RETIREMENT PENSIONS (CROSS-BORDER ACTIVITIES AND CROSS-BORDER TRANSFERS) REGULATIONS

AND CROSS-BORDER TRANSFERS)

SUBSIDIARY LEGISLATION 514.08

RETIREMENT PENSIONS (CROSS-BORDER

ACTIVITIES AND CROSS-BORDER TRANSFERS)

REGULATIONS

4th March, 2020

LEGAL NOTICE 48 of 2020, as amended by Legal Notice 260 of

2021.

(1)

The title of these regulations is the Retirement

Pensions (Cross-Border Activities and Cross-Border Transfers)

Regulations.

(2)

The objective of these regulations is to implement Article

6 (in part) and Articles 11, 12, 14(3), 19(8), 33(1), 48(5), 48(6),

48(8)(d) and 59 of the Occupational Pensions Directive, and they shall

be interpreted and applied accordingly.

(3)

These regulations shall come into force on such date as

the Minister responsible for the regulation of financial services may by

notice in the Gazette establish, and different dates may be so

established for different provisions of these regulations..

(1)

In these regulations, unless the context otherwise

requires

"the Act" means the Retirement Pensions Act;

"assets" means movable and immovable property of any

kind;

"competent authority" means the Malta Financial

Services Authority established by the Malta Financial Services

Authority Act;

"cross-border activity" means operating an occupational

retirement plan where the relationship between the sponsoring

undertaking and the members and beneficiaries concerned, is

governed by the social and labour law relevant to the field of

occupational pension schemes of a Member State, other than

the home Member State;

"custodian" means an entity maintaining custody of the

assets of a European IORP and, or a Maltese IORP;

"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;

AND CROSS-BORDER TRANSFERS)

"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

(a)

Malta where the Maltese IORP is licensed

under the Act; or

(b)

any Member State or EEA State, other than

Malta, in which the European IORP has been registered or

authorised,

and in which its main administration is located in

accordance with Article 9 of the Occupational Pensions

Directive;

"host Member State" means the Member State or EEA

State, including Malta, whose social and labour law relevant to

the field of occupational pension schemes is applicable to the

relationship between the sponsoring undertaking and members

or beneficiaries 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, individually or

collectively, in compliance with the legislation of the

home Member States and host Member States,

and which carries out activities directly arising therefrom;

"majority" means the Maltese IORP has obtained the

approval of an aggregate of not less than two-thirds of the

members of the Maltese IORP and an aggregate of not less than

two-thirds of the beneficiaries of the Maltese IORP, or where

applicable their representatives;

AND CROSS-BORDER TRANSFERS)

"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" means a person, other than a beneficiary or a

prospective member, whose past or current occupational

activities entitle or will entitle him or her to retirement benefits

in accordance with the provisions of an occupational retirement

plan;

"Member State" means a Member State of the European

Union;

"Occupational Pensions Directive" means Directive (EU)

2016/2341/EC of the European Parliament and of the Council

of 14 December 2016 on the activities and supervision of

institutions for occupational retirement provision (IORPs)

(recast), as may be amended from time to time, and includes

any implementing measures, implementing technical standards,

regulatory technical standards and any similar measures that

have been or 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 offers an occupational retirement plan or

pays contributions to 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 CARRYING OUT CROSS-BORDER

ACTIVITY IN OTHER MEMBER STATES OR EEA STATES

AND CROSS-BORDER TRANSFERS)

A Maltese IORP may carry out cross-border activity and

accept sponsorship in terms of the Occupational Pensions Directive

from sponsoring undertakings located within territories of Member

States or EEA States other than Malta, subject to regulations 4 and 5.

A Maltese IORP proposing to carry out cross-border

activity and to accept sponsorship in terms of the Occupational

Pensions Directive from a sponsoring undertaking located within the

territory of a Member State or an EEA State other than Malta, shall

notify its intention to the competent authority. The Maltese IORP, shall

notify the competent authority of

(a)

the name of the host Member State or the host

Member States, which shall, where applicable, be identified by

the sponsoring undertaking;

(b)

the name and the location

of

the

main

administration 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

notification by a Maltese IORP proposing to carry out cross-border

activity and to accept sponsorship as referred to in regulation 4, 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 Articles 10(1)(a) and (b),

13(4), 22(1) and 37(1) of the Occupational Pensions Directive

are satisfied.

(3)

When giving such authorisation, the competent authority

shall immediately inform EIOPA.

(1)

Where the competent authority has been notified in

accordance with regulation 4, the competent authority shall, unless it

has issued a reasoned decision that the administrative structure or the

financial situation of the Maltese IORP or the good repute or

professional qualifications or experience of the persons running the

Maltese IORP are not compatible with the proposed cross-border

activity, within three months of receiving all the information referred to

AND CROSS-BORDER TRANSFERS)

in regulation 4, communicate that information to the European

regulatory authority of the host Member State and inform the Maltese

IORP accordingly.

(2)

Where the competent authority issues any reasoned

decision as referred to in sub-regulation (1), such decision is to be

issued within three months of receiving all the information referred to

in regulation 4.

(3)

Where the competent authority does not communicate

the information referred to in regulation 4 to the European regulatory

authority, it shall give the reasons for this to the Maltese IORP

concerned within three months of receiving all that information. Such

refusal in terms of sub-regulation (2) or failure to communicate such

information within the three month period shall be subject to a right of

appeal to the Financial Services Tribunal and the provisions of article

44 of the Act shall apply mutatis mutandis.

(1)

Before the Maltese IORP starts to carry out cross-

border activity, the European regulatory authority shall, within six (6)

weeks of receiving the information referred to in regulation 4, inform

the competent authority of

(a)

the requirements of social and labour law relevant

to the field of occupational pension schemes under which the

occupational retirement plan sponsored by a sponsoring

undertaking in the host Member State must be operated; and

(b)

the information requirements of the host Member

State referred to in Title IV of the Occupational Pensions

Directive which shall apply to the cross-border activity.

(2)

The competent authority shall communicate the

information received in terms of sub-regulation (1) to the Maltese

IORP.

On receiving the communication from the competent

authority as referred to in regulation 7(2), or if no such communication

is received from the competent authority, on the expiry of the period of

six (6) weeks provided for in regulation 7(1), the Maltese IORP may

start to carry out cross-border activity in accordance with the host

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

field of occupational pension schemes and with the host Member

State’s information requirements, referred to in regulation 7.

A Maltese IORP carrying out cross-border activity shall

be subject to the information requirements referred to in Title IV of the

Occupational Pensions Directive imposed by the host Member State in

respect of the prospective members, members and beneficiaries which

that cross-border activity concerns.

AND CROSS-BORDER TRANSFERS)

(1)

The European regulatory authority of the host

Member State shall, in accordance with Article 11(9) 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 pension

schemes which may affect the characteristics of the occupational

retirement plan insofar as it concerns the cross-border activity, and of

any significant change in the host Member State’s information

requirements as referred to in regulation 7.

(2)

The competent authority shall communicate

the

information referred to in sub-regulation (1) to the Maltese IORP.

The Maltese IORP carrying out cross-border activity,

shall be subject to on-going 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 social and labour law

relevant to the field of occupational pension schemes and with the host

Member State’s information requirements, referred to in regulation 7.

Where such European regulatory authority identifies irregularities and

immediately informs the competent authority of such irregularities, the

competent authority shall, in coordination with such European

regulatory authority, take the necessary measures to ensure that the

Maltese IORP puts a stop to the detected breach.

If, despite the measures taken by the competent authority

pursuant to regulation 11, or because appropriate measures are lacking,

the Maltese IORP persists in breaching the applicable provisions of the

host Member State’s requirements of social and labour law relevant to

the field of occupational pension schemes or the host Member State’s

information requirements, referred to in regulation 7, the European

regulatory authority of the host Member State may, after informing the

competent authority, take appropriate measures to prevent or penalise

further irregularities, including, where appropriate, in so far as strictly

necessary, preventing the Maltese IORP from operating in the host

Member State for the sponsoring undertaking located in the host

Member State.

(1)

The competent authority may prohibit or restrict

the activities of a Maltese IORP, if the Maltese IORP does 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

AND CROSS-BORDER TRANSFERS)

(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 detailed reasons and notified to the

Maltese IORP in question. Such decision shall also be notified to

EIOPA.

(1)

In the event of cross-border activity as referred to

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

provisions at all times fully funded.

(2)

If these conditions are not met, the competent authority

shall promptly intervene and require the Maltese IORP to immediately

draw up appropriate measures and implement them, without delay, in a

manner that members and beneficiaries are adequately protected.

The competent authority shall report to EIOPA, any

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

occupational pension schemes, which are not covered by Maltese

social and labour law on the organisation of pension systems. Such

information shall be updated on a regular basis and not less than once

every two (2) years.

PART II

EUROPEAN IORPS CARRYING OUT CROSS-BORDER

ACTIVITY IN MALTA

Without prejudice to Malta’s requirements of social and

labour law, a sponsoring undertaking located in Malta may sponsor a

European IORP which proposes to carry out cross-border activity.

Such European IORP shall be exempt from the provisions of article 4

of the Act.

Where a European IORP intends to carry out cross-

border activity in Malta the following conditions shall be satisfied

(a)

the European IORP has given to its European

regulatory authority a notice containing the information

required in terms of Article 11(3) of the Occupational Pensions

Directive; and

(b) the competent authority has received the

information referred to in paragraph (a), from the European

regulatory authority of the European IORP, within the three

month period specified in terms of Article 11(4) of the

Occupational Pensions Directive.

AND CROSS-BORDER TRANSFERS)

Before the European IORP starts to carry out a cross-

border activity into Malta, the competent authority shall, within six

weeks 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 of

(a)

the requirements of social and labour law relevant

to the field of occupational pension schemes under which the

occupational retirement plan sponsored by a sponsoring

undertaking located in Malta must be operated; and

(b)

the information requirements imposed by the

competent authority, established by Pension Rules for

Occupational Retirement Schemes made under the Act which

shall apply to the cross-border activity.

On receiving the communication of information referred

to in regulation 18 from the European regulatory authority of its home

Member State, in terms of the Occupational Pensions Directive, or if no

such communication is received from such European regulatory

authority, on expiry of the period of six (6) weeks provided for in

regulation 18, the European IORP may start to carry out a cross-border

activity in Malta in accordance with Malta’s requirements of social and

labour law relevant to the field of occupational pension schemes and

with the information requirements referred to in regulation 18.

A European IORP carrying out cross-border activity shall

be subject to the information requirements imposed by the competent

authority, established by Pension Rules for Occupational Retirement

Schemes made under the Act, in respect of the prospective members,

members and beneficiaries which that cross-border activity concerns.

The competent authority shall inform the European

regulatory authority of the European IORP of any significant change in

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

occupational pension schemes which may affect the characteristics of

the occupational retirement plan insofar as it concerns the cross-border

activity, and of any significant change in the information requirements

referred to in regulation 18.

The European IORP carrying out cross-border activity in

Malta shall be subject to on-going supervision by the competent

authority as to the compliance of its activities with Malta’s

requirements of social and labour law relevant to the field of

occupational pension schemes and with the information requirements

referred to in regulation 18. Where the competent authority identifies

irregularities by a European IORP, the competent authority shall

immediately inform the European regulatory authority of the home

Member State of the European IORP of such irregularities. In terms of

Article 11(10) of the Occupational Pensions Directive, the European

AND CROSS-BORDER TRANSFERS)

regulatory authority of the home Member State of the European IORP

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

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

breach.

If, despite the measures taken by the European regulatory

authority of the home Member State of the European IORP or because

those measures prove to be inadequate or are insufficient, the

European IORP persists in breaching the applicable provisions of

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

occupational pension schemes, or the information requirements

referred to in regulation 18, the competent authority may, after

informing the European regulatory authority of the home Member

State of the European IORP, take appropriate measures to prevent or

penalise further irregularities, including, in so far as strictly necessary,

preventing the European IORP from operating in Malta for the

sponsoring undertaking located in Malta.

At the request of a European regulatory authority of a

European IORP, the competent authority shall prohibit the free

disposal of assets held by a custodian located in Malta in accordance

with Article 48 of the Occupational Pensions Directive.".

In the case of a European IORP carrying out cross-

border activity in Malta, the competent authority shall not lay down

investment rules in addition to those set out in Article 19(1) to (6) of

the Occupational Pensions Directive, for the part of the assets which

cover technical provisions for cross-border activity.

Pursuant to Article 33 of the Occupational Pensions

Directive, a European IORP carrying out cross-border activity in

Malta, shall appoint one or more depositaries for the safe-keeping of

assets and oversight duties in accordance with Articles 34 and 35 of

the Occupational Pensions Directive when carrying out cross-border

activity in Malta.

PART III

CROSS-BORDER TRANSFER BY A MALTESE IORP TO A

EUROPEAN IORP

Where a Maltese IORP proposes to transfer all or part of

its liabilities, technical provisions and other obligations and rights, as

well as corresponding assets or cash equivalent thereof, to a European

IORP, the provisions of this Part shall apply in relation to the proposed

transfer.

For the purposes of regulation 26 and regulations 28 to

34

"European IORP" means an institution for occupational

AND CROSS-BORDER TRANSFERS)

retirement provision or IORP in terms of the Occupational

Pensions Directive authorised by a European regulatory

authority, receiving from a Maltese IORP, all or a part of the

Maltese IORP’s liabilities, technical provisions, and other

obligations and rights, as well as corresponding assets or cash

equivalent thereof;

"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 institution for occupational retirement provision or IORP for

the purposes of the Occupational Pensions Directive,

transferring all or a part of its liabilities, technical provisions,

and other obligations and rights, as well as corresponding assets

or cash equivalent thereof, to a European IORP.

(1)

The proposed transfer of all or a part of a Maltese

IORP’s liabilities, technical provisions, and other obligations and

rights, as well as corresponding assets or cash equivalent thereof, to a

European IORP, shall be subject to

(a)

the authorisation of the European regulatory

authority of the European IORP;

(b)

the prior consent of the competent authority; and

(c)

prior approval by

(i)

a majority of members and a majority of the

beneficiaries concerned or, where applicable, by a

majority of their representatives of the Maltese IORPs,

and

(ii)

the

sponsoring

undertaking,

where

applicable

Provided that, for the purposes of obtaining the majority

referred to in regulation 28(1) (a)(i), the Maltese IORP shall provide

information on the conditions of the transfer to the members and

beneficiaries concerned and, where applicable, to their representatives,

in a timely manner before the application referred to in regulation 29(1)

is submitted.

(2)

In the case of a transfer, the Maltese IORP shall ensure

that the costs of the transfer are not incurred by the remaining members

and beneficiaries of the Maltese IORP.

(1)

In the case of a proposed transfer by a Maltese

IORP in terms of regulation 28, the European IORP is to submit to its

European regulatory authority an application for the authorisation of

the transfer.

AND CROSS-BORDER TRANSFERS)

(2)

The application for authorisation referred to in sub-

regulation (1) is to contain the following information

(a)

the written agreement between the Maltese IORP

and the European IORP setting out the conditions of the

transfer;

(b)

a description of the main characteristics of the

occupational retirement plan;

(c)

a description of the liabilities or technical

provisions to be transferred, and other obligations and rights, as

well as corresponding assets or cash equivalent thereof;

(d)

the names and the locations of the main

administrations of the Maltese IORP and the European IORP

and the Member State in which the Maltese IORP and the

European IORP are registered or authorised;

(e)

the location of the main administration of the

sponsoring undertaking and the name of the sponsoring

undertaking;

(f)

evidence of the prior approval required in

accordance with paragraph (c) of regulation 28(1);

(g)

where applicable, the names of the Member States

whose social and labour law relevant to the field of

occupational pension schemes is applicable to the occupational

retirement plan concerned.

(3)

Pursuant to Article 12(6) of the Occupational Pensions

Directive, the European regulatory authority of the European IORP

shall forward the application referred to in sub-regulations (1) and (2)

above, to the competent authority without delay, following its receipt.

(1)

When the competent authority receives the

application of the proposed transfer by the European regulatory

authority of the European IORP, pursuant to regulation 29(3), the

competent authority shall, in order to provide its consent to the transfer

as referred to in paragraph (b) of regulation 28(1), assess whether

(a)

in the case of a partial transfer of the Maltese

IORP’s liabilities, technical provisions, and other obligations

and rights, as well as corresponding assets or cash equivalent

thereof, the long term interests of the members and

beneficiaries of the remaining part of the scheme are adequately

protected;

(b)

the individual entitlements of the members and

beneficiaries are at least the same after the transfer;

AND CROSS-BORDER TRANSFERS)

(c)

the assets corresponding to the occupational

retirement plan to be transferred are sufficient and appropriate to

cover the liabilities, technical provisions and other obligations

and rights to be transferred, in accordance with the Act,

regulations and Pension Rules issued thereunder.

(2)

The competent authority shall, in order to allow the

European regulatory authority of the European IORP to take a decision

to grant or refuse the authorisation of the transfer, communicate the

results of the assessment referred to in sub-regulation (1) to the

European regulatory authority of the European IORP, within eight (8)

weeks of receiving the application of the proposed transfer from the

said European regulatory authority.

(3)

The competent authority shall be informed of the decision

by the European regulatory authority of the European IORP, to grant or

refuse the authorisation of the transfer, within two weeks of the said

decision.

(1)

Where the transfer results in a cross-border

activity, the competent authority shall, within four weeks of receiving

the decision referred to in regulation 30(3), inform the European

regulatory authority of the European IORP of Malta’s requirements of

social and labour law relevant to the field of occupational pension

schemes under which the occupational retirement plan is to be operated

and of the information requirements imposed by the competent

authority, established by Pension Rules for Occupational Retirement

Schemes, made under the Act, which shall apply to the cross-border

activity.

(2)

In terms of Article 12(11) of the Occupational Pensions

Directive, the European IORP is to be notified of the requirements

referred to in sub-regulation (1), within one (1) week of receiving the

said information by the competent authority.

(3)

The competent authority shall inform the European

regulatory authority of the European IORP of any significant change in

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

of occupational pension schemes referred to in sub-regulation (1)

which may affect the characteristics of the occupational retirement plan

in so far as it concerns the cross-border activity, and of any significant

change in Malta’s information requirements referred to in sub-

regulation (1).

Upon receipt of a decision granting authorisation by its

European regulatory authority authorising the cross border transfer by a

Maltese IORP to a European IORP in terms of regulation 28, or if no

information on the decision is received from the European regulatory

authority within the period referred to in regulation 31(1), the European

IORP may commence to operate the occupational retirement plan as

AND CROSS-BORDER TRANSFERS)

provided in terms of Article 12(12) of the Occupational Pensions

Directive.

Where the transfer results in a cross-border activity by

the European IORP into Malta, the European IORP shall be subject to

on-going supervision by the competent authority as to the compliance

of the activities of the occupational retirement plan with Malta’s

requirements of social and labour law relevant to the field of

occupational pensions and information requirements, referred to in

regulation 31(1). Where the competent authority identifies

irregularities by the European IORP, the competent authority shall

immediately inform the European regulatory authority of the European

IORP of such irregularities. In terms of the Occupational Pensions

Directive, the European regulatory authority of the European IORP

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

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

breach.

If, despite the measures taken by the European regulatory

authority of the European IORP or because those measures prove to be

inadequate or are insufficient, 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 or the

information requirements, referred to in regulation 31(1), the

competent authority may, after informing the European regulatory

authority of the European IORP, take appropriate measures to prevent

or penalise further irregularities, including, in so far as strictly

necessary, preventing the European IORP from operating the

occupational retirement plan for the sponsoring undertaking.

PART IV

CROSS-BORDER TRANSFER BY A EUROPEAN IORP TO A

MALTESE IORP

Where a European IORP proposes to transfer all or part

of its liabilities, technical provisions and other obligations and rights,

as well as corresponding assets or cash equivalent thereof, to a Maltese

IORP, the provisions of this Part shall apply in relation to the proposed

transfer.

For the purposes of regulation 35 and regulations 37 to

43

"European IORP" means an institution for occupational

retirement provision or IORP in terms of the Occupational

Pensions Directive authorised by a European regulatory

authority, transferring all or part of its liabilities, technical

provisions, and other obligations and rights, as well as

corresponding assets or cash equivalent thereof, to a Maltese

IORP;

AND CROSS-BORDER TRANSFERS)

"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 institution for occupational retirement provision or IORP for

the purposes of the Occupational Pensions Directive, receiving

from a European IORP, all or part of the European IORP’s

liabilities, technical provisions, and other obligations and rights,

as well as corresponding assets or cash equivalent thereof.

(1) The proposed transfer of all or part of a European

IORP’s liabilities, technical provisions, and other obligations and

rights, as well as corresponding assets or cash equivalent thereof, to a

Maltese IORP, shall require, in the following order

(a)

the authorisation of the competent authority in

terms of regulation 38;

(b)

the prior consent of the European regulatory

authority of the home Member State of the European IORP; and

(c)

prior approval by

(i)

a majority of members and a majority of the

beneficiaries concerned or, where applicable, by a

majority of their representatives; and

(ii)

the

sponsoring

undertaking,

where

applicable

Provided that, for the purposes of obtaining

the majority referred to in sub-paragraph (i) of paragraph

(c), the European IORP shall make available information

on the conditions of the transfer to the members and

beneficiaries concerned and, where applicable, to their

representatives, in a timely manner before the application

referred to in regulation 38 is submitted.

(2)

In the case of a transfer, the Maltese IORP shall ensure

that the costs of the transfer are not incurred by the existing members

and beneficiaries of the Maltese IORP.

(3)

In terms of Article 12(2) of the Occupational Pensions

Directive, the European IORP shall ensure that in the case of a transfer,

the costs of the transfer are not incurred by the remaining members and

beneficiaries of the European IORP.

(1)

In the case of a proposed transfer by a European

IORP in terms of regulation 37, the Maltese IORP shall submit to the

competent authority an application for the authorisation of the

proposed transfer.

AND CROSS-BORDER TRANSFERS)

(2) The application for authorisation referred to in sub-

regulation (1) shall contain the following information

(a)

the written agreement between the Maltese IORP

and the European IORP setting out the conditions of the

transfer;

(b)

a description of the main characteristics of the

occupational retirement plan;

(c)

a description of the liabilities or technical

provisions to be transferred, and other obligations and rights, as

well as corresponding assets or cash equivalent thereof;

(d)

the names and the locations of the main

administrations of the Maltese IORP and the European IORP

and the Member State in which the Maltese IORP and the

European IORP are registered or authorised;

(e)

the location of the main administration of the

sponsoring undertaking and the name of the sponsoring

undertaking;

(f)

evidence of the prior approval required in

accordance with regulation 36(1)(c);

(g)

where applicable, the names of the Member States

whose social and labour law relevant to the field of

occupational pension schemes is applicable to the occupational

retirement plan concerned.

(3)

The competent authority shall forward the application

received pursuant to sub-regulation (1) to the European regulatory

authority of the home Member State of the European IORP, without

delay, following its receipt.

(1)

When the competent authority receives the

application of the cross-border transfer, in terms of regulation 38, the

competent authority shall assess whether

(a)

all the information referred to in regulation 38(2)

has been provided by the Maltese IORP;

(b)

the administrative structure, the financial situation

of the Maltese IORP and the good repute or professional

qualifications or experience of the persons running the Maltese

IORP are compatible with the proposed transfer;

(c)

the long term interests of the members and

beneficiaries of the Maltese IORP and the transferred part of

the occupational retirement plan are adequately protected

AND CROSS-BORDER TRANSFERS)

during and after the transfer;

(d)

the technical provisions of the Maltese IORP are

fully funded at the date of the transfer, where the transfer results

in a cross-border activity; and

(e)

the assets to be transferred are sufficient and

appropriate to cover the liabilities, technical provisions and

other obligations and rights to be transferred, in accordance with

the Act and any regulations and Pension Rules issued

thereunder.

(2)

Subject to the requirements laid down in regulation

37(1)(b) and (c) and to the assessment carried out in terms of sub-

regulation (1), the competent authority shall grant or refuse the

authorisation of the proposed transfer and communicate its decision to

the Maltese IORP within three (3) months of receiving the application

pursuant to regulation 38(1).

(3)

The competent authority shall be informed by the

European regulatory authority of the European IORP, of the results of

the assessment of the proposed transfer carried out by the European

regulatory authority in terms of Article 12(8) of the Occupational

Pensions Directive within eight weeks of the receipt of the application

referred to in regulation 38(3).

(4)

Prior to taking a decision to grant or refuse the

authorisation of the proposed transfer in accordance with this

regulation and regulation 38, the competent authority shall take into

account the results of the assessment carried out by the European

regulatory authority referred to in sub-regulation (3).

(5)

The competent authority shall inform the European

regulatory authority of the home Member State of the European IORP

of its decision to grant or refuse the authorisation of the proposed

transfer referred to in sub-regulation (2), within two (2) weeks of

taking that decision.

(6)

Where the competent authority refuses to authorise the

proposed transfer, the competent authority shall provide the reasoning

for such refusal within the three (3) month period referred to in sub-

regulation (2). Such refusal or a failure to act within the three (3) month

period shall be subject to a right of appeal to the Tribunal and the

provisions of article 44 of the Act shall apply mutatis mutandis.

(1)

Where the transfer results in a cross-border

activity, the European regulatory authority of the European IORP is to

inform the competent authority, of the host Member State’s

requirements of social and labour law relevant to the field of

occupational pension schemes under which the occupational retirement

AND CROSS-BORDER TRANSFERS)

plan is to be operated and of the information requirements referred to

in Title IV of the Occupational Pensions Directive which shall apply to

the cross-border activity, within four (4) weeks of receiving the

decision as referred to in regulation 39(5).

(2)

The competent authority shall communicate the

information received in terms of sub-regulation (1) to the Maltese

IORP within one (1) week of receiving the said information.

(3)

The competent authority shall, upon receiving from the

European regulatory authority of the home Member State of the

European IORP, information on any significant change in the host

Member State's requirements of social and labour law relevant to the

field of occupational pension schemes referred to in sub-regulation (1)

which may affect the characteristics of the occupational retirement

plan insofar as it concerns the cross-border activity, and on any

significant change in the host Member State's information

requirements as referred to in sub-regulation (1), communicate the said

information to the Maltese IORP.

Upon receipt of the decision taken by the competent

authority to grant an authorisation of the proposed transfer as referred

to in regulation 40(2), or if no information on the decision is received

from the competent authority on expiry of the period of seven (7)

weeks following the period referred to in regulation 40(2), the Maltese

IORP may start to operate the occupational retirement plan.

42.Where the transfer results in a cross-border activity, the

Maltese IORP shall be subject to on-going supervision by the

European regulatory authority of the European IORP, as to the

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

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

schemes and of the host Member State's information requirements as

referred to in regulation 40(1). Where the European regulatory

authority of the European IORP identifies irregularities and informs

the competent authority of such irregularities, the competent authority

shall, in coordination with the European regulatory authority, take the

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

detected breach.

If, despite the measures taken by the competent authority,

the Maltese IORP persists in breaching the applicable provisions of the

host Member State’s requirements of social and labour law relevant to

the field of occupational pension schemes or the host Member State’s

information requirements as referred to in regulation 40(1), the

European regulatory authority of the home Member State of the

European IORP may, after informing the competent authority, take

appropriate measures to prevent or penalise further irregularities,

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

from operating in the host Member State for the sponsoring

AND CROSS-BORDER TRANSFERS)

undertaking.

PART IV

MISCELLANEOUS

In the case of disagreement about the procedure or

content of an action or inaction of the European regulatory authority of

the European IORP, including a decision to authorise or refuse a cross

border transfer, in terms of Article 12 of the Occupational Pensions

Directive, the competent authority may, in the context of cross-border

transfers under Parts III and VI of these Regulations, refer the matter to

EIOPA and request it to carry out non-binding mediation in accordance

with Article 31 of Regulation (EU) No 1094/2010.

The Retirement Pensions (European Passport Rights for

Institutions for Occupational Retirement Provision) Regulations are

hereby revoked.