Read the Getting the Deal Through Irish Chapter: Pensions and Retirement Plans 2016

Pensions &
Retirement Plans
Contributing editors
Steven J Friedman and Melissa B Kurtzman
2016 © Law Business Research 2016
[ Exclusively for: McCann FitzGerald | 05-Aug-16, 07:48 AM ] ©Getting The Deal Through

Pensions & Retirement
Plans 2016
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CONTENTS
2 Getting the Deal Through – Pensions Retirement Plans 2016
Global overview 5
Steven J Friedman
Litter Mendelson, PC
Belgium6
Jan Van Gysegem
Claeys Engels
Canada10
Michael G Sherrard and Sundeep Gokhale
Sherrard Kuzz LLP, Employment Labour Lawyers
China16
Jiang Junlu and Pei Xiu
King Wood Mallesons
France22
Juliana Kovac and Philippe Montanier
Flichy Grangé Avocats – member of LE Global
Germany26
Johannes Schipp, Karl Geißler and Dirk Paschke
T/S/C Fachanwälte für Arbeitsrecht Schipp Partner
Rechtsanwälte mbB
Ireland31
Maureen Dolan
McCann FitzGerald
Japan36
Taichi Arai, Rina Shimada, Hiroki Habuka and Kenta Nishioka
Mori Hamada Matsumoto
Mexico41
Mónica Schiaffino
Littler Mexico
Spain45
Javier Alonso de Armiño and Rebeca Rodríguez
Cuatrecasas, Gonçalves Pereira
Switzerland50
Martin L Müller
Pestalozzi Attorneys at Law
United Arab Emirates 54
Rebecca Ford
Clyde Co LLP
United Kingdom 58
Penny Cogher
Irwin Mitchell LLP
United States 64
Venezuela70
Juan Carlos Varela

McCann FitzGerald IRELAND
www.gettingthedealthrough.com 31
Ireland
Maureen Dolan
McCann FitzGerald
Statutory and regulatory framework
1 What are the main statutes and regulations relating to
pensions and retirement plans?
ThePensionsActs1990to2015(PensionsAct)andtheTaxesConsolidation
Act 1997 (as amended) (TCA) are the principal legislative provisions.
The Pensions Act was amended to reflect Directive 2003/41/EC of the
European Parliament and of the Council on the Activities and Supervision
of Institutions for Occupational Retirement Provision (IORPs). Numerous
regulations have been made under the Pensions Act. The most important
regulations govern preservation of benefits, the funding standard, disclo-
sure of information and investment rules. Statutory guidance has been
issued by the Pensions Authority and prescribed by the Minister for Social
Protection under regulation. Statutory guidance has the force of law and
hasbeenappliedtoreductionsinaccruedbenefits,fundingproposalcertifi-
cation, contingent assets, unsecured undertakings and transfer payments.
The TCA regulates the tax treatment of occupational pension schemes and
pension products. Family law provisions also affect pension provision.
2 What are the primary regulatory authorities and how do they
enforce the governing laws?
The Pensions Authority, the Pensions Ombudsman and the Revenue
Commissioners are the primary regulatory authorities for work-based
pension plans.
The Pensions Authority
The Pensions Authority:
• supervises compliance with the requirements of the Pensions Act by
trustees of occupational pension schemes and trust retirement annu-
ity contracts (RACs), personal retirement savings accounts providers,
registered administrators and employers;
• investigates suspected breaches of the Pensions Act;
• conducts on-site inspections and compliance audits;
• instigates prosecutions and other sanctions where breaches of the
Pensions Act are found to have occurred;
• provides policy advice and technical support to the work of the
Minister and Department of Social Protection;
• provides relevant information and guidance to the public and those
involved with pensions; and
• dealswithinquiriesreceivedfromschememembers,trustees,employ-
ers, the pensions industry, the general public and the media.
The Pensions Ombudsman
The Pensions Ombudsman investigates and decides complaints and dis-
putesfromindividualsabouttheiroccupationalpensionschemes,personal
retirement savings accounts and trust RACs where there is maladministra-
tion or financial loss.
It is intended that the Office of the Pensions Ombudsman and the
Financial Services Ombudsman will amalgamate. The legislation to give
effect to the amalgamation has not yet commenced.
The Revenue Commissioners
The Revenue Commissioners enforce the TCA through the grant or
withdrawal of their approval for occupational pension schemes and
pension products. The grant of approval ensures a favourable tax
treatment will apply to contributions and investment return. The TCA
grants discretionary powers to the Revenue in relation to the approval
of occupational pension schemes. The Revenue Commissioners publish
a Revenue Pensions Manual, which gives general guidance on how its
powers are exercised.
3 What is the framework for taxation of pensions?
An occupational pension scheme that is approved by the Revenue
Commissioners as an exempt approved scheme is tax efficient for several
reasons. Employee contributions are allowable as an expense in assess-
ing the member’s liability to tax. In any tax year, and depending on age,
tax relief will apply to contributions of between 15 per cent and 40 per
cent of the employee’s remuneration (up to a maximum remuneration of
€115,000). An ordinary annual contribution paid by an employer is allowed
as a tax deduction. Income derived from investments or scheme deposits is
exempt from income tax. Pension payments are subject to income tax and
levies when in payment, and commutation of pension for a tax-free lump
sum is permitted within certain limits.
The TCA has imposed a maximum allowable retirement pension fund
for tax purposes. It has done so by imposing a lifetime limit on the total
capital value of pension benefits that an individual can draw in their life-
time from tax-relieved pension products. This applies where those benefits
are taken or come into payment for the first time on or after 7 December
2005. The limit is called a standard fund threshold. It is currently €2 million
(having gradually reduced down from a higher limit). In certain circum-
stances, application may be made for a higher personal fund threshold.
Any excess above the threshold is subject to an upfront income tax charge
of 41 per cent.
State pension provisions
4 What is the state pension system?
The state pension (contributory) is a social insurance payment made to
people aged 66 or over who satisfy certain social insurance contribution
conditions. The pension (personal rate) is not means tested or affected by
other income. The state pension (non-contributory) is a means tested pay-
ment for people aged 66 or over who do not qualify for the state pension
(contributory) based on their social insurance record.
5 How is the state pension calculated and what factors may
cause the pension to be enhanced or reduced?
To qualify for a state pension (contributory) a person must be aged 66 or
overandhaveenoughClassA,E,F,G,HorSsocialinsurancecontributions.
They need to:
• have paid social insurance contributions before a certain age;
• have a certain number of social insurance contributions paid; and
• have a certain average number over the years since they first started
to pay.
The qualifying conditions are very detailed and described on the website of
the Department of Social Protection.
6 Is the state pension designed to provide a certain level
of replacement income to workers who have worked
continuously until retirement age?
The state pension will provide a basic level of retirement income, provided
a person qualifies. The state pension is intended to ensure that everyone

IRELAND McCann FitzGerald
receives a basic standard of living in retirement. Some people do not
receive a full state pension because they have not been credited with
enough social insurance contribution payments. In these cases lower levels
of state pension may be paid.
7 Is the state pension system under pressure to reduce benefits
or otherwise change its current structure in any way on
account of current fiscal realities?
Yes, in a number of ways. The state pension age increased on 1 January
2014 from the age of 65 to the age of 66. It will increase to the age of 67 on
1 January 2021 and the age of 68 on 1 January 2028. The state pension (tran-
sition), which was payable at the age of 65 will no longer be paid. Further
changes are proposed in 2020 to the qualifying conditions.
Plan features and operation
8 What are the main types of private pensions and retirement
plans that are provided to a broad base of employees?
Defined benefit plans, defined contribution plans and hybrid plans are
established under trust. Hybrid plans generally combine characteristics
of defined benefit and defined contribution and historically have been set
up under separate trusts. Some defined benefit plans have become frozen
plans under which future accrual has ceased and instead is provided under
a new separate defined contribution plan. Therefore, an employee might,
at retirement, have benefits paid from two plans.
9 What restrictions or prohibitions limit an employer’s ability to
exclude certain employees from participation in broad-based
retirement plans?
Under the Pensions Act, an employer must comply with the principle of
equal treatment under the Pensions Act in relation to the manner in which
it affords its employees access to a scheme. The principle of equal treat-
ment under the Pensions Act means that there will be no direct or indirect
discrimination in any scheme rule on any of the discriminatory grounds
under the Pensions Act. The discriminatory grounds include gender, age
and family status, among other grounds, with exceptions or savings apply-
ing to many of them. Otherwise, there are no restrictions.
10 Can plans require employees to work for a specified period to
participate in the plan or become vested in benefits they have
accrued?
A maximum service period of six months for eligibility to participate is
acceptable before an employer must facilitate an alternative arrange-
ment. If the qualifying service period is longer than six months, then the
employer must facilitate access to a standard Personal Retirement Savings
Account (PRSA). This means that the employer must allow its payroll sys-
tem to deduct contributions from salary if the employee so requests and
pass them to the PRSA provider with whom the employer has entered into
a PRSA arrangement.
Under an occupational pension scheme, benefits vest under the
Pensions Act when a member leaves service having completed two years’
qualifying service (ie, service as a scheme member, service as a member
of a scheme of the same employer and service as a member of a scheme
of a different employer from which a transfer payment has been received).
11 What are the considerations regarding employees working
permanently and temporarily overseas? Are they eligible to
join or remain in a plan regulated in your jurisdiction?
If the employee is working temporarily overseas on secondment from an
Irish employer for a limited period and can be deemed to remain on its pay-
roll, the employee may remain or become a member of the Irish employer’s
Revenue-approved scheme. If an employee is sent abroad other than on
secondment to serve with a non-resident company in a group of which the
parent company is resident in the state, but the parent company can recall
or direct the employee elsewhere, the employee may remain or become a
member of the Irish employer’s Revenue-approved scheme but this must
first be referred to the Revenue.
12 Do employer and employees share in the financing of the
benefits and are the benefits funded in a trust or other secure
vehicle?
Employers must contribute as a condition of Revenue approval in some
form, but there is flexibility as to the extent of their contributions pro-
vided they are meaningful, which could mean operating costs and death
in service premiums. It is now unusual that balance of cost (ie, where the
employer carries the cost above the employee contributions) defined ben-
efit schemes are non-contributory. Those that were such historically have
largely introduced employee contributions or reduced future accrual.
Definedcontributionschemesmaybecontributoryornon-contributory.
Some will have a core ordinary employer and employee contribution and
additional matching employer contributions if members contribute some
or further contributions. Occupational pension schemes are established
under trust so that trustees hold the pension fund assets separate from the
employer’s assets.
13 What rules apply to the level at which benefits are funded and
what is the process for an employer to determine how much to
fund a defined benefit pension plan annually?
The Pensions Act imposes a statutory minimum funding standard on
defined benefit schemes, which increased on 1 January 2016 to include
a reserve. The actuary must carry out a valuation of such schemes every
three years in order to advise, recommend or set the employer contribution
rates (depending on what the deed provides for) and must also complete an
annual test. Meeting that standard means that the scheme can buy annui-
ties for pensioners but only provide transfer values for active and deferred
members. If a scheme does not satisfy the standard, the trustees must
submit a funding proposal to the Pensions Authority to rectify the situa-
tion within a specified period. The scheme actuary will also value the fund
on an ongoing basis and perhaps on another basis to assess approximately
how much of the benefits could actually be secured. For example, in a fro-
zen scheme that is a balance of cost scheme, the actuary might be asked
by trustees to value the fund on a self-sufficiency basis to map out a plan as
to when the scheme might be able to secure all benefits and what funding
arrangement over what time period might achieve that result. In a balance
of cost scheme, the balance of power in the scheme’s contribution rule may
influence the level of additional funding from time to time depending on
by whom the rate is set and the strength of the employer covenant.
14 What are customary levels of benefits provided to employees
participating in private plans?
In a defined benefit plan, benefits are based on a fraction of pensionable
remuneration for each year of pensionable service depending on how
these terms are defined in the governing trust deed and rules. Generally
a fraction of 1/60th applies. Very often the formula takes the state pension
(contributory) into account.
In a defined contribution plan, a member builds up a retirement
account from the value of employee and employer contributions. The
account is used to secure benefits at retirement usually as the member
decides from a range of options and subject to Revenue rules (ie, secur-
ing members’ and dependants’ pensions with a life office, paying a tax-free
lump sum, paying a taxed lump sum, or making a transfer to an approved
retirement fund or approved minimum retirement fund).
15 Are there statutory provisions for the increase of pensions in
payment (pension escalation) and the revaluation of deferred
pensions?
There is no statutory increase to pensions in payment. If a former
employee has an entitlement to a deferred pension that has vested under
the Pensions Act, it will normally be revalued (at the lesser of 4 per cent
and the increase in the consumer price index) at the end of each year until
payment commences.
16 What pre-retirement death benefits are customarily provided
to employees’ beneficiaries and are there any mandatory
rules with respect to death benefits?
Dependants’ pensions as a percentage of the member’s pension may be
payable under a defined benefit scheme. A lump sum death in service ben-
efit will usually apply.
A separate lump sum death in service benefit is usually insured
under a defined contribution plan. In some cases, a spouse’s pension as a

percentage of salary is also insured. The value of the member’s retirement
account will also be paid. In some cases, the amount of lump sum pay-
ment will have regard to the amount of the retirement account or may have
regard to death benefits payable under another scheme of the employer
where a restructuring of pension arrangements has occurred and the mem-
ber has an entitlement under that other scheme.
On death in deferment, if a member is entitled to a deferred pension
in a defined benefit scheme that is preserved under the Pensions Act,
its actuarial value must be paid to the legal personal representatives.
Alternatively, the trustees may pay dependants’ pensions in lieu, if the
scheme rules allow for dependants’ pensions on death in service. If a
deferred pensioner in a defined contribution scheme dies in deferment
with a preserved benefit, an amount is paid to his or her legal personal
representatives,whichisusuallyequaltothemember’sretirementaccount.
17 When can employees retire and receive their full plan
benefits? How does early retirement affect benefit
calculations?
Members may retire early under Revenue rules on or after their 50th birth-
day,iftheschemerulespermit.UnderRevenuerules,butdependingonthe
scheme rules, benefits may be paid immediately regardless of age if retire-
ment is caused by ill health. Under Revenue rules, ill health means physi-
cal or mental deterioration that is serious enough to prevent the individual
from following their employment or very seriously impairs their earning
capacity. Ill health early retirement is usually subject to employer or trustee
consent and the qualifying condition under the scheme rules may be more
onerous. On ill health early retirement, benefits under Revenue rules may
be the same fraction of remuneration the employee would have received if
they remained in service until normal retirement age. Alternatively, they
may be the leaving service benefit. The actual benefit will depend on the
scheme rules. On normal early retirement, Revenue rules place a restric-
tion on maximum benefits. In a defined benefit scheme, the scheme rules
will usually provide for an actuarial discount because the pension will be
paid earlier and for longer.
18 Are plans permitted to allow distributions or loans of all or
some of the plan benefits to members that are still employed?
No, this is not permitted.
19 Is the sufficiency of retirement benefits affected greatly if
employees change employer while they are accruing benefits?
In terms of moving between defined benefit schemes, members will lose
the link to final pensionable salary on completed pensionable service if the
formula is based on a final salary calculation. If their deferred benefit is
preserved by the Pensions Act, statutory revaluation may apply under the
scheme. In the recent economic climate when salary inflation stalled, it has
not been unusual for statutory revaluation on deferred pensions to exceed
salary inflation for active members. The terms of the new defined benefit
scheme will also have an impact here.
Intermsofmovingbetweendefinedcontributionschemes,anyimpact
from changing employer will depend on the contribution rates and invest-
ments in both schemes. If moving from defined benefit to defined contri-
bution, then the nature of pension provision changes and this may affect
the sufficiency of benefits. This may be influenced by whether or not the
defined benefit scheme is actually able to pay the benefits when they fall
due and the level of contributions to, and their investment in, the defined
contribution scheme.
20 In what circumstances may members transfer their benefits
to another pension scheme?
A transfer may be made from one Revenue-approved scheme to another.
Subject to the scheme trust deed and rules, trustees must make and receive
a transfer at a member’s request if it is a deferred pension preserved by the
Pensions Act. Transfers are not permitted by the Revenue once benefits
come into payment. However, on a scheme wind up, trustees may trans-
fer pensions in payment between schemes pursuant to the Pensions Act. A
transfer payment should relate to the whole of an employee’s benefits; split
transfers are not permitted.
If the transfer is to another EU member state, regulations made under
the Pensions Act apply and the overseas scheme must be operated or man-
aged by an Institution for Occupational Retirement Provision within and
subject to the IORPs Directive. If the transfer is outside the EU, a transfer
may not be made to a country other than one in which the member is cur-
rently employed. Revenue rules apply to all such transfers and these should
be assessed with advice as to their application to the particular transfer to
determine if a submission to the Revenue is required. The transfer process
is currently under Revenue review.
21 Who is responsible for the investment of plan funds and the
sufficiency of investment returns?
Responsibilityforinvestmentisusuallywiththetrustees,butthegoverning
trust deed may also provide a role for the employer. In defined contribution
plans, the trust deed may provide for members’ investment choice from
a range of investments selected by the trustees on investment advice.
Likewise, for the additional voluntary contributions paid by members to
a defined benefit scheme, which are invested on a defined contribution
basis. Trustees must comply with investment regulations made under the
Pensions Act. This includes investing predominantly on regulated markets
(while keeping other investments to a prudent level) and diversifying
investments so as to minimise risk of large losses owing to excessive
concentration of risk. Trustees must prepare a statement of investment
policy principles and ensure their investment powers under their trust deed
are adequate.
The Pensions Authority has conducted consultation on financial
management of defined benefit schemes, having published draft guide-
lines intended to supplement the Trustee Handbook and representing the
Authority’s view of good practice. The introduction states that the guide-
lines are ‘intended to assist trustees by providing practical guidance on
how they set about the day to day tasks of managing the current and future
financial situation of their scheme’. The guidelines ‘set out what practices
the Authority expects trustees to follow in order to understand and manage
the funding and investment of their defined benefit scheme’ but recognise
that trustees may have adopted an alternative but equivalent approach to
scheme management.
22 Can plan benefits be enhanced for certain groups of
employees in connection with a voluntary or involuntary
reduction in workforce programme?
Enhancement of benefits is generally regulated by the trust deed and
requires employers’ or trustees’ consent. In a defined benefit scheme there
will be funding implications that must be addressed. In defined contribu-
tion schemes, enhancement would be by way of the employer paying more
contributions into the member’s retirement account.
23 Are non-broad-based (eg, executive-only) plans permitted
and what types of benefits do they typically provide?
Yes. Historically, they were set up on a defined benefit basis with a more
generous pension formula. Alternatively, the executive participated in the
broad based employee scheme but also accrued a top up under a separate
definedbenefitscheme.Inthecontextofdefinedcontributionschemes,the
governing trust deed and rules will usually provide that employers can pay
higher contributions into the retirement account under an augmentation
clause without the necessity for a separate scheme. Alternatively, the same
defined contribution scheme may have separate sets of rules for different
categories of members.
24 How do the legal requirements for non-broad-based plans
differ from the requirements that apply to broad-based plans?
One-member schemes are not always subject to the same restrictions and
requirements under the Pensions Act and its regulations as schemes with
more than one member. This may give more flexibility, for example, with
investment rules. However, under Revenue rules, further restrictions do
apply and these need to be carefully monitored.
25 How do retirement benefits provided to employees in a
trade union differ from those provided to non-unionised
employees?
It is customary to provide the same retirement benefits to union and non-
union members with the same employer.

IRELAND McCann FitzGerald
26 How do the legal requirements for trade-union-sponsored
arrangements differ from the requirements that apply to
other broad-based arrangements?
Trade unions do not sponsor schemes other than those they establish as
employers for their own employees to which no difference in legal require-
ments apply. Disclosure obligations of trustees sometimes extend to a
trade union representing scheme members in addition to the disclosure
obligation applying to the scheme members.
Enforcement
27 What is the process for plan regulators to examine a plan for
periodic legal compliance?
The Pension Authority has powers to conduct compliance audits and on-
site inspections and is increasing its engagement with pension schemes.
Since 2010, the Pensions Authority has carried out on-site inspections of
registered administrators. The latter must be appointed by trustees to pro-
vide ‘core administration functions’ (preparation of annual reports and
annual benefit statements for the trustees and maintenance of sufficient
and accurate records of members and their entitlements to discharge
those functions).
Governance and disclosure are currently the stated main focus of the
Pensions Authority, which has announced a programme of reforms includ-
ing on-site visits to pension schemes, administrators and trustees, new
guidance notes and model documents for trustees.
The Pensions Authority has conducted consultation on the future
structure and regulation of defined contribution schemes and it is expected
that amended legislation will emerge in due course. Meanwhile, the
Pensions Authority has published DC Codes of Governance for Defined
Contribution schemes. They are not a statement of law but set out the
standards of behaviour that the Pensions Authority would expect trustees
to adopt to demonstrate their commitment to serving the best interests of
members, deferred members and other beneficiaries.
All schemes must maintain detailed and up-to-date records in order
that information regarding contributions and benefits is available for audit
purposes by the Revenue Commissioners.
28 What sanctions will employers face if plans are not legally
compliant?
Court proceedings may be taken by the Pensions Authority against vari-
ous parties, including employers and trustees. Fines or imprisonment may
result.Thereisalsoprovisionforon-the-spotfinesfornon-compliance.The
Revenue Commissioners can withdraw exempt approval for the scheme.
29 How can employers correct errors in plan documentation or
administration in advance of a review by governing agencies?
This will depend on the particular circumstances involved and
require advice.
30 What disclosures must be provided to the authorities in
connection with plan administration?
Actuarial funding certificates and funding proposals for pre-funded
defined benefit schemes must be submitted to the Pensions Authority. All
schemes must submit specified details to the authority online. The TCA
obliges the scheme administrator to furnish information to the Revenue
and also particulars that the Revenue considers relevant.
31 What disclosures must be provided to plan participants?
There are very detailed disclosure of information regulations under
the Pensions Act, which require that trustees must provide specified
information within specified time scales to scheme beneficiaries in various
circumstances (eg, basic information on joining and around changes to
that information, individual annual benefit statements and information
triggered by events such as leaving).
32 What means are available to plan participants to enforce their
rights under pension and retirement plans?
Either the Pensions Authority or the Pensions Ombudsman may be avail-
able to the member depending on the nature of the complaint. Trustees
must have an internal disputes resolution procedure in place to which
complainants can submit certain complaints. Generally, they must do so
before the Pensions Ombudsman will become involved on appeal from
the trustee determination. Participants may be able to enforce their rights
through the courts.
Plan changes and termination
33 What restrictions and requirements exist with respect to an
employer’s changing the terms of a plan?
The Pensions Act will restrict amendments to accrued benefits in a defined
benefit scheme that is not wound up unless carried out through relevant
provisions in the Act pursuant to a direction by the Pensions Authority. The
trust deed and rules will include restrictions on amendments and gener-
ally require trustee consent. All amendments must be submitted to the
Revenue. Amendments cannot be such as to prejudice Revenue approval
of the scheme. Separately, employment law advice would most likely be
required in addition to pensions law advice.
34 What restrictions and requirements exist with respect to an
employer terminating a plan?
The restrictions and requirements will depend on the governing trust deed
and rules of the scheme. The balance of power in determining contribu-
tions to the plan and any termination notice must be considered. Other
influences may be found under the contractual arrangements between the
employer and employees, thus requiring employment law advice in addi-
tion to pensions law advice.
35 What protections are in place for plan benefits in the event of
employer insolvency?
The plan assets are held under trust separate from the employer. If both a
defined benefit plan and the employer are insolvent, the state may provide
the necessary money to pay some of the benefits subject to criteria set out
in legislation. In either a defined contribution scheme or a defined benefit
scheme, some outstanding contributions owed to the plan may be paid by
the state if not otherwise recoverable from the insolvent employer.
36 How are retirement benefits affected if the employer is
acquired?
In a share acquisition there is not likely to be any effect on the retirement
benefits in a single employer scheme but other considerations will apply
in a group scheme with more than one employer. In an asset acquisition,
whether or not the retirement benefits are affected will depend on the deal
made and transfer of undertaking regulations. The latter includes a pen-
sions exception around the non-transferability of certain pension rights
but this has been very narrowly interpreted by the courts.
37 Upon plan termination, how can any surplus amounts be
utilised?
This is determined by the governing trust deed and rules and may lead to
augmentation of benefits or retirement accounts or refunds to employ-
ers (subject to tax) or a combination of such options. Surplus might also
be transferred to another scheme of the same employer. It is not likely to
occur very often or to any great extent.
Fiduciary responsibilities
38 Which persons and entities are ‘fiduciaries’?
The trustees of the plan.
39 What duties apply to fiduciaries?
The trustees’ basic duty is to administer the plan in accordance with the
law, its terms under the governing trust deed and rules and in the best
interests of the beneficiaries. The trustees’ duties are set out under the
trust deed and rules, the Pensions Act, the TCA, other relevant legislation
and case law.
40 What are the consequences of fiduciaries’ failing to discharge
their duties?
The trustees may be personally liable for breach of trust. Failure to dis-
charge their duties can lead to sanction by the Pensions Authority, the
courts, an adverse finding by the Pensions Ombudsman or placing the
Revenue-approved status of their plan in jeopardy. Exoneration and
indemnity clauses may be available to trustees under the trust deed or
under statute.

Legal developments and trends
41 Have there been legal challenges when certain types of plans
are converted to different types of plan?
In an industrial relations context, there have been disputes around replac-
ing defined benefit plans with defined contribution plans.
42 Have there been legal challenges to other aspects of plan
design and administration?
Yes. These are generally taken before the Pensions Ombudsman having
been through the trustees’ internal disputes resolution process.
43 How will funding shortfalls, changing worker demographics
and future legislation be likely to affect private pensions in
the future?
Funding shortfalls in defined benefit schemes will continue to influence
investment de-risking strategies or their complete replacement by defined
contribution schemes. The growing popularity of defined contribution
schemeswillfocusincreasedattentionontheirgovernanceandinvestment.
Update and trends
It is expected that there will be further developments in the governance
expected of pension schemes as a result of work being conducted by the
Pensions Authority.
The Pensions Authority published a synopsis in November 2014
of the main points made in submissions it received in response to its
consultation paper on financial management guidelines for defined
benefit schemes referred to above. It has said that detailed consideration
will be given to all the points in the submissions to further inform the
Pensions Authority’s views before the final version of the financial
management guidelines are published.
The Pensions Authority announced new objectives for defined
benefit schemes, which include that it will be proposing increased
trustee standards and will be seeking powers to oversee the governance
of defined benefit schemes based on dialogue with the trustees.
In defined contribution schemes, trustees are starting to focus more
on the default investment options in the years leading up to retirement
given the options now available to members in applying their retirement
accounts at retirement.
As mentioned above, governance and disclosure are currently the
stated main focus of the Pensions Authority, which has announced a
programme of reforms including on-site visits to pension schemes,
administrators and trustees, new guidance notes and model documents
for trustees.
The Pensions Authority has published DC Codes of Governance
for Defined Contribution schemes on governance, trustee meetings,
managing conflicts of interest, collection and remittance of
contributions, investing scheme assets and paying benefits. The
Pensions Authority describes them as setting out its view of good
practice in the areas covered by the codes. Further developments may
emerge when amendments to the proposed Directive on Institutions for
Occupational Retirement Provision are agreed.
Maureen Dolan maureen.dolan@mccannfitzgerald.com
Riverside One
37–42 Sir John Rogerson’s Quay
Dublin 2
Ireland
Tel: +353 1 829 0000
Fax: +353 1 829 0010
www.mccannfitzgerald.com

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