for Occupational Retirement Provision) Regulations, 2015

L.N. 9 of 2015

RETIREMENT PENSIONS ACT

(CAP. 514)

Retirement Pensions (European Passport Rights for Institutions

for Occupational Retirement Provision) Regulations, 2015

IN exercise of the powers conferred by article 37 of the

Retirement Pensions Act, the 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 Retirement Citation and

Pensions (European Passport Rights for Institutions for Occupational commencement.

Retirement Provision) Regulations, 2015.

(2) These regulations shall come into force on the 1st January

2015.

(1) In these regulations, unless the context otherwise Interpretation.

requires

"the Act" means the Retirement Pensions Act;

"the competent authority" means the Malta Financial Services

Authority established by the Malta Financial Services Authority Act; Cap. 330.

"EEA State" means a State which is a contracting party to the

agreement on the European Economic Area signed at Oporto on the

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

17th March, 1993 and as amended from time to time;

"European IORP" means an IORP in terms of the Occupational

Pensions Directive authorised 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 Occupational Pensions

Directive;

"home Member State" means Malta where the Maltese IORP is

licensed 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 the employer or

employers and the employee or employees 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 retirement scheme as

defined in article 2 of the Act, licensed by the competent authority in

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

the Occupational Pensions Directive;

"Member State" means a Member State of the European Union;

"Occupational Pensions Directive" means Directive 2003/41/EC

of the European Parliament and of the Council of the 3rd 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;

"occupational retirement plan" means the contract, agreement, a

trust deed 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

Occupational Pensions Directive from sponsoring undertakings sponsoring

undertakings

located within territories of Member States or EEA States other than located

territories of

Malta, subject to regulations 4 and 5.

Member States

or EEA States

other than

Malta.

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

the Occupational Pensions Directive by a sponsoring undertaking the

authority.

located within the territory of a Member State or an 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;

(c)

the main characteristics of the occupational

retirement plan to be operated for the sponsoring undertaking;

and

(d) such other information as may be specified in the

Pension Rules issued under the Act.

(1) Where the competent authority receives a Application to

notification by a Maltese IORP wishing to accept sponsorship as the

authority.

referred to in regulation 3, it shall, before granting its approval, be

satisfied that the Maltese IORP meets the conditions described in sub-

regulation (2) of this regulation.

(2) The conditions to be met under sub-regulation (1) are

(a) that the Maltese IORP is registered in the register

referred to in article 9(11) of the Act; and

(b) the matters set out in Article 9(1)(b) to (f) of the

Occupational Pensions Directive are satisfied.

(3) When giving such authorisation, the competent authority

shall immediately inform EIOPA.

Where the competent authority has been notified in

accordance with regulation 4, and unless it has reason to doubt 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,

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 European regulatory authority shall

within two months of receiving the information referred to in

regulation 4, inform the competent 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 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 Occupational Pensions Directive and with

regulation 9. The competent authority shall communicate this

information to the Maltese IORP.

On receiving the communication referred to in regulation

7, or if no communication is received from the competent authority

on the expiry of the period provided for in regulation 7, 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

Occupational Pensions Directive and regulation 7.

In particular, a Maltese IORP sponsored by a sponsoring

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

Malta, shall also be subject, in respect of the corresponding

employees entitled 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 Occupational Pensions Directive.

The European regulatory authority of the host Member

State shall, in accordance with Article 20(8) of the Occupational

Pensions 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

Occupational Pensions Directive and with regulation 9 of these

regulations.

The Maltese IORP shall be subject to ongoing supervision Ongoing

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

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 7 and with the

information requirements referred to in regulation 9. Where the

European regulatory authority identifies irregularities and informs the

competent authority of such irregularities, 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, Breach of

pursuant to regulation 11, the Maltese IORP persists in breaching the applicable

provisions of

applicable provisions of the host Member State’s requirements of host

State’s

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

the European regulatory authority of the host Member State may, after social

labour law.

informing the competent authority, take appropriate measures to

prevent or penalize further irregularities, including, where

appropriate, 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

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

activities of a

border activity as referred to in regulation 3, the Maltese IORP does Maltese IORP.

not comply with 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; or

(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

regulation 3, the Maltese IORP is required to have its technical

funding requirements at all times fully funded in respect of the total

range of occupational retirement plans operated by it.

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

shall intervene in accordance with Article 14 of the Occupational

Pensions Directive. To comply with this requirement the competent

authority may require ring-fencing of the assets and liabilities.

The competent authority shall report, to EIOPA, the

provisions of Maltese law of a prudential nature relevant in the field

of occupational pensions, which are not covered by Maltese social

and labour law. Such information shall be updated on a regular basis

and not less than once every two years.

PART II

Sponsoring Undertaking Located in Malta Sponsoring

a European IORP

A sponsoring undertaking located in Malta may sponsor a

European IORP which shall be exempt from the provisions of article

4 of the Act.

In terms of the Occupational Pensions 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 Occupational Pensions 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 Occupational Pensions

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 17 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

Occupational Pensions Directive and with regulation 20 of these

regulations.

(2) In terms of the Occupational Pensions 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 Commencement

18, or if no communication is received from the European regulatory of

a European

authority of the home Member State on expiry of the period provided IORP.

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

Occupational Pensions Directive and regulation 20 of these

regulations.

A European IORP sponsored by a sponsoring undertaking Information

located in Malta shall also be subject, in respect of the corresponding requirements

imposed by the

employees entitled to retirement benefits, to any information competent

authority.

requirements imposed by the competent authority on Maltese IORPs,

in accordance with Article 11 of the Occupational Pensions Directive.

The competent authority shall inform the European Notification of

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

changes in

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

social and

law relevant to the field of occupational pensions which may affect labour law.

the characteristics of the retirement 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

Occupational Pensions Directive and with regulation 20 of these

regulations.

The European IORP shall be subject to ongoing Ongoing

supervision by the competent authority as to the compliance of its supervision.

activities with Malta’s requirements of social and labour law relevant

to the field of occupational pensions referred to in regulation 18 and

with the information requirements referred to in regulation 20. Where

the competent authority identifies irregularities by a European IORP,

the competent authority shall immediately inform the European

regulatory authority in the home Member State of the European IORP

of such irregularities. In terms of the Occupational Pensions

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

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, where

appropriate, preventing the European IORP from operating in Malta

for the sponsoring undertaking located in Malta.

PART III

Scope

The objective of these regulations is to implement, in part,

the relevant provisions of the Occupational Pensions Directive and

they shall be interpreted and applied accordingly.

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