Hans van Meerten

The Proposals for the European Supervisory Authorities: The Right (Legal) Way Forward?

This article deals with the proposals that have been presented by the European Commission in September 2009. These proposals aim to improve the supervision of (multi-jurisdictional) financial undertakings in the EU. We first shortly addresses some elements of the current state of affairs regarding financial services and supervision. What are the main EU-legal characteristics of the supervisory framework? What are its shortcomings (chapter 2)? Subsequently, we discuss the proposals that the European Commission and European Council have presented to further harmonise the financial supervision between the Member States (chapter 3). The EU proposes to establish three new European Supervisory Authorities (ESAs) and a so-called European Systemic Risk Board (ESRB). The ESAs will replace the so-called level 3 committees (see below).The fourth chapter will be the main chapter of this article. The originality of this contribution will be to examine to what extent the proposed European system of supervision actually fits into the current EU Treaty legal framework and into its successor, the Treaty of Lisbon. We will focus on two legal issues: 1) can the proposed legal basis for the ESAs (art. 95 EC) be justified and 2) can the future European Supervisory Authorities be entrusted with the envisaged powers? The fifth chapter concludes and contains some recommendations.

A European Pensions Union

A lack of European integration is keeping the markets closed off and, as a result, opportunities for growth and improvement in the Dutch and European pension and labour markets are not being sufficiently harnessed. We see developments that are laying the foundations for what we would like to call a European Pension Union. We will discuss these foundations in this contribution.

A European pensions union: Towards a strengthening of the European pension systems

This contribution will especially address the EC’s general policy in respect of the IORP II Proposal, also in connection with general more recent EU law developments, and its consequences for the pension systems of the EU Member States, with a focus on the occupational pension system of the Netherlands.

Regulating Pensions: Why the European Union Matters

This discussion paper explores how EU law affects national pensions systems, be it directly (by regulating pensions explicitly) or indirectly (by providing a regulatory framework that must be respected in the field of pensions as well as in other fields). Moreover, the focus will be on some fundamental questions: what should be the scope of the IORP directive? Which pension funds and schemes should be subject to it? How do we overcome the political dilemmas when regulating pensions? (Part of the paper appeared in book form in 2012.)

The Solvency II Directive: An Innovative New Regime

This article deals with the new supervisory regime for insurance companies: the Solvency II Directive. We discuss the contents, merits and background of the Solvency II framework, which is a clear improvement on the current regime.

The Legal Differences between CIDC and CDC

Both Collective Defined Contribution (CDC) and Collective Individual Defined Contribution (CIDC) schemes place any risks on pension scheme members instead of an external risk-bearer. In CDC schemes, assets are pooled collectively, allowing for risks to be shared between pension scheme members. In Individual DC schemes (IDC), the scheme members bear such risks individually. But CDC’s collective nature leaves little room for individual risk management and the pension assets are allocated to scheme members via rules that are often complex and ambiguous. CIDC schemes strive to retain the desirable aspects of CDC and IDC schemes, while improving on some of the drawbacks. The drawbacks of a CDC scheme are mitigated by the introduction of 1) individually quantifiable pension pots through individual accounts, 2) individual risk management and 3) a simplified scheme. The drawbacks of an IDC scheme are mitigated by 1) mandatory participation, 2) collective management of assets, and 3) sharing of risks. It therefore seems that CIDC schemes have a number of important advantages over CDC schemes. CIDC scheme members should be clearly informed of their legal position vis-a-vis their employer and pension provider, and the contract should clearly define the risks. Scheme members appear to benefit from individual risk management and individually identifiable pension pots, while employers and/or pension providers seem relieved from risks and enjoy the security of fixed pension contributions. The possibility to take out a lump sum seems contrary to the collective sharing of risks in both CIDC and CDC schemes.

Compulsory Membership of Pension Schemes and the Free Movement of Services in the EU

Mandatory pension participation in the Netherlands is currently under review. This article examines the manner in which the system of mandatory participation in sectoral pension funds is presently organised as well as future proposals from the perspective of the freedom to provide services. It also briefly reviews mandatory participation in Belgium, Denmark, Germany, France and Sweden and asks whether it constitutes a barrier to the freedom enshrined in Article 56 TFEU. Restrictions of this freedom in the field of mandatory participation are too easily excused in the Netherlands by pointing to decisions by the European Court of Justice (ECJ) in which it judged the system to be permissible. These decisions, however, were made from the perspective of competition law, and not on the basis of Article 56 TFEU. Grounds for justifying restrictions to this freedom exist, although different justifications are available for direct and indirect discrimination. The article questions how mandatory participation in the Member States considered in this article fare from this perspective?

Hervorming Pensioenstelsel: Degressieve Opbouw in Uitkeringsovereenkomsten En Vlakke Premies in Premieovereenkomsten (Reforming Pensions: Accrual in DB and DC)

Dutch Abstract: Ons pensioenstelsel moet veranderen. Het is niet meer van deze tijd. Ook de doorsneesystematiek dient te wijzigen: deze is nu in het voordeel van oudere werknemers. De doorsneesys- tematiek bestaat uit de doorsneepremie en de doorsneeopbouw: een voor ieder gelijk percentage. De regering wil de doorsnee- opbouw vervangen door de zogeheten degressieve opbouw: je pensioenaanspraak neemt af met de jaren. Sommige juristen menen dat degressieve opbouw in strijd is met EU-recht. Het zou in strijd zijn met gelijkebehandelingswetgeving. In dit artikel wordt betoogd dat dit onjuist is. English Abstract: The Dutch pension system needs to change. The system is now in favor of older employees. The system consists of the average premium and the average build-up. The government wants to replace this construction by the so-called degressive structure: retirement benefits decreases over the years. Some lawyers believe that degressive construction is in violation of EU law. It would be contrary to equal treatment legislation. This article argues that this is incorrect.

Compulsory membership of pension schemes and the free movement of services in the EU

Mandatory pension participation in the Netherlands is currently under review. This article examines the manner in which the system of mandatory participation in sectoral pension funds is presently organised as well as future proposals from the perspective of the freedom to provide services. It also briefly reviews mandatory participation in Belgium, Denmark, Germany, France and Sweden and asks whether it constitutes a barrier to the freedom enshrined in Article 56 TFEU. Restrictions of this freedom in the field of mandatory participation are too easily excused in the Netherlands by pointing to decisions by the European Court of Justice (ECJ) in which it judged the system to be permissible. These decisions, however, were made from the perspective of competition law, and not on the basis of Article 56 TFEU. Grounds for justifying restrictions to this freedom exist, although different justifications are available for direct and indirect discrimination. The article questions how mandatory participation in the Member States considered in this article fare from this perspective?

Pension Rights and Entitlement Conversion (‘Invaren’): Lessons from a Dutch Perspective with Regard to the Implications of the EU Charter

This article discusses issues regarding ‘conversion’, in particular the transformation of second pillar pension rights and entitlements. It considers the different European law regimes that are an influence on conversion, namely EU law and the law regarding the European Convention on Human Rights (hereinafter ECHR). The central question here is: would the outcome be different when conversion is tested under EU law and the Charter of Fundamental Rights of the EU (hereinafter ‘the Charter’) rather than under ECHR law? The answer seems to be ‘yes’. This article demonstrates that EU law and the Charter may offer the pensioner different and possibly more extensive protection, inter alia, against governmental measures than the ECHR. EU law may also have a direct horizontal effect, 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 different outcomes. More generally, an alleged breach of Article 17 of the Charter must also be reviewed in the light of the EUs economic and social objectives. These objectives are not, as such, part of the ECHR. It is difficult to predict whether a claim, based on Article 17 by an individual against a Member State and/or a relevant pension fund would be successful. Infringement of pension entitlements has not yet been tested against the Charter.