S.I. No. 286/1997:

EUROPEAN COMMUNITIES (OCCUPATIONAL BENEFIT SCHEMES) REGULATIONS, 1997

EUROPEAN COMMUNITIES (OCCUPATIONAL BENEFIT SCHEMES) REGULATIONS, 1997

The Minister for Social Welfare, in exercise of the powers conferred on him by section 3 of the European Communities Act, 1972 (No. 27 of 1972), and for the purpose of giving effect to Council Directive No. 96/97/EC of 20 December 1996* amending Council Directive No. 86/378/EEC of 24 July 1986† on the implementation of the principle of equal treatment for men and women in occupational social security schemes, hereby makes the following regulations:

*(O J No. L46 of 17.2.97 p.20)

†(O J No. L225 of 12.8.86 p.40)

1. (1) These Regulations may be cited as the European Communities (Occupational Benefit Schemes) Regulations, 1997.

(2) These Regulations shall come into operation on the 1st day of July, 1997.

2. In these Regulations--

"the Act of 1996" means the Pensions (Amendment) Act, 1996 (No. 18 of 1996);

"the Principal Act" means the Pensions Act, 1990 (No. 25 of 1990).

3. The definition of "occupational benefit scheme" (inserted by section 29 of the Act of 1996) in section 65 of the Principal Act is hereby amended by the substitution for paragraphs (a) to (c) of the following:

"(a) any individual contract made by or on behalf of a self-employed person, or

( b ) any scheme for a self-employed person which has only one member, or

( c ) any insurance contract made by or on behalf of an employed person to which the employer is not a party, or

( d ) any scheme in so far as benefits are financed by contributions paid by the members on a voluntary basis.".

4. The Principal Act is hereby amended by the substitution for section 69 (as amended by section 61 of the Social Welfare Act, 1992 (No. 5 of 1992)) of the following section:

"69. (1) In determining whether an occupational benefit scheme complies with the principle of equal treatment under section 66, account shall not to be taken of--

( a ) any difference, on the basis of the sex of the members, in the levels of contributions which the employer makes, to the extent that the difference is for the purposes of--

(i) removing or limiting differences, as between men and women in the amount or value of benefits provided under a defined contribution scheme, or

(ii) ensuring the adequacy of the funds necessary to cover the cost of the benefits defined under a defined benefit scheme,

( b ) any difference, on the basis of the sex of members in the amount or value of--

(i) benefits provided under a defined contribution scheme to the extent that the difference is justifiable on actuarial grounds, or

(ii) certain elements of benefits provided under a defined benefit scheme, to the extent that the difference results from the effects of the use of actuarial factors differing according to sex at the time when the funding of such scheme is implemented, such as--

(A) the conversion into a capital sum of part of a periodic pension,

(B) transfer of pension rights,

(C) a reversible pension payable to a dependant in return for the surrender of part of a pension, or

(D) a reduced pension where the employee opts to take early retirement,

( c ) any special treatment for the benefit of women to whom section 72 (1) relates,

( d ) any difference of treatment for self-employed persons in relation to any optional provisions available,

( e ) any difference of treatment in relation to additional benefits available,

( f ) any right to claim a flexible pensionable age provided the conditions are the same for men and women.

(2) In this section--

'additional benefits available' means those provisions of an occupational benefit scheme--

( a ) which apply only in the case of members who elect for them to do so, and

( b ) whose purpose is to secure for those members benefits in addition to those otherwise provided under such scheme;

'optional provisions available' means those provisions of an occupational benefit scheme--

( a ) which apply only in the case of members who elect for them to do so, and

( b ) whose purpose is to secure for those members--

(i) a choice with respect to the date on which benefits under such scheme are to commence, or

(ii) a choice between any two or more benefits.".

5. The Principal Act is hereby amended by the insertion after section 70 of the following section:

"Benefits granted under a scheme at discretion of its management body.

70A. Where the granting of an occupational benefit under an occupational benefit scheme is at the discretion of any person, that person shall comply with the principle of equal treatment in the exercise of such discretion.".

6. Section 71 (1) (inserted by section 31 of the Act of 1996) of the Principal Act is hereby amended by the insertion after "employed persons" of the following:

", with effect from the 8th day of April, 1976, in the case of employed persons who initiated proceedings or made an equivalent claim before the 17th day of May, 1990, alleging that the scheme did not comply with the principle of equal treatment.".

GIVEN under the Official Seal of the Minister for Social Welfare,

this 25th day of June, 1997.

PROINSIAS DE ROSSA,

Minister for Social Welfare.

EXPLANATORY NOTE.

These regulations give effect to COUNCIL DIRECTIVE 96/97/EC on the implementation of the principle of equal treatment for men and women in occupational social security schemes.

The regulations apply with effect from the 1st of July, 1997, in accordance with Article 3 of the Directive.

The Court of Justice of the European Communities in its Judgement of 17 May 1990 in Case 262/88: Barber v. Guardian Royal Exchange Assurance Group acknowledges that all forms of occupational pension constitute an element of pay within the meaning of Article 119 of the Treaty, which requires Member States to ensure the application of the principle that men and women should receive equal pay for equal work. That Judgement automatically invalidates certain provisions of Council Directive 86/378/EEC of 24 July 1986 on the implementation of the principle of equal treatment for men and women in occupational social security schemes in respect of paid workers.

The Court of Justice in a series of further Judgements on the application of Article 119 to occupational social security schemes clarified a number of additional matters relating to the scope of EU Law in this area.

On grounds of legal certainty it was necessary to amend Directive 86/378/EEC in order to adapt the provisions which are effected by the Barber case law. This has been provided for by Directive 96/97/EC.

Part VII of the Pensions Act provides for the application of the principle of equal treatment for men and women in occupational social security schemes and gives effect in Ireland to EU Law in this area and specifically to the terms of Directive 86/378/EEC. These regulations provide for amendments to Part VII to bring its provisions fully into line with Directive 96/97/EC and thus, Article 119 of the Treaty, as interpreted by the Court of Justice of the European Communities.

The regulations clarify the range of schemes or arrangements which are outside the scope of the Directive and these exceptions are now more limited for employed persons than for the self-employed. The differences in treatment permitted, which reflect, in particular, the use of actuarial factors that differentiate between men and women, are also clarified.

With certain exceptions the new provisions have retrospective application to 17 May 1990, the date of the Barber Judgement.