European Union (Occupational Pension Schemes) Regulations 2021

• Jurisdiction: Ireland
• Citation: IR SI 128/2021
• Year: 2021

Notice of the making of this Statutory Instrument was published in

“Iris Oifigiúil” of 30th April, 2021.

I, HEATHER HUMPHREYS, Minister for Social Protection, in exercise of the powers conferred on me by section 3 of the European Communities Act 1972 (No. 27 of 1972) and for the purpose of giving effect to Directive (EU) 2016/2341 of the European Parliament and of the Council of 14 December 20161 , hereby make the following regulations:

Part 1

Preliminary and General

Citation

1. These Regulations may be cited as the European Union (Occupational Pension Schemes) Regulations 2021.

Interpretation

2. (1) In these Regulations –

“Directive” means Directive (EU) 2016/2341 of the European Parliament and of the Council of 14 December 20161 ;

“enactment” has the meaning assigned to it by the Interpretation Act 2005 (No. 2005);

“Principal Act” means the Pensions Act 1990 (No. 25 of 1990).

(2) A word or expression that is used in these Regulations (or in any enactment amended by these Regulations) and is also used in the Directive shall, unless the context otherwise requires, have the same meaning in these Regulations (or that enactment) as it has in the Directive.

Application of Regulations

3. These Regulations shall apply to a scheme or trust RAC within the meaning of the Principal Act other than any such scheme or trust RAC that is a scheme or trust RAC to which Article 2(2) of the Directive applies.

Part 2

Amendment of Principal Act

Amendment of section 2 of Principal Act

4. (1) Section 2 of the Principal Act is amended in subsection (1) by –

(a) the insertion of the following definitions:

“ ‘competent authority’ means –

(a) in relation to the State, the Pensions Authority, and

(b) in relation to another Member State, the competent authority designated by that Member State to perform the functions of the competent authority under the Directive of 2016 for that Member State;

‘Directive of 2016’ means Directive (EU) 2016/23411 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);

‘EIOPA’ means the European Insurance and Occupational Pensions Authority established by Regulation (EU) No. 1094/2010 of the European Parliament and of the Council2 ;

‘enactment’ has the same meaning as it has in the Interpretation Act 2005 ;”

‘External Report’ shall be construed in accordance with section 26N;

‘External Report reviewer’ shall be construed in accordance with section 26O;

‘key function holder’ has the meaning assigned to it by section 64AA;

‘prudential supervision’ shall be construed in accordance with Part IIA;”,

(b) by the substitution of the following definition for the definition of “Member State”:

“ ‘Member State’ means –

(a) a Member State of the European Union, other than the State, and

(b) not being such a Member State, a state which is a contracting party to the Agreement on the European Economic Area signed at Oporto on 2 May 1992 as adjusted by the Protocol signed at Brussels on 17 March 1993;”,

(c) by the substitution of the following definition for the definition of “one-member arrangement”:

“ ‘one-member arrangement’ means –

(a) a scheme which is established solely for one person and for that person permanently to be the sole member and that member has discretion in respect of the manner in which the resources of that scheme are invested,

(b) a trust RAC which is established solely for one person and for that person permanently to the sole member and that member has discretion in respect of the manner in which the resources of that trust RAC are invested, or

(c) a scheme referred to in paragraph (a) or a trust RAC referred to in paragraph (b) which is the subject of a pension adjustment order and which, pursuant to that order, includes, in addition to the member referred to in paragraph (a), or as the case may be paragraph (b), a person referred to in that order;”, and

(d) in the definition of “outsourcing arrangement”, by substituting “shall, other than in Parts VIB and IIA, be construed accordingly” for “shall be construed accordingly”.

(2) Section 2 of the Principal Act is amended by the insertion of the following subsections after subsection (5):

“(6) A reference to the Directive or a reference to any Article or sub-Article of that Directive shall be construed as a reference to the Directive of 2016 and shall be read in accordance with the correlation table in Annex II of that Directive (EU).

(7) A word or expression that is used in this Act as amended by the European Union (Occupational Pension Schemes) Regulations 2021 has, unless the contrary intention appears, the same meaning in this Act as so amended, as it has in the Directive of 2016.

(8) References in this Act to the provision of information by a trustee to a member or a beneficiary shall, unless otherwise specified in another Part or section of this Act, be construed as including references to the provision of the information to a member or a beneficiary by means of any electronic method.”.

Amendment of section 3 of Principal Act

5. Section 3 of the Principal Act is amended –

(a) in subsection (1) by the insertion of the following paragraph after paragraph (c):

“(ca) In a prosecution for an offence under paragraph (a) insofar as it relates to a contravention of a provision of Part VIB, it shall be a defence for a trustee of a scheme or trust RAC or a person who is, or was, a key function holder against whom the proceedings are brought to prove that he or she took all reasonable steps and exercised all due diligence to avoid the commission of the offence.”, and

(b) by the insertion of the following new subsection after subsection (3A):

“(3B) A person who obstructs or impedes an External Report reviewer in the preparation of an External Report shall be guilty of an offence.”.

Amendment of section 3A of Principal Act

6. Section 3A of the Principal Act is amended in subsection (1A), in paragraph (a), by the insertion of “26T,” after “25,”.

Amendment of section 10 of Principal Act

7. Section 10 of the Principal Act is amended –

(a) in subsection (1) by the insertion of the following paragraphs after paragraph (fa):

“(fb) to be the competent authority in the State for the purposes of the Directive of 2016,

(fc) for the purposes of paragraph (fb), to perform the functions of the competent authority in the State for the purposes of the Directive of 2016,”, and

(b) by the insertion of the following subsection after subsection (1):

“(1A) Without prejudice to subsection (1), the Pensions Authority shall carry out the prudential supervision under Part IIA in order to protect the rights of members and beneficiaries, and ensure the stability and soundness, of schemes and trust RACs.”.

Amendment of section 18 of Principal Act

8. Section 18 of the Principal Act is amended –

(a) in subsection (3) by the insertion of “or section 26V(8)” after “by this section”, and

(b) in subsection (6), by the insertion of the following paragraph after paragraph (a):

“(aa) in relation to a scheme or trust RAC, any person who –

(i) is a key function holder, or

(ii) is a service provider referred to in section 64AM and who has entered into an arrangement referred to in that section,

for that scheme or trust RAC,”.

Part 3

Chapter 1

Small scheme and one-member arrangements

Amendment of section 53F of Principal Act

9. (1) Section 53F of the Principal Act is amended by –

(a) the designation of the section as subsection (1),

(b) the deletion of paragraph (d), and

(c) the insertion of the following subsection after subsection (1):

“(2) Notwithstanding the amendment of this section by the European Union (Occupational Pension Schemes) Regulations 2021 (S.I. No. 128 of 2021), as respects a one-member arrangement established before the coming into operation of those Regulations, the provisions of this section shall only on and from the expiry of 5 years from the date of the coming into operation of those Regulations apply to such one-member arrangement.”.

Amendment of section 54 of Principal Act

10. (1) Section 54 of the Principal Act is amended by –

(a) the deletion of subsection (7), and

(b) the insertion of the following subsection after subsection (7):

“(8) Notwithstanding the amendment of this section by the European Union (Occupational Pension Schemes) Regulations 2021, a small trust RAC to which subsection (7) applied immediately before the coming into operation of those Regulations shall comply with this section not later than 31 December 2021.”.

Amendment of section 55 of Principal Act

11. Section 55 of the Principal Act is amended –

(a) in subsection (1A), by the deletion of “(other than a one-member arrangement or a small trust RAC which is not a regulatory own funds trust RAC)”,

(b) in subsection (2), by the deletion of paragraph (d), and

(c) by the insertion, after subsection (7), of the following subsection:

“(8) Notwithstanding the amendment of this section by the European Union (Occupational Pension Schemes) Regulations 2021 –

(a) a small trust RAC to which the exemption in subsection (1A) applied before the day on which those Regulations come into operation, shall make the appointment referred to in subsection (1A) not later than 31 December 2021,

(b) a one-member arrangement to which the exemption in subsection (1A) applied before the day on which those Regulations come into operation, this section shall only on and from the expiry of 5 years from the date of such coming into operation, apply to such one-member arrangement, and

(c) for the purposes of the preparation of the first annual report following the coming into operation of those Regulations –

(i) in the case of a small trust RAC referred to in paragraph (a), the first annual report shall be prepared in respect of a year...