Officials say that they expect between 50-80% of member states to have notified them of full implementation of the IOPR directive by the cut-off date. At the time of publication, only five member states - Germany, Ireland, UK, Sweden and Denmark - have claimed to have implemented the new legislation in its entirety.
One or two member states have also indicated that they have partially implemented the directive – meaning that they may have put in place the necessary primary legislation, but have not yet introduced the underlying technical protocols. The Commission makes it clear that partial implementation of the directive will be treated exactly the same as non-implementation.
A spokesman for internal market commissioner, Charlie McCreevy, said that it was too early to say whether this disappointing level of notification means that most member states will not be ready by 23 September . “All we can say is that we are working closely with member states and expect them to fully comply with the deadline,” he said.
He added that “there do appear to be certain difficulties here and there in the implementation process”, but said that it was not helpful to censure prematurely those member states that have not yet complied. “Even at this late stage, we feel that things can still be sorted out,” he said.
Some member states that fail to meet the deadline may simply have forgotten to send in their notification on time, in which case a gentle nudge from the Commission should be enough to remind them. For others, such a failure to implement the directive by the target date may reflect a deeper underlying problem that they are having in getting to grips with the new law.
It is worth pointing out that notification of implementation does not necessarily mean that all rules have been applied as they should.
Commission sources fully expect all member states to notify it of the directive’s implementation, even if there is some delay, but they do not think that all member states will have implemented it adequately.
It is difficult for the Commission to see, at this stage, exactly which member states are likely to have introduced national IORP laws that will be considered as insufficient by the EU. However, during the course of the year, the Commission, which has been offering support to member states that need it, has observed some specific problems coming to light in certain countries.
Particular difficulties have been seen in those member states who joined in May 2004. They were not at the negotiating table when the EU drew up the original IORP proposal in 2003, and therefore have had more trouble getting to grips with the technical detail of it. Many of them also started transposing it into national legislation a little later than the older EU countries.
On top of this, some of the concepts that exist in the established 15 member states are not always found in the countries of eastern Europe.
For example, the Czech Republic is one of the few EU countries that does not currently have any IORPs, although it still has to implement all clauses of the directive in case an IORP from elsewhere wants to establish itself in the country. Being unfamiliar with IORPs has presented something of a challenge to implementing the directive, due to a lackof expertise with the institutions in question. As one senior EU official pointed out, it is much harder to understand exactly what the properties of an IORP are if one has never had to deal with them before.
Poland has flagged a similar problem that is even more prevalent in eastern European countries. The country only makes use of defined contribution, as opposed to defined benefit (DB) pension schemes. Being unfamiliar with DB schemes makes it much harder to implement satisfactorily some key clauses of the directive.
But it is not just newer member states that have been experiencing problems with the directive. Some of the older countries have been having problems, too. For example, there remains some confusion in France about whether the country has any institutions that fall under the category of IORP.
Yves Stevens, professor of social law at the Catholic University of Leuven, who is currently looking into the transposition of the IORP directive, said that he did not think it was possible to make any general remarks about the implementation of the directive at the moment, but said that the problems coming to light were specific to the situation of individual member states.
One of the main sticking points in the implementation of the directive, according to EU sources, is likely to be Article 20, which deals with the thorny issue of ‘national social and labour legislation’, something that is not always easy to pin down. The opening paragraph of this article makes it clear that social legislation should remain the exclusive competence of the member state, and IORPs established in the country should not affect this right.
However, as Stevens points out, there remains some confusion in many member states over what constitutes national social and labour law in the context of the directive. Last November, at the request of the European Association of Paritarian Institutions (AEIP), Stevens completed a study looking into this, which recommended that member states should remain in control of their social security systems, but that they should not be allowed to define their social and labour law so widely that they effectively blocked adequate implementation of the directive.
A follow-up study that looks more specifically at the situation in certain member states - Belgium, the Netherlands, Germany, Finland, Italy and France - is due to be completed in October, so that it can take account of the updated situation in all countries. Stevens would not be drawn on any early conclusions from the study, but said that the problems it was likely to highlight would reflect localised difficulties in member states and not signify an overall problem of the IORP directive.
As the deadline draws closer, the activity of the 25 member states in getting the IORP directive on to statute books still seems lethargic, with only the five governments having formally notified the EU of full implementation of the legislation. However, in its public statements, the Commission remains optimistic that there will be a rush of notifications that will see everything slot into place.
It seems unlikely that everyone will notify in time, though, and the most reliable estimates suggest that between a fifth and a half will miss the deadline. Even so, the Commission is not too worried about this, because it feels that all member states will eventually come on board. What troubles the European legislator somewhat more is the possibility that those member states which claim to have implemented the EU edict will not have done so in full. That is something that will be far harder to monitor, and will take the IORP discussions well beyond the magical 23rd.

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