Pensions

Companies have become increasingly international and their employees increasingly mobile.

Companies are therefore looking for solutions to manage their pension plans in this increasingly international and mobile environment.

The Lydian Pensions Team advises companies on how to deal with the international aspects of their pension plans.

Moreover, since the entry into force of the Act of 27 October 2006 on the supervision of IORPS (Institutions for Occupational Retirement Provision), Belgium has become a prime location for Pan-European pension funds.

That Act introduced a new legal form of pension fund which is specifically designed to allow for a flexible governance structure and organisation. It also benefits from a very favourable tax regime (the so-called “zero-taxation on benefits”).

We can help you setting up such a Pan-European pension fund.

Now that the different stakeholders take a greater interest in pensions, there is inevitably more litigation in the area of pensions.

Litigating in this area is a delicate operation; the legislation is not always clear, there is still relatively little case-law and the impact of a negative court ruling can be enormous.

We can assist you in all types of litigation, ranging from a complaint filed with the Belgian pensions regulator (FSMA) to proceedings in the Belgian Constitutional Court or the European Court of Justice. Our pensions lawyers work closely with our litigators to make sure our pensions and ligation expertise is combined in the way which best meets our clients’ needs.

Pension schemes are increasingly becoming an obstacle in corporate transactions such as M&A.

To avoid this happening, it is important to address the pensions issues sufficiently early in the process.

During the due diligence process, special attention must be given to pensions risks. 

We work with our clients to analyse the entire range of potential consequences – for example, financial consequences, information and consultation obligations, discrimination – to help decide whether to take over a pension plan.

The Lydian Pensions Team has extensive experience in advising on the pensions aspects of all types of corporate transactions.

The boundary between the public and private sectors is becoming less clear all the time. The same is true for pensions in the public and the private sector:

• pension funds and insured plans are being introduced in the public sector;
• an increasing number of people have mixed public sector/private sector careers;
• private sector corporate governance rules are also imposed on public sector pension funds;
• many pay-as-you-go schemes in the public sector are being converted into pre-financed schemes.

The mix of private sector pensions legislation and public sector administrative law concepts and rules can be highly complex.

Lydian has a dedicated Public Sector Pensions Team combining pensions law and administrative law expertise and can help our clients to avoid any pitfalls encountered in this area

The Act of 27 October 2006 on the supervision of IORPS (Institutions for Occupational Retirement Provision) transposed EU Directive 2003/41 (the so-called IORP Directive) into Belgian law by putting in place a new and transparent flexible legal framework for pension funds.

A pension fund established in Belgium takes the legal form of an OFP (Organisation for Financing Pensions). The OFP is a separate legal entity solely liable for its funds and obligations and distinct from the sponsoring undertakings.

It is specifically designed to allow for a flexible governance structure and organisation and  benefits from a very favourable tax regime (the so-called “zero-taxation on benefits”).

The activities of an OFP can be limited to Belgium and to one single pension plan, but it can also have cross-border activities and operate several pension plans for employees working in different countries.

We can assist you in setting up a pension fund, in drafting the necessary corporate governance documents and policies and in negotiating the different contracts the pension fund will enter into. We can also help you with the legal aspects of the daily management of the pension fund.

Since 1 April 2011, both the FSMA and the National Bank of Belgium (NBB) have been entrusted with the supervision of the Belgian financial sector. This reform of financial supervision in Belgium gave the FSMA a new challenge and the powers necessary to supervise, among other things, the conduct of financial institutions and the products they sell.

An essential task of the Belgian pensions regulator (FSMA) is to protect the pension benefits financed through pension funds and insurance companies. It has a wide range of powers including:

• a general power of control over all pension funds and insurance companies;
• the right to investigate;
• the right to inform other stakeholders; and,
• the right to impose fines and other types of sanctions.

Our Pensions Team has expertise in dealing with the Belgian pensions regulator (FSMA) on a wide variety of matters including plan changes, financing issues, setting up of pension funds, restructuring and M&A.

Pension scheme funding is a complex issue.

We can assist you with:

• all aspects of pension scheme funding and investment, including both legal and regulatory obligations and custodianship;
• advice on investment management, including ongoing support in respect of obligations and services of the custodian, drafting of booklets and announcements to members.

When it comes to pensions, tax is everywhere!

We advise on all pension tax issues including:

• the conditions for tax relief in relation to registered pension schemes, including the tax deductibility of pension contributions;
• the taxation of the actual pension benefit;
• the tax implications of pension plan restructurings;
• the tax status of pension funds and other related legal entities;
• VAT issues related to pensions;
• other indirect taxes, such as insurance taxes.

Pension plan rules are key when setting up a pension plan.

The pension plan rules must be clear, correct and in line with the applicable legislation at all times.

The Lydian pension team has comprehensive experience in drafting pension plan rules and in updating them to take account of the ever changing legal and corporate environment, helping our clients to ensure they are compliant in this complex area of law.

We also advise and assist employers with employee consultations and with negotiations with employees and trade unions regarding pension plan changes.