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Note on the Remake Regulations 2006

The 2005 Regulations set out below have recently been revoked and remade:

  • The Occupational Pension Schemes (Disclosure of Information) Regulations 2005, (S.I. No. 633 of 2005)
  • The Occupational Pension Schemes (Funding Standard) (Amendment) Regulations 2005, (S.I. No. 595 of 2005)
  • The Occupational Pension Schemes (Trustee) Regulations 2005, (S.I. No. 594 of 2005)
  • The Occupational Pension Schemes (Investment) Regulations 2005, (S.I. No. 593 of 2005)
  • The Occupational Pension Schemes (Cross-Border) Regulations 2005, (S.I. No. 592 of 2005)

The titles of the remake Regulations are set out below:

The reason it was decided to revoke the 2005 Regulations was, they purported to implement some aspects of Directive 2003/41/EC on the activities and supervision of institutions for occupational retirement provision (IORPs), in circumstances where the Pensions Act did not clearly authorise the making of Regulations to implement EU law.

A number of recent Irish cases had suggested that a statutory instrument should not be used for the purposes of implementing EU law, unless it was clear that the primary legislation included a power allowing regulations to be made to give effect to EU law. It was therefore decided in the interests of clarity to amend the Pensions Act to state that such Regulations could be made and after that, to revoke the 2005 Regulations and replace them with the 2006 Regulations.

A brief summary of the effect of each remake statutory instrument is set out below:-

The Occupational Pension Schemes (Disclosure of Information) Regulations 2006, (S.I. No. 301 of 2006)

The Occupational Pension Schemes (Disclosure of Information) Regulations 2005, (S.I. No. 633 of 2005) were revoked at midnight on 31 May 2006 and replaced on 1 June 2006 by the Occupational Pension Schemes (Disclosure of Information) Regulations 2006, (S.I. No. 301 of 2006).

Some minor changes have been made to the 2005 Regulations by the 2006 Disclosure Regulations:-

  • Clarification is provided that the statement of reasonable projection for defined contribution schemes should be prepared in accordance with the Society of Actuaries guidelines
  • The requirement for small schemes to include the latest statement of investment policy principles in the annual report has been removed
  • Full annual reports as well as alternative annual reports must now contain a statement as to whether the scheme is a defined contribution or a defined benefit scheme
  • A textual amendment was made to paragraph 6 of Schedule E to provide that on leaving employment, a scheme member’s statement would not refer to a pension adjustment order unless one had been issued
  • Schedule D, paragraph 5 has been amended by the inclusion of a “PRSA” in relation to the requirement to advise a member if he has a right to purchase additional benefits on a defined benefit basis in exchange for any transfer payment from a scheme.

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The OccupationalPension Schemes (Funding Standard) (Amendment) Regulations 2006, (S.I. No. 295 of 2006)

The 2006 Regulations make no changes to the content of The Occupational Pension Schemes (Funding Standard) (Amendment) Regulations 2005. The 2005 Regulations were revoked with effect from 24 May 2006.

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The Occupational Pension Schemes (Trustee) Regulations 2006, (S.I. No. 293 of 2006)

The Occupational Pension Schemes (Trustee) Regulations 2005, S.I. 594 of 2005 were revoked and replaced by the Occupational Pension Schemes (Trustee) Regulations 2006, (S.I. No. 293 of 2006) on the 24 May 2006.

The 2006 Regulations made some minor changes to the 2005 Regulations, which are as follows:-

  • Textual amendment of sub-article 4(1) in relation to the qualifications and experience of trustees, for clarity, by removing the reference to section 59A (2) of the Act.
  • Original sub-article 4(2) now divided into sub-articles 4(2) and 4(3). Sub-article 4(2) now specifies that the trustees must satisfy the Board “in the manner for the time being approved by the Board” that they possess or have entered into arrangements with people who possess the necessary qualifications and experience.

The amendments to article 4 of the Regulations make it clear that:

  • the trustees must possess themselves or have entered into arrangements with advisers who possess qualifications and experience appropriate and relevant to the investment of the resources of the scheme;
  • the trustees will automatically be treated as having qualifications and experience appropriate and relevant to the investment of the resources of the scheme where they have employed an investment manager, as defined in the Regulations, to provide an investment service in relation to the resources of the scheme;
  • where the trustees have not entered into a contract with an investment manager then the trustees must satisfy the Board that one of the trustees possesses qualifications and experience appropriate and relevant to the investment of the resources of the scheme, or that they have employed an adviser, possessing qualifications and experience appropriate and relevant to the investment of the resources of the scheme.

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The Occupational Pension Schemes (Investment) Regulations 2006 (S.I. No. 294 of 2006)

The 2006 Regulations make no changes to the content of The Occupational Pension Schemes (Investment) Regulations 2005, which they replaced. The 2005 Regulations were revoked with effect from 24 May 2006.

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The Occupational Pension Schemes (Cross-Border) Regulations 2006 (S.I. No. 292 of 2006)

The 2006 Regulations replaced the Occupational Pension Schemes (Cross-Border) Regulations, 2005 (S.I. No 592 of 2005) with effect from 24 May 2006.

The 2006 Regulations made some minor changes to the 2005 Regulations which are as follows:-

Article 6 in relation to the conditions to operate cross-border was amended to include as a condition of authorisation that the scheme must satisfy the funding standard. This condition was originally provided by way of primary legislation.

Article 6 was also amended to provide for transitional arrangements for schemes which were already operating cross-border on 22 September, 2005 (i.e. UK/Ireland schemes). For those schemes, where at the date of application for authorisation, the scheme does not satisfy the funding standard, the condition of authorisation that the scheme must satisfy the funding standard shall not apply until the earlier of the following dates:-

(i) the date on which the scheme satisfies the funding standard,
(ii) the effective date of the next actuarial funding certificate after the date on which the application to operate cross-border has been made, or
(iii) such later date as may be granted by the Pensions Board under section 49(3) of the Act.

Minor amendments were made to the Schedule to the Regulations, which lists the information which must be furnished to the Pensions Board by a scheme where it is proposing to accept contributions from an employer based in another EU Member State.

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