Free movement of workers in the EU and occupational pensions

AuthorMarion Del Sol,Marco Rocca
DOI10.1177/1388262717711776
Published date01 June 2017
Date01 June 2017
Subject MatterArticles
Article
Free movement of workers
in the EU and occupational
pensions: conflicting
priorities? Between case law
and legislative interventions
Marion Del Sol
IODE, University of Rennes 1, France
Marco Rocca
University of Louvain, Louvain-la-Neuve, Belgium
Abstract
The European Union appears to be promoting at the same time both cross-national mobility of
workers and an increased role for occupational pensions. There is, however, a potential tension
between these two objectives because workers risk losing (some of) their pension rights under an
occupational scheme as a consequence of their mobility. After long negotiations, the EU has
addressed this issue through a minimum standards Directive. Shortly before the adoption of
this Directive, the Court of Justice also delivered an important decision in the same field, in the
case of Casteels v British Airways. By analysing the resulting legal framework for safeguarding
pension rights under occupational schemes in the context of workers’ mobility, we argue that the
application of the case law developed by the Court of Justice in the field of free movement of
workers has the potential to offer superior protection compared to the Directive. We also
highlight the fact that the present legal framework seems to afford a much fuller protection to
the intra-company cross-national mobility of workers employed by multinational companies, while
also seemingly favouring mobility for highly specialised workers.
Keywords
complementary pensions, free movement of workers, Directive 2014/50, pension portability,
Casteels
Corresponding author:
Dr Marco Rocca, University of Louvain, Louvain-la-Neuve, Belgium.
E-mail: marco.rocca@uclouvain.be
European Journal of Social Security
2017, Vol. 19(2) 141–157
ªThe Author(s) 2017
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DOI: 10.1177/1388262717711776
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Introduction
This article explores the interaction between two areas of intervention of the European Union (EU)
namely the free movement of workers and occupational pensions. The former is a well-known (and
developed) area of EU law, forming one of the fundamental pillars upon which the European
construction has been built. The latter area has been growing in importance particularly over the
last twenty years, although this has mainly been due to its ‘financial’ aspects.
1
As we show in this
Introduction, different policies of the EU are now explicitly aimed at increasing both mobility and
the use of occupational pensions. We argue, however, that promoting both workers’ mobility and
the use of occupational pensions necessarily engenders a tension that the EU has only recently
started to address.
The aim of this article is to explore this tension. By comparing the case law of the Court of
Justice on free movement of workers with the (relatively) recent Directive 2014/50 on the min-
imum requirements for enhancing worker mobility between Member States by improving the
acquisition and preservation of supplementary pension rights, we highlight the different protec-
tions offered by these two sets of instruments. In doing so we also consider the potential for a
mutually reinforcing dialogue (or for a conflict) between the two. Furthermore, we assess the kind
of ‘mobility’ implicitly envisaged by the present state of EU law, which appears to provide
incentives only to certain kind of international mobility.
In this article, we refer to concepts, such as ‘waiting period’
2
and ‘vesting period’
3
, which are
relevant for the specific issue of t he interaction between workers’ mobility and occupation al
pensions. Definitions of these concepts are provided by Directive 2014/50. The ‘portability’ of
occupational pensions was, in its turn, defined by the 2005 proposal
4
as ‘the option open to workers
of acquiring and retaining pension rights when exercising their right to freedom of movement or
occupational mobility’.
5
Finally, we deviate slightly from the terminology of Directive 2014/50 by
using the concept of ‘occupational pensions’ in lieu of ‘supplementary pensions’. The meaning,
however, should be understood to be identical.
The article is structured as follows. In the rest of this Introduction we present the two potentially
conflictingaims pursued by the EU, namelypromoting workers’ mobilityand occupational pensions.
In Section 2 we provide a brief account of Directive 2014/50, which also covers the protracted
negotiations which ultimately led to its adoption. Section 3 deals with the interaction between the
case law of the Court of Justice on free movement of workers (including the situation of frontier
workers) and occupational pensions. We also look to the role of multinational companies and pan-
European pension schemes in underpinning workers’ mobility. In Section 4 we draw some
1. As opposed to the more ‘social’ one. See on this point the Opinion of the European Economic and Social Committee on
the ‘Proposal for a Directive of the European Parliament and of the Council on the activities and supervision of
institutions for occupational retirement provision’ COM(2014) 167 final: ‘The EESC disagrees with the approach to
IORPs purely as financial market institutions, which fails to acknowledge and respect their specific circumstances.
IORPs are institutions which perform an important social function’.
2. Directive 2014/50/EU of the European Parliament and of the Council of 16 April 2014 on minimum requirements for
enhancing worker mobility between Member States by improving the acquisition and preservation of supplementary
pension rights, Article 3.
3. Ibidem.
4. Proposal for a Directive of the European Parliament and of the Council on improving the portability of supplementary
pension rights, COM/2005/0507 final.
5. Ibidem, Article 3.
142 European Journal of Social Security 19(2)

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