Article 12
Cross-border transfers
The transfer shall be subject to prior approval by:
a majority of members and a majority of the beneficiaries concerned or, where applicable, by a majority of their representatives. The majority shall be defined in accordance with national law. The information on the conditions of the transfer shall be made available to the members and beneficiaries concerned and, where applicable, to their representatives, in a timely manner by the transferring IORP before the application referred to in paragraph 4 is submitted; and
the sponsoring undertaking, where applicable.
The application for the authorisation of transfer referred to in paragraph 4 shall contain the following information:
the written agreement between the transferring and the receiving IORPs setting out the conditions of the transfer;
a description of the main characteristics of the pension scheme;
a description of the liabilities or technical provisions to be transferred, and other obligations and rights, as well as corresponding assets or cash equivalent thereof;
the names and the locations of the main administrations of the transferring and the receiving IORPs and the Member States in which each IORP is registered or authorised;
the location of the main administration of the sponsoring undertaking and the name of the sponsoring undertaking;
evidence of the prior approval in accordance with paragraph 3;
where applicable, the names of the Member States whose social and labour law relevant to the field of occupational pension schemes is applicable to the pension scheme concerned.
The competent authority of the home Member State of the receiving IORP shall only assess whether:
all the information referred to in paragraph 5 has been provided by the receiving IORP;
the administrative structure, the financial situation of the receiving IORP and the good repute or professional qualifications or experience of the persons running the receiving IORP are compatible with the proposed transfer;
the long term interests of the members and beneficiaries of the receiving IORP and the transferred part of the scheme are adequately protected during and after the transfer;
the technical provisions of the receiving IORP are fully funded at the date of the transfer, where the transfer results in a cross-border activity; and
the assets to be transferred are sufficient and appropriate to cover the liabilities, technical provisions and other obligations and rights to be transferred, in accordance with applicable rules in the home Member State of the receiving IORP.
The competent authority of the home Member State of the transferring IORP shall only assess whether:
in the case of a partial transfer of the pension scheme's liabilities, technical provisions, and other obligations and rights, as well as corresponding assets or cash equivalent thereof, the long term interests of the members and beneficiaries of the remaining part of the scheme are adequately protected;
the individual entitlements of the members and beneficiaries are at least the same after the transfer;
the assets corresponding to the pension scheme to be transferred are sufficient and appropriate to cover the liabilities, technical provisions and other obligations and rights to be transferred, in accordance with the applicable rules in the home Member State of the transferring IORP.
Where the transfer results in a cross-border activity, the competent authority of the home Member State of the transferring IORP shall also inform the competent authority of the home Member State of the receiving IORP of the requirements of social and labour law relevant to the field of occupational pension schemes under which the pension scheme must be operated and of the information requirements of the host Member State referred to in Title IV which shall apply to the cross-border activity. This shall be communicated within a further four weeks.
The competent authority of the home Member State of the receiving IORP shall communicate this information to the receiving IORP within one week of its receipt.