The improvement of the legal framework concerning pension portability: is open coordination an option ?

摘要

Although the free movement of persons (or more precisely of employees and their families) is considered to be one of the major pillars of the EU's internal market, there still isn't real pension portability. This has to do with the characteristics of a quilt (or patchwork) the different member-states of the EU form in the area of pension schemes. Considering the differences with regard to - the rules of affiliation : obligatory, voluntary, mixed, sectoral, ...;- the level of organization: national, industry-wide, enterprise or individual;- the actors such as pension funds, insurers, banks or mutual funds, ...;- the booking rules and their evolution towards the IAAS norms;- the level of coverage: going from nearly 100% of the population to nearly 0% of the population;- the diversity in fiscal treatment of occupational pensions in the different stages (going from EEE (exemption, exemption, exemption) to TTT (taxation, taxation taxation), regardless the Commission's idea of the EET model;- the prudential control: going from the prudent man principle to the strict state supervision;- the level of participation of the employees: managing, voting right, supervising, ...- the risk bearing with regard to the shift from Defined Benefit to Defined Contribution, the idea of a legally binding minimum return guarantee in DC plans, the longevity risk, the obsolete mortality tables in quite a lot European countries, ...; - the cost structure: from strictly regulated to no rules;- the financing techniques: repartition, capitalization, closed or open capitalization, mixed systems, ...;- the role of the government: organizing, controlling, managing, regulating, ...;- ...Bearing all these differences in mind and knowing that the social aspects of pensions are still a national prerogative, it is clear that coordination of occupational pensions towards a unified pension portability platform is a burdensome task. Not only the limited scope of the 1998 directive is already a clear indication, but also the different national strategy reports laid in September 2002 point in that direction. Furthermore the Commission's first evaluation of national strategies for adequate and sustainable pensions of the 17th of December 2002 gives little to none options for fast solutions. We have to look elsewhere. Currently there are two major paths:1. What can we expect from the European Court of Justice after the Danner case, knowing that the PEPGO test case is going full steam ahead ?2. What can we expect from the so called "Bolkenstein directive" ? I believe both options are rather slim. Fiscally, the theory on the national coherency still stands and prudentially, some countries have smartly seen their way out of the directive. So the question we have to ask is the following: can the method of open coordination form a solution towards the pension portability problem ? Legally, I consider open coordination not to be an option when it comes to solving the portability question. Politically however, it might be a first step towards the right direction. However I strongly believe the anglo-saxon occupational pension model is taking the overhand in continental European. This makes me believe that we have to start broadening the social competences of the EU within the EU. Apart from looking at the fiscal, financial, prudential and competition elements in the debate on portability the social aspects should be taken into consideration. These aspects are not a mere consequence or subsidiary of the other elements. Things are often presented otherwise. We should recognize that the portability of occupational pensions form an element in the social pension problem of the net replacement income ratio for the future elder in Europe. By recognizing that occupational pensions have an imminent social goal: bringing insured welfare to ALL pensioners in Europe, we can move ahead. Improving the private market for pension providers or installing a fiscal uniformity within the EU should therefore not be a goal on its own, but a derivative of social policy. FULL TEXT AVAILABLE : YVES.STEVENS@LAW.KULEUVEN.BE