Was sind grenzüberschreitende Pensionskassengeschäfte?

Abstract

This article deals with the crossborder business of pension funds, resp Institutions for Occupational Retirement Provision (IORPs) according to the IORP-II Directive. In case of a cross-border business of IORPs, the IOPR-II Directive provides for a special supervisory regime. However, from a legal point of view it is unclear what circumstances trigger a cross-border case and the respective legal consequences (notification procedure etc). This question will be analysed on the basis of an occupational pension scheme where the IORP and the employee reside resp work in Austria, but the employer resides in another Member State. In this scenario, the question arises whether this constitutes a cross-border business according to the IORP-II Directive resp the Austrian Pension Fund Act which implements the directive. It is argued that the decisive test for this problem is the applicable “social and labour law” - within the meaning of the directive - for the pension scheme. A cross-border case is triggered only if - according to international labour law - the “social and labour law” of another country than the home state of the IORP is applicable. Since in the case analysed in this article, where employees work in Austria for a foreign employer that contracts with an Austrian IORP, the Austrian “social and labour law” is applicable, the Austrian IORP does not operate cross-border.