Pension Rights and Entitlement Conversion (‘Invaren’): Lessons from a Dutch Perspective with Regard to the Implications of the EU Charter
| Author | Pascal Borsjé,Hans Van Meerten |
| Date | 01 March 2016 |
| DOI | 10.1177/138826271601800103 |
| Published date | 01 March 2016 |
| Subject Matter | Article |
46 Intersentia
PENSION RIGHTS AND ENTITLEMENT
CONVERSION (‘INVAREN’): LESSONS FROM
A DUTCH PERSPECTIVE WITH REGARD TO
THE IMPLICATIONS OF THE EU CHARTER
H V M and P B*
Abstract
is article discusses issues regarding ‘conversion’, in particular the transformation of
second pillar pension rights and entitlements. It considers the di erent European law
regimes that are an in uence on conversion, namely EU law and the law regarding
the European Convention on Human Rights (hereina er ECHR). e central question
here is: would the outcome be di erent when conversion is tested under EU law and th e
Charter of Fundamental Rights of the EU (he reina er ‘the Charter’) rather than under
ECHR law? e answe r seems to be ‘yes’.
i s article demonstrates that EU law and the Charter may o er the pensioner di erent
and possibly more extensive protection, inter ali a, against governmental measures than
the ECHR. EU law may also have a direct horizontal e ect, i.e. the article might be
invoked directly against a pension fund . In addition, the test of fundamental rights in
the Charter and the ECHR may have entirely di erent outcomes. More generally, an
alleged breach of Article17 of the Charter mu st also be reviewed in the light of the EU’s
economic and social objectives. ese objectives are not, as such, part of the ECHR.
It is di cult to predict whether a claim, based on Article17 by an individual against
a Member State and/or a relevant pension fund would be successful. Infringement of
pension entitlements ha s not yet been tested against the Charter.
Keywords: conversion; direct e ect, EU, ECHR, IORP; pensions, pension rights,
pension entitlements, right to propert y.
* Professor Hans va n Meerten is a lawyer at Cli ord Chance LLP in Am sterdam and Professor of
EU Pension law at Utrecht Universit y. Address: Achter Sint Pieter 20 0, 3512 HT, Utrecht, e
Netherlands; phone : +31 654 913289; e-mail: h.van meerten@uu.nl. Mr. Pasca l Borsjé is a lawyer at
Cli ord Chance LL P in Amsterda m. Address: Dro ogbak 1A, 1013 GE, Amste rdam, e Net herlands;
phone: +31 20 7119698; e-mail: pascal .borsje@cli ordchance .com. is articl e is an amended and
extended version of an a rticle published in D utch: ( M, 2014).
Pension Rights an d Entitlement Conversion (‘invaren’)
European Jour nal of Social Sec urity, Volume 18 (2016), No. 1 47
1. INTRODUCTION
e increasing ageing of European populations has been a concern of national
governments in relation to pensions.1 It has been known for many years that the
number of pension bene ciaries is increasing at a higher rate than the economica lly
active population required to fund the pension bene ts.2 at puts severe pres sure on
the public nances and the a ordability of pensions. At European Union (EU) level,
concerns about, on the one hand, the futu re a ordabilit y of the pension systems and,
on the other, the ex ibility of labour markets (with pensions being par t of the internal
market) have been the focus of much attention.3
It should be noted that the forms of retirement provisions vary greatly from one
EU Member State to another, but most Member States have three main categories of
pension schemes: socia l security scheme s (‘ rst pillar’), occ upational schemes (‘second
pillar’) and individual supplementary schemes (‘third pilla r’). is article discusses
issues relating to ‘conversion’, i.e. to the transformation of,in partic ular, second pillar
pension rights and entitlements (for a more precise de nition, see paragraph 2.2
below). We discuss the d i erent European l aw regimes that i n uence conversion: EU
law and the law regarding the European Convention on Human Rights (hereina er
‘ECHR’). e central question here is: would the outcome be di erent when conversion
is tested under EU law and the Cha rter of Fundamental Rights of t he EU (hereina er
‘the Charter’)4 rat her than under ECHR law?
is article raises further quest ions that may have an impact on the practica l
implementation of a conversion of pension rights. e purpose of the article is not
to give de nitive answers on what t he outcome of a test against the provisions of the
Charter would be, but rather to provide t he reader with a few thought-provoking
insights in order to provoke discussion and promote fu rther investigation of th is
subject. Whether testing against the Charter would lead to a di erent outcome than
testing against the ECHR is not the central question here. In this article the issue is
whether it might lea d to a di erent outcome and therefore whether the implications of
the Charter should be ta ken into account if the domestic pension reforms are rev iewed
from a legal perspective.
Finally, although th is article investigates this subject f rom a predominantly Dutch
perspective, the rea soning contains some valuable less ons for other EU Member States
that have seemingly not included the potential implications of EU law and/or the
Charter in the lega l assessment of their national pension reforms.
1 e E C (2015) stated in e 2015 Ageing Report, available at htt p://ec.europa.eu/
economy_ nance/publications/europea n_economy/2015/pdf/ee3_en.pd f, that ‘ e demog raphic
old-age dependency rat io set to nearly double over the long-ter m’.
2 Cf. E C (2009).
3 See for example: E C (2010). For recent EU developments, see B
M (2015).
4 Charter of Fund amental Rights of t he European Union (2012) OJ C326.
To continue reading
Request your trial