Hermed det brev som vil blive sendt til Kommissionen om frit pensionsvalg. En dansk oversættelse vil følge.

László Andor

Member of the European Commission

Commissioner for Employment, Social Affairs and Inclusion

Berlaymont

Rue de loi, 200

1049 Brussels

Dear Commissioner Andor

We are writing you in regards to the recent ruling of the ECJ concerning the failure of Germany to comply with its obligations resulting from the directives 92/50/EEC and 2004/18/EC on public service contracts. In the case 271/08 the ECJ ruled in favour of the Commission that the German local authorities were in breach of the above-mentioned directives when granting contracts to pension providers without prior public tenders.

The Court based its ruling on the need to balance the respect for the right of collective bargaining and the respect for the free movement of services and freedom of establishment on which the directives in question are based. The court ruled that the respect for the collective bargaining in this case does not necessitate a limitation of the free movement of services as it would have been possible to fulfil the collective agreements' pension obligations with a public tender.

Furthermore, the Court ruled that the purpose of the directives is the hindrance of public authorities favouring domestic suppliers. Therefore the collective agreements do fall under the directives regardless of the role the local authorities were fulfilling. In the same manner the contracts fall under the scope of the directive as they do entail a pecuniary interest even if it's not the local authorities but individual employees who are the recipient of the service. According to the Court, regardless of the function of the local authorities, they did have as a minimum an indirect influence on the choice of pension providers and were thus able to have given a favourable position to certain providers in breach of the purpose of the directives 92/50/EEC and 2004/18/EC.

Thus, the pension contracts could have been duly fulfilled through a public tender and the contractual relation between the local authorities and the pension providers is that of a relation included in the two directives.

The key premises in the ruling as accounted for above reflect similar circumstances in other Member States' labour market, such as Denmark. In far most of the cases collective agreements include a pension scheme. As in Germany, employees do not have a free choice of service providers as the suppliers are chosen in the collective bargaining by employees' and employers' organisations with no public tender.

Therefore, we would like to enquire whether the Commission intends to examine the pension schemes in other EU member states and the potential consequences of the recent Court ruling.

Firstly, does the Commission believe that the premise of the ruling leads to an inclusion of all pension schemes in collective agreements for public employees whether they are mandatory or voluntary part of the remuneration packages? Secondly, how does the Commission envisage a public tender procedure that would ensure as high a level of freedom of choice as possible for the individual employee with a view to maximise each individual's pension savings?

In addition to the two directives concerned in the ECJ ruling, does the Commission intend to examine whether there could be any further anti-competition elements in the way that collective agreements and their pension schemes are created?

In this regard we would like to highlight the Danish example as the Danish competition authorities have found that there is effectively no competition on the pensions market in Denmark. There is no or little transparency in how the pension providers are chosen, although coincidentally many labour market organisations have their own pension provider. There is also no or little transparency in the different pension providers' performance in terms of returns and administrative costs. Furthermore, if an individual wishes to move to another pension provider the person can only transfer a small portion of his or her accumulated contributions as the rest will be in a locked collective fund. This effectively hinders the freedom of choice for the individual pension saver, hinders transparency and competition.

We look forward to the Commission's answers and thoughts on this crucial issue as the demographic challenge facing us will require an effective pensions system financed via the labour market instead of public finances.

Kind regards,

Jens Rohde, MEP, ALDE

Anne E Jensen, MEP, ALDE 

Morten Løkkegaard, MEP, ALDE