to the section so numbered in that Act);
“the 1993 Act” means the Pension Schemes Act 19934;
“the 1995 Act” means the Pensions Act 19955;
“the 1999 Act” means the Welfare Reform and Pensions Act 19996;
“actuarial valuation” shall be construed in accordance with section 224 (actuarial valuations and reports), and includes an actuarial valuation obtained by the trustees or managers of a scheme for any purpose, including that of making an application under section 288 (general authorisation to accept contributions from European employers) or section 289 (approval in relation to particular European employer);
“the commencement date” is the date referred to in regulation 1;
“cross-border scheme” means a scheme which applies to European members or in relation to which there are European survivors;
“the effective date” shall be construed in accordance with section 224(2);
“employment” includes any trade, business, profession, office or vocation and “employed” shall be construed accordingly;
“European employer” has the meaning given in regulation 3(1);
“European member” means a member of a scheme who is, or was,—
(a) a qualifying person in respect of whom contributions were made to the scheme by a European employer, or
(b) a qualifying self-employed person who has made contributions to the scheme;
“European survivor” means a survivor of a European member of the scheme who is entitled to benefits, or has a right to future benefits, under the scheme rules in respect of that European member;
“host member State”, in relation to a European employer, has the meaning given in regulation 3(5);
“multi-employer scheme” shall be construed in accordance with section 307(4)7(modification of this Act in relation to certain categories of schemes);
“new scheme” means a scheme—
(a) which does not have any members—
(i) in relation to whom there are any rights which have accrued to or in respect of the members in question to future benefits under the scheme rules, or
(ii) who have any entitlement to the present payment of a pension or other benefit under the scheme rules, and
(b) in relation to which there are not any survivors of any members of the scheme who are entitled to benefits, or have a right to future benefits, under the scheme rules in respect of those members;
“new section” means a section of a segregated multi-employer scheme—
(a) which does not have any members—
(i) in relation to whom there are any rights which have accrued to or in respect of the members in question to future benefits under the scheme rules, or
(ii) who have any entitlement to the present payment of a pension or other benefit under the scheme rules, and
(b) in relation to which there are not any survivors of any members of the scheme who are entitled to benefits, or have a right to future benefits, under the scheme rules in respect of those members;
“notice of intention” shall be construed in accordance with section 289(1);
“pay-as-you-go scheme” means an occupational pension scheme under which there is no requirement for assets to be set aside in advance for the purpose of providing benefits under the scheme (disregarding any requirements relating to additional voluntary contributions);
“pre-23rd September 2005 scheme” means an occupational pension scheme—
(a) which—
(i) has its main administration in the United Kingdom, and
(ii) is not a pay-as-you-go scheme; and
(b) in relation to which—
(i) the trustees or managers were accepting contributions on 22nd September 2005 from any person who, had section 287(6) been in force at that date, would have been a European employer, or
(ii) any such person was under a liability to pay contributions to the trustees or managers on 22nd September 2005;
“qualifying person” means a person who is employed under a contract of service and whose place of work under that contract is sufficiently located in a member State other than the United Kingdom so that his relationship with his employer is subject to the social and labour law relevant to the field of occupational pension schemes of that member State, but, for the purposes of this definition, a seconded worker is not to be regarded as being so sufficiently located in a member State other than the United Kingdom;
“qualifying self-employed person” means a self-employed person whose place of work is sufficiently located in a member State other than the United Kingdom so that his employment in that member State is subject to the social and labour law relevant to the field of occupational pension schemes of that member State;
“registrable information” shall be construed in accordance with section 60(1) (registrable information);
“scheme” means an occupational pension scheme;
“seconded worker” means a person—
(a) who—
(i) is employed under a contract of service by an employer established in the United Kingdom and whose habitual place of work under that contract is located in the United Kingdom, or
(ii) immediately before the commencement of the period of secondment was employed under a contract of service by an employer established in the United Kingdom and whose habitual place of work under that contract was located in the United Kingdom,
(b) who—
(i) was posted before the commencement date for a limited period which had not expired before that date, or
(ii) is posted on or after the commencement date for a limited period,
to a member State other than the United Kingdom for the purpose of providing services on behalf of his employer, and
(c) who—
(i) at the time when that posting began expected to return to the United Kingdom to work for the employer described in (a)(i) or (ii) after the expiry of that period, or
(ii) expects to retire from employment immediately after the expiry of that period;
“segregated multi-employer scheme” means a multi-employer scheme which is divided into two or more sections where—
(a) any contributions payable to the scheme by an employer in relation to the scheme or by a member are allocated to that employer’s or that member’s section, and
(b) a specified part or proportion of the assets of the scheme is attributable to each section of the scheme and cannot be used for the purposes of any other section;
“statutory funding objective” shall be construed in accordance with section 222 (the statutory funding objective); and
“the survivor” in relation to a member of a scheme means a person who—
(a) is the widow, widower or surviving civil partner of the member, or
(b) has survived that member and has any entitlement to benefit, or right to future benefits under the scheme in respect of that member.
(2) In these Regulations, “employer” in relation to a scheme which has no active members includes every person who was the employer of persons in the description of employment to which the scheme relates immediately before the time at which the scheme ceased to have any active members in relation to it.
(3) Where a scheme is a segregated multi-employer scheme, these Regulations, except regulations 4 to 8, apply as if each section of the scheme were a separate scheme.
Meaning of “European employer” and “host member State” in Part 7 of the Act
3.—(1) Subject to paragraphs (2) to (4), in Part 7 of the Act “European employer” in relation to a scheme means a person who—
(a)
(a) either—
(i) employs qualifying persons, or
(ii) is a qualifying self-employed person, and
is making (or proposes to make) contributions to that scheme either in respect of a qualifying person or in respect of himself as a qualifying self-employed person.
(2) But an employer is not to be regarded as a European employer in relation to any persons whom he employs who are not qualifying persons.
(3) Where—
(a)
(a) the Regulator has approved the trustees or managers of a scheme in relation to a European employer, and
(b)
(b) benefits are, or will become, payable under the scheme rules to or in respect of any member who is or was a qualifying person in relation to that European employer, or to or in...
To continue reading
Request your trial