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In this article, the interpretation of the Court of Justice of the European Union (ECJ) of Article 8 of Directive 2008/94/EC (protecting employee pension rights on employer insolvency) ('Art. 8') over the last 14 years is reviewed. In six cases the ECJ has ruled on the correct transposition of Article 8: Robins, Hogan, Webb-Sämann, Hampshire, Bauer and TMD. Initially the ECJ decided that Article 8 required a 50% minimum level of protection of the value of pensions. This raised a lot of further questions. More recently it decided, in Bauer, to add a further underpin based on the Eurostat at-risk-of-poverty threshold. The Bauer decision, in the authors' view, makes two possible errors, discussed in this article, which might create legal uncertainty as to how the additional underpin can, in practice, be administered. The Bauer underpin was unforeseeable and suggests possible (excessive) judicial activism. Our review of the Article 8 ECJ case law identifies continuing gaps in compliance in the UK (the lack of protection for unfunded pension schemes) and in the Netherlands (if an employer has agreed to provide additional funding to make good benefit shortfalls). In contrast, we identify that Article 8 does not require the protection of early retirement benefits (or invalidity benefits) in contrast to the ECJ decision in Beckmann. We discuss the use, in an English case (Hughes), of an age discrimination argument to remove a compensation cap in the UK Pension Protection Fund (PPF) for those below normal pension age using Article 21 of the EU Charter of Fundamental Rights and Article 14 of the European Convention on Human Rights. Our review may help identify potential areas of noncompliance with the transposition of Article 8 in other Member States. [ABSTRACT FROM AUTHOR]

Mandatory pension participation in the Netherlands is currently under review. This article examines the manner in which the system of mandatory participation in sectoral pension funds is presently organised as well as future proposals from the perspective of the freedom to provide services. It also briefly reviews mandatory participation in Belgium, Denmark, Germany, France and Sweden and asks whether it constitutes a barrier to the freedom enshrined in Article 56 TFEU. Restrictions of this freedom in the field of mandatory participation are too easily excused in the Netherlands by pointing to decisions by the European Court of Justice (ECJ) in which it judged the system to be permissible. These decisions, however, were made from the perspective of competition law, and not on the basis of Article 56 TFEU. Grounds for justifying restrictions to this freedom exist, although different justifications are available for direct and indirect discrimination. The article questions how mandatory participation in the Member States considered in this article fare from this perspective?

This article discusses issues regarding ‘conversion’, in particular the transformation of second pillar pension rights and entitlements. It considers the different European law regimes that are an influence on conversion, namely EU law and the law regarding the European Convention on Human Rights (hereinafter ECHR). The central question here is: would the outcome be different when conversion is tested under EU law and the Charter of Fundamental Rights of the EU (hereinafter ‘the Charter’) rather than under ECHR law? The answer seems to be ‘yes’.This article demonstrates that EU law and the Charter may offer the pensioner different and possibly more extensive protection, inter alia, against governmental measures than the ECHR. EU law may also have a direct horizontal effect, i.e. the article might be invoked directly against a pension fund. In addition, the test of fundamental rights in the Charter and the ECHR may have entirely different outcomes. More generally, an alleged breach of Article 17 of the Charter must also be reviewed in the light of the EU's economic and social objectives. These objectives are not, as such, part of the ECHR. It is difficult to predict whether a claim, based on Article 17 by an individual against a Member State and/or a relevant pension fund would be successful. Infringement of pension entitlements has not yet been tested against the Charter.

As of 2021, the world is facing several crises that will greatly impact on the ways in which our societies are shaped. This article provides a brief overview of the trends and opportunities that we think are crucial for the area of pensions in the years to come.