Pension rights in business transfers
本文分析了欧盟企业转让指令中养老金权利排除条款的法律解释与实施问题，并探讨英国修改法规强制转让养老金的技术障碍与立法框架。
The Transfers of Undertakings Directive 77/187/EEC excludes pension rights from the automatic transfer of contractual rights in business transfers. The recent amendment by Directive 98/50/EC serves no legal purpose, but will provide additional political justification for Member States such as the UK who wish to require the compulsory transfer of pension rights. The first part of this article explains the present scope and interpretation of the exclusionary first limb of Article 3 paragraph 4, in particular what types of occupational scheme are regarded as ‘supplementary’ and whether the transferee is bound by pension promises given by the transferor in respect of post-transfer service. The diverse implementation of the second limb, which requires Member States to protect ‘immediate or prospective entitlements’ to benefits, is noted. This leads to consideration of the reasons for the failure of the Member States to harmonise their rules on transfer of pension rights, in particular vesting periods in both the recent Supplementary Pensions Directive 98/49/EC and the Transfers Directive 98/50/EC. The second part of the article considers the technical problems which must be overcome before the UK regulations (TUPE) can be amended so as to require the transfer of pension benefits, and proposes a legislative framework within which this could be achieved.