Revision on the ETEA opinion

The question was raised whether the IORP II Directive, as incorporated in the Greek legal order with the Law 4680/2020, also applies to the converted Occupational Insurance Funds of article 36 of Law 4052/2012.

To answer this question we must first take into account the legal framework of the Occupational Insurance Funds in question (thereafter referred to as converted TEA) that were integrated into the Single Complementary Social Security Fund (ETEA).These funds issue administrative acts of social security and work as a substitute for social security but as far as their internal affairs are concerned, they function as legal entities of private law (fiscus). This latter function of the converted Occupational Insurance Funds results in particular from the fact that they are not financed by the national budget, but their resources originate mainly from employees’ and employers’ contributions, the public does not guarantee for the amount of pensions and they operate on the basis of a system of predefined non-guaranteed provisions and on the basis of the capitalization system. Their function is inherent in article 22 par. 5 which, based on a court decision of the Council of State, gives broad power to the legislator to assign social security to several legal bodies. In addition, we should mention the importance of the public interest in social security, which is reflected in both the above-mentioned article and the new European Directive ΙΟRP II. It is in the public interest to entrust social security to bodies that ensure the adequacy of benefits and the viability of the insurance companies concerned. However, according to article 2 par. 2 a of the Directive, the occupational compulsory insurance funds operating in replacement of the statutory compulsory supplementary insurance are exempted from the scope of the Directive IORP II as far as they fall under the first pillar of social security. Thus, a legal gap then arises, given that these converted TEA have been assimilated by the Law to voluntary pension funds of the second pillar of social security but without being endowed with the guarantees of the latter. In order to fill the gap, it should be taken into account that the exceptions laid down in the above-mentioned directive should be interpreted restrictively. This is a general principle of interpretation of law inferred from the case law of the European Court of Justice and the national case law. Moreover, the gap is unintentional because the legislator obviously did not have in mind the existence of a hybrid nature of social security funds. Lastly, the significant role of ETEAs for the public interest should be highlighted because it is in line with the spirit of the European directive.

Subsequently, given the dual nature of the exemption of TEAs of Law 4052/2012, their exemption from the protection of the Directive IORP II, due to their operation  “as a substitute” for compulsory social security, makes their conversion (from public to private formations ) incomplete, creating an involuntary legal gap, which can be filled with an appropriate proportional application of this Directive as well as of its implementing Law in to the TEA of Law 4052/2012 mutatis mutandis.