Commission launches infringement action against 17 states over IORP II

The European Commission has opened infringement cases against 17 EU countries in relation to the transposition of IORP II, the new EU pension fund directive.

The infringement proceedings relate to “non-communication cases”, meaning a member state has failed to communicate measures that fully incorporate into national law the provisions of an EU directive by the transposition deadline.

IPE understands that it is fairly routine for the Commission to initiate such proceedings.

According to its website, so far this year the Commission has made decisions relating to 217 active infringement cases for “non-communication” of transposition measures across all policy areas.

A policy official at one national pension fund association told IPE she was more surprised by the speed at which the Commission had acted in the case of the IORP II directive.

In January the Commission had said it would “carefully examine” how each member state had implemented the directive. The deadline for incorporating IORP II into national law was 13 January.

The infringement proceedings were launched in late March, with the dispatch of a “letter of formal notice” requesting further information. The countries are supposed to send a detailed reply within a specified period, usually two months.

According to the European Commission, as at the beginning of this month, 11 member states had achieved “full transposition status”.

Of the 17 against which infringement procedures have been launched, five had communicated “partial” transposition measures: Bulgaria, Czech Republic, Germany, Latvia and the Netherlands.

A further 12 had not communicated any transposition measures: Cyprus, France, Greece, Ireland, Luxembourg, Malta, Poland, Portugal, Romania, Spain, and Sweden. 

Although Germany’s law to transpose IORP II came into force on the transposition deadline day IPE understands that a regulation was still outstanding as of a couple of weeks ago.

In France, meanwhile, the “loi Pacte”, the legislation paving the way for transposition of IORP II, was definitively adopted in parliament last week. It was already clear last year that the country would not meet the IORP II transposition deadline, with a lawyer telling IPE at the time that the risk of a fine seemed limited if transposition was in effect during 2019.

In Sweden, the implementation of IORP II has been scheduled to take effect in July.

Dutch cross-border questions

IPE’s Dutch sister publication Pensioen Pro asked Commission staff for more information about the infringement case against the Netherlands, but they declined to provide details, citing confidentiality.

Hans van Meerten, pensions lawyer and professor of European pensions law at Utrecht University, said he suspected that the infringement procedure was focused on the additional conditions the Dutch government had set for cross-border bulk transfers.

Last September, the government amended legislation implementing the directive to introduce higher thresholds for the approval of schemes switching jurisdiction, after it emerged that one scheme’s funding level rose by 11 percentage points since its move from the Netherlands to Belgium.

Pieter Omtzigt, MP for the Christian Democrats, received broad support in parliament when he argued that the funding improvement was the result of “supervisory arbitrage”.

Cross-border transfers must now be approved by at least two-thirds of a scheme’s membership.

Wouter Koolmees, the Dutch minister for social affairs, has insisted that the additional condition is not at odds with European legislation.

However, Van Meerten and Erik Lutjens, pensions lawyer and professor of European pensions law at Amsterdam’s Free University, have both suggested that the change was illegal.