A Member State cannot make, in principle, the full and automatic exclusion of pension rights from a bankruptcy estate dependent on the pension scheme in which those rights are held obtaining prior tax approval in that country where that scheme has already been tax approved in the home Member State of the migrant EU citizen concerned

(Source: Court of Justice of the European Union)

Such a restriction on freedom of establishment may, however, be justified if it furthers an overriding reason relating to the public interest, is appropriate to ensure that the objective it pursues is achieved and does not go beyond what is necessary to achieve that objective

Mr M had been a high-profile property developer operating primarily, if not exclusively, in Ireland. In December 2002, a company incorporated under Irish law (MMC), through which Mr M operated, established for his benefit an occupational pension scheme in the form of an insurance policy taken out with ILA and governed by Irish law. In July 2009, Mr M established a new company incorporated under Irish law (S Industries), in which he was a director and employee. By deed of 31 August 2009, S Industries established its own pension scheme governed by Irish law, the only
members of which were in fact Mr M, his wife and their son. That pension scheme was approved by the Irish tax authorities as a retirement benefits scheme. On 7 December 2009, MMC assigned the insurance policy with ILA to Mr M in the main proceedings, his wife and MH. As a result, that insurance policy was included in the S Industries pension scheme. Under that insurance policy, benefits would be paid on Mr M’s retirement or earlier death.

Judgment of the Court of Justice in Case C-168/20

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