Occupational Retirement Provision) Regulations, 2006

Suppliment tal-Gazzetta tal-Gvern ta’ Malta, Nru. 17,899, 24 ta’ Marzu, 2006

L.N. 71 of 2006

SPECIAL FUNDS (REGULATION) ACT(CAP. 450)

Special Funds (Regulation) Act

(European Passport Rights for Institutions for

Occupational Retirement Provision) Regulations, 2006

IN exercise of the powers conferred by article 50 of the Special

Funds (Regulation) Act, the Prime Minister and Minister of Finance,

acting on the advice of the Malta Financial Services Authority, has made

the following regulations>

(1) The title of these regulations is the Special Funds Citation and

commencement.

(Regulation) Act (European Passport Rights for Institutions for

Occupational Retirement Provision) Regulations, 2006.

(2) These regulations shall come into force on the 30 th

March, 2006.

(1)

In these regulations, unless the context otherwise Interpretation.

requires>

“the Act” means the Special Funds (Regulation) Act<

“competent authority” means the Malta Financial Services

Authority appointed under article 2 of the Act<

“the Directive” means Directive 2003#41#EC of the European

Parliament and of the Council of the 3 rd June, 2003 on the activities

and supervision of institutions for occupational retirement provision

as may be amended from time to time and includes any

implementing measures that may be issued thereunder<

“EEA State” means a State which is a contracting party to the

agreement on the European Economic Area signed at Oporto on

the 2 nd May, 1992 as amended by the Protocol signed at Brussels

on the 17 th March, 1993 and as amended from time to time<

“European IORP” means an IORP in terms of the Directive

authorized by a European regulatory authority<

“European regulatory authority” means the body or bodies

designated by a Member State or an EEA State other than Malta to

carry out the duties provided for in the Directive<

“home Member State” means Malta where the Maltese IORP

is registered under the Act, or any Member State or EEA State

other than Malta, in which the European IORP has its registered

office and its main administration or, if it does not have a registered

office, its main administration<

“host Member State” means the Member State or EEA State,

including Malta, whose social and labour law relevant to the field

of occupational pensions is applicable to the relationship between

the sponsoring undertaking and employees entitled to retirement

benefits<

“institution for occupational retirement provision” or “IORP”

means an institution, irrespective of its legal form, operating on a

funded basis, established separately from any sponsoring

undertaking or trade for the purpose of providing retirement benefits

in the context of an occupational activity on the basis of an

agreement or a contract agreed>

(a) individually or collectively between any employer

and employee or their respective representatives, or

(b) with self-employed persons, in compliance with

the legislation of the home and host Member States,

and which carries out activities directly arising therefrom<

“Maltese IORP” means an occupational scheme as defined

in article 2 of the Act, registered by the competent authority in

terms of the Act, and which qualifies as an IORP for the purposes

of the Directive<

“Member State” means a Member State of the European

Communities<

“occupational retirement plan” means the contract, agreement

or rules stipulating the retirement benefits and the conditions under

which these are granted, and for the purpose of these regulations,

shall be the “scheme document” in terms of the Act in so far as

Maltese IORPs are concerned<

“sponsoring undertaking” means any undertaking or other

body, regardless of whether it includes or consists of one or more

legal or natural persons, and which may be located in any Member

State or EEA State including Malta, which acts as an employer or

in a self-employed capacity or any combination thereof, and which

pays contributions into an IORP.

(2) Words and expressions which are also used in the Act

shall in these regulations have the same meaning as in the Act.

PART I

MALTESE IORPs RECEIVING CONTRIBUTIONS FROM

SPONSORING UNDERTAKINGS LOCATED IN OTHER

MEMBER STATES or EEA STATES

A Maltese IORP may accept sponsorship in terms of the Sponsorship by

sponsoring

Directive from sponsoring undertakings located within territories undertakings

located within

of Member States or EEA States other than Malta.

territories of

Member States or

EEA States other

than Malta.

A Maltese IORP wishing to accept sponsorship in terms of Notification to the

competent

the Directive by a sponsoring undertaking located within the territory authority.

of a Member State or EEA State other than Malta, shall notify its

intention to accept the sponsorship to the competent authority. The

Maltese IORP, shall notify the competent authority of>

(a)

the host Member State or the host Member States<

(b) the name of the sponsoring undertaking< and

(c) the main characteristics of the occupational retirement

plan to be operated for the sponsoring undertaking.

Where the competent authority has been notified in accordance Communication to

with regulation 4 of these regulations, and unless it has reason to doubt Host Member State.

that the administrative structure or the financial situation of the Maltese

IORP or the good repute and professional qualifications or experience

of the persons running the Maltese IORP are compatible with the

operations proposed in the host Member State, it shall within three

months of receiving all the information referred to in regulation 4 of

these regulations, communicate that information to the European

regulatory authority of the host Member State and inform the Maltese

IORP accordingly.

Before the Maltese IORP starts to operate an occupational

retirement plan for a sponsoring undertaking in a Member State or

EEA State other than Malta, the competent authority shall communicate

to the Maltese IORP any information received from the European

regulatory authority of the host Member State in accordance with Article

20 (5) of the Directive relating to the requirements of social and labour

law relevant to the field of occupational pensions under which the

occupational retirement plan sponsored by the sponsoring undertaking

in the host Member State must be operated and any rules that are to be

applied in accordance with Article 18(7) of the Directive and with

regulation 8 of these regulations.

On receiving the communication referred to in regulation 6 of

these regulations, or if no communication is received from the competent

authority on the expiry of the period provided for in Article 20 (5) of

the Directive, the Maltese IORP may start to operate the occupational

retirement plan sponsored by the sponsoring undertaking in the host

Member State in accordance with the host Member State’s requirements

of social and labour law relevant to the field of occupational pensions,

and any rules that are to be applied in accordance with Article 18 (7) of

the Directive and regulation 8 of these regulations.

In particular, a Maltese IORP sponsored by a sponsoring

undertaking located in a Member State or EEA State other than Malta

shall also be subject, in respect of the corresponding employees entitled

European regulatory

authority of the host

to retirement benefits, to any information requirements imposed by the

European regulatory authority of the host Member State on IORPs

located in that Member State, in accordance with Article 11 of the

Directive.

The European regulatory authority of the host Member State

shall, in accordance with Article 20 (8) of the Directive, inform the

competent authority of any significant change in the host Member State’s

requirements of social and labour law relevant to the field of occupational

pensions which may affect the characteristics of the occupational

retirement plan insofar as it concerns the operation of the occupational

retirement plan sponsored by a sponsoring undertaking in the host

Member State and in any rules that have to be applied in accordance

with Article 18(7) of the Directive and with regulation 8 of these

regulations.

The Maltese IORP shall be subject to ongoing supervision

by the European regulatory authority of the host Member State as to the

compliance of its activities with the host Member State’s requirements

of labour and social law relevant to the field of occupational pensions

referred to in regulation 6 of these regulations and with the information

requirements referred to in regulation 8 of these regulations. Should

this supervision bring irregularities to light, the European regulatory

authority of the host Member State shall inform the competent authority

immediately. The competent authority shall, in coordination with the

European regulatory authority of the host Member State, take the

necessary measures to ensure that the Maltese IORP puts a stop to the

detected breach of social and labour law.

If, despite the measures taken by the competent authority or Breach of

applicable

because appropriate measures are not prevailing in Malta, the Maltese provisions of host

IORP persists in breaching the applicable provisions of the host Member Member

requirements of

State’s requirements of social and labour law relevant to the field of social and labour

occupational pensions, the European regulatory authority of the host law.

Member State may, after informing the competent authority, take

appropriate measures to prevent or penalize further irregularities,

including, insofar as is strictly necessary, preventing the Maltese IORP

from operating in the host Member State for the sponsoring undertaking

located in the host State.

(1) The competent authority may prohibit or restrict the Prohibition or

restriction of the

activities of a Maltese IORP in particular if, in the case of cross-border activities of a

activity as referred to in regulation 3 of these regulations, the Maltese Maltese IORP.

IORP does not respect the requirements of social and labour law of the

host Member State relevant to the field of occupational pensions.

(2) The competent authority may also restrict or prohibit

the free disposal of the assets of the Maltese IORP when, in particular>

(a) the Maltese IORP has failed to establish sufficient

technical provisions, as applicable, in respect of the entire business

or has insufficient assets to cover the technical provisions<

(b) the Maltese IORP has failed to hold the regulatory own

funds, as applicable.

(3) Any decision by the competent authority in terms of

this regulation shall be supported by precise reasons and notified to the

Maltese IORP in question.

(1) In the event of cross-border activity as referred to in Technical funding

regulation 3 of these regulations, the Maltese IORP is required to have requirements.

its technical funding requirements at all times fully funded in respect of

the total range of occupational retirement plans operated by it and article

35 of the Act does not apply.

(2) If these conditions are not met, the competent authority

shall intervene in accordance with regulation 12 of these regulations.

To comply with this requirement the competent authority may require

ring-fencing of the assets and liabilities.

In relation to Maltese IORPs and in accordance with the scope

of these regulations as specified in regulation 23 of these regulations,

the following conditions and different provisions shall apply>

(1) the word “shall” in article 4(1)(b) of the Act shall be

read as if it were substituted by the word “may”<

(2) article 19(1)(a) of the Act shall be read as if it were

substituted by the following - “investing all contributions in accordance

with the terms of the scheme document<”< and

(3) the words “may only” in article 37 of the Act shall be

read as if they were substituted the word “may”.

PART II

SPONSORING UNDERTAKING LOCATED IN MALTA

SPONSORING A EUROPEAN IORP

A sponsoring undertaking located in Malta may sponsor a

European IORP.

in Malta sponsoring

In terms of the Directive, where the European regulatory

authority of the home Member State has been notified by the European

IORP in accordance with Article 20(3) of the Directive, and unless it

has reason to doubt that the administrative structure or the financial

situation of the European IORP or the good repute and professional

qualifications or experience of the persons running the European IORP

are compatible with the operations proposed in Malta, it shall within

three months of receiving all the information referred to in the Directive,

communicate that information to the competent authority and inform

the European IORP accordingly.

(1) Before the European IORP starts to accept sponsorship

from a sponsoring undertaking located in Malta, the competent authority

shall, within two months of receiving the information referred to in

regulation 16 from the European regulatory authority of the home

Member State of the European IORP, inform the said European

regulatory authority, if appropriate of the requirements of social and

labour law relevant to the field of occupational pensions under which

the occupational retirement plan sponsored by a sponsoring undertaking

located in Malta must be operated and any rules that are to be applied

in accordance with Article 18(7) of the Directive and with regulation

19 of these regulations.

(2) In terms of the Directive, the European regulatory

authority of the home Member State shall communicate this information

to the European IORP.

On receiving the communication referred to in regulation 17 Commencement of

operations by a

of these regulations, or if no communication is received from the European IORP.

European regulatory authority of the home Member State on expiry of

the period provided for in the said regulation, the European IORP may

start to operate the occupational retirement plan sponsored by a

sponsoring undertaking located in Malta in accordance with Malta’s

requirements of social and labour law relevant to the field of occupational

pensions, and any rules that are to be applied in accordance with Article

18 (7) of the Directive and regulation 19 of these regulations.

In particular, a European IORP sponsored by a sponsoring Information

requirements

undertaking located in Malta shall also be subject, in respect of the imposed by the

corresponding employees entitled to retirement benefits, to any competent

authority.

information requirements imposed by the competent authority on

Maltese IORPs, in accordance with Article 11 of the Directive.

The competent authority shall inform the European regulatory Notification of

authority in the home Member State of the European IORP of any significant

in requirements of

significant change in Malta’s requirements of social and labour law social and labour

law.

relevant to the field of occupational pensions which may affect the

characteristics of the occupational scheme insofar as it concerns the

operation of the occupational retirement plan and in any rules that

have to be applied in accordance with Article 18(7) of the Directive

and with regulation 19 of these regulations.

The European IORP shall be subject to ongoing supervision Ongoing

supervision.

by the competent authority as to the compliance of its activities with

Malta’s requirements of labour and social law relevant to the field of

occupational pensions referred to in regulation 17 of these regulations

and with the information requirements referred to in regulation 19 of

these regulations. Should this supervision bring irregularities to light,

the competent authority shall inform the European regulatory authority

in the home Member State of the European IORP immediately. In terms

of the Directive, the European regulatory authority of the home Member

State shall, in coordination with the competent authority, take the

necessary measures to ensure that the European IORP puts a stop to the

detected breach of social and labour law.

If, despite the measures taken by the European regulatory

authority of the home Member State or because appropriate measures

provisions of Malta’

are lacking in the home Member State, the European IORP persists in

breaching the applicable provisions of Malta’s requirements of social

and labour law relevant to the field of occupational pensions, the

competent authority may, after informing the European regulatory

authority of the home Member State, take appropriate measures to

prevent or penalize further irregularities, including, insofar as is strictly

necessary, preventing the European IORP from operating in Malta for

the sponsoring undertaking located in Malta.

PART III

SCOPE

(1) The objective of these regulations is intended to

implement the relevant provisions of the Directive and they shall be

interpreted and applied accordingly.

(2) In the event that any of these regulations are in conflict

with the provisions of the Directive, the Directive shall prevail.

Mitbug[ fl-Istamperija tal-Gvern — Printed at the Government Printing Press