“General duties of trustees of schemes.

59.—(1) Without prejudice to the duties of trustees generally and in addition to complying with the other requirements of this Act, the duties of trustees of schemes shall include the following:

(a) to ensure, in so far as is reasonable, that the contributions payable by the employer and the members of the scheme, where appropriate, are received and that the sums referred to in subsection (1) or (2) of section 58A are invested in accordance with paragraph (b) within 10 days of the latest date on which those sums should have been remitted or paid by the employer under subsection (1) or (2), as the case may be, of section 58A;

(b) subject to subsection (2), to provide for the proper investment of the resources of the scheme in accordance with the rules of the scheme;

(c) where appropriate, to make arrangements for the payment of the benefits as provided for under the rules of the scheme as they become due, whether in the State or in any other Member State, net of any taxes and transaction charges which may be applicable;

(d) to ensure that proper membership and financial records are kept;

(e) if the scheme is wound up, to apply the resources of the scheme in discharging its liabilities without undue delay in accordance with the rules of the scheme and, where applicable, with section 48.

(2) Where, and to the extent that, the rules of a scheme provide for the trustees to invest the resources of the scheme in accordance with directions given by the members—

(a) the trustees shall—

(i) determine in accordance with the rules what different types of investments of those resources could be made at the direction of the members;

(ii) determine in accordance with the rules how those resources are to be invested in cases where the members give no direction;

(iii) in such circumstances and within such time limits as may be prescribed, furnish to the members such information as may be prescribed in relation to the determinations made by them in relation to the matters referred to in subparagraphs (i) and (ii), and

(iv) take such steps as are reasonable to ensure that the members have any further information necessary to enable the members to make informed decisions with regard to the giving of directions in relation to the different types of investment referred to in subparagraph (i),

and

(b) where the trustees comply with the requirements of paragraph (a), they shall incur no liability solely by reason of giving effect to the directions of the members given in accordance with the rules.”.

“Duties of trustees on winding-up of scheme.

59D.—Regulations may provide that, in relation to a scheme which is wound up on or after the commencement of section 43 of the Pensions (Amendment) Act, 2002 ,—

(a) the trustees shall, within such period and in such manner as may be prescribed, notify such persons as may be prescribed of the winding-up of the scheme,

(b) the trustees shall, in the course of applying the resources of the scheme in consequence of the winding-up, provide such information to such persons in such circumstances as may be prescribed, and

(c) neither the trustees nor any employer to whose employment the scheme relates, shall exercise any discretion—

(i) as to the payment of any of the resources of the scheme to any such employer, or

(ii) as to the abatement of benefits in case of an insufficiency of resources,

unless the members have first been afforded such opportunity as may be prescribed to make observations to the trustees or the employer, as may be appropriate, and unless the trustees or employer (as the case may be) have given due consideration to such observations.

Duties of trustees in connection with bulk transfer.

59E.—(1) In this section, ‘bulk transfer’ means the transfer by the trustees of a scheme of an amount of money or other resources in discharge of their liability under the scheme to provide benefits in respect of a group of members—

(a) to the trustees of another scheme or schemes where either—

(i) the scheme under which the transfer is made and the scheme under which the transfer is received apply to employment with the same employer, or

(ii) the scheme under which the transfer is made and the scheme under which the transfer is received apply to employment with different employers, and

(I) the transfer is made in consequence of a financial transaction between the employers, or

(II) one of the employers is a subsidiary (within the meaning of section 155 of the Companies Act, 1963 ) of the other, or both are subsidiaries of the same company, or

(b) to Personal Retirement Savings Accounts where either—

(i) the person, being the employer to whose employment the scheme under which the transfer is made relates (‘the first-mentioned employer’), will contribute to those accounts, or

(ii) an employer, other than the first-mentioned employer, will contribute to those accounts, and

(I) the transfer is made in consequence of a financial transaction between that employer and the first-mentioned employer, or

(II) one of those two employers is a subsidiary (within the meaning of section 155 of the Companies Act, 1963 ) of the other, or both are subsidiaries of the same company.

(2) Regulations may provide that, before any bulk transfer is effected—

(a) the trustees of the scheme under which the bulk transfer is to be made shall provide such information to such persons in such circumstances as may be prescribed,

(b) in cases where the consent of the members in respect of whom the transfer is to be effected is not to be obtained, such persons as may be prescribed shall be afforded such opportunity as may be prescribed to make observations to the trustees of the scheme under which the bulk transfer is to be made or to any employer to whose employment the scheme applies, and the trustees or the employer, as the case may be, shall give due consideration to such observations,

(c) the trustees of the scheme under which the bulk transfer is to be made shall ensure that such other conditions as may be prescribed have been satisfied, and

(d) the trustees of a scheme under which the bulk transfer is to be received shall provide such information to such persons in such circumstances as may be prescribed.

Invalidity of amendments to scheme rules and of exercises of discretion in certain circumstances.

59F.—(1) This section shall apply to—

(a) any amendment to the rules of a scheme, and

(b) any exercise of any discretionary power under a scheme,

which has the effect of augmenting the benefit of any member or members so as materially to alter the balance of interests between the members, or between the members and the employer or employers (other than an amendment or exercise made or done pursuant to section 50) which is made or done—

(i) within twelve months before or six months after—

(I) the making of a bulk transfer within the meaning of section 59E,

(II) the making of an agreement or arrangement relating to or connected with the sale of all or part of the business or interests of a person, being the employer of any employees who are members of the scheme,

(III) the making of an agreement or arrangement relating to or connected with the purchase by a person, being the employer of any employees who are members of the scheme, of all or part of the business or interests of another person or persons, where, pursuant to that purchase, the trustees or the said employer propose or are required to take any action in relation to the scheme, or

(IV) the making of any amendment to the rules of the scheme which would cause the scheme or any part of it to become a defined contribution scheme,

or

(ii) within twelve months before, or at any time after, the winding-up of the scheme.

(2) Regulations may provide that any amendment of rules, or any exercise of a power to which this section applies shall be invalid unless—

(a) the members affected by the amendment have consented in writing to the amendment,

(b) the actuary has provided a certificate to the trustees containing such statements by the actuary in respect of such matters as may be prescribed,

(c) the trustees are satisfied that the changes effected by such amendment or exercise were not effected with a view to altering materially the balance of interests under the scheme between members or groups of members, or between members and the employer or employers, by reason only of the fact that the bulk transfer, arrangements or agreement or winding-up had taken place or were to take place, as the case may be, or

(d) such other conditions as may be prescribed are satisfied.

(3) No legal proceedings shall lie against a person by reason only of anything which that person has done or omitted to do in reliance in good faith on an amendment of rules or exercise of a power rendered invalid by virtue of regulations under subsection (2).

(4) No person who receives any money under a scheme in reliance in good faith on an amendment of rules or exercise of a power rendered invalid by virtue of regulations under subsection (2) shall be required to repay such money.”.