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Lawyer contests stricter Dutch rules for cross-border pension transfers

The Atomium in Brussels. Credit: Waldo Miguez

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The Dutch cabinet’s decision to set stricter conditions to collective cross-border pension scheme transfers is in conflict with European rules, Hans van Meerten, professor of European pension law at Utrecht University, has claimed.

Talking to IPE’s Dutch sister publication Pensioen Pro, Van Meerten questioned the decision by Wouter Koolmees, the minister for social affairs, to raise the bar for schemes seeking to move outside of the Netherlands.

Under the updated rules — brought in as part of the Netherlands’ implementation of IORP II — a cross-border collective value transfer from the Netherlands can only go ahead if two-thirds of a pension fund’s participants agree.

Prior to this, only the approval of a scheme’s accountability board was needed.

Koolmees’ amendment was prompted by MPs who noted that the funding ratio of Aon’s Dutch pension fund had increased significantly after relocating to Belgium, and had objected to what they described as “supervisory arbitrage”.

Answering questions from Steven Weyenberg, MP for the liberal democrats D66, Koolmees had argued that the amendment was allowed by the Treaty on the Functioning of the European Union, which stipulated that more than one member state had to be involved for free movement of services and capital.

Van Meerten, however, contested the minister’s argument.

The lawyer said he had already informed the government of a recent verdict from the European Court of Justice, which said that such an agreement was not needed.

He said that he had therefore concluded that the same rules should apply for both cross-border and local collective value transfers.

In his opinion, were the government to stick to this distinction, the consequence would be that participants would be able to refer to the same rules to potentially block a value transfer between schemes in the same country.

A spokesman for the minister said that the verdict had to be assessed first before a response was possible.

Since 1 January 2016, €4.3bn of pension assets have moved from the Netherlands to Belgium and Luxembourg.

Recent data from the Belgian regulator indicated that assets from foreign schemes had boosted the country’s total assets by 18%.

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