Wilson & Anor v McNamara & Ors

Wilson & Anor v McNamara & Ors

The Court provisionally held that the impact of insolvency on accrued pension rights of a self-employed person exercising the right of establishment is within the scope of Article 49 TFEU. The UK legislation, by only fully protecting pension rights under UK-approved schemes, is liable to affect a higher proportion of EU nationals and constitutes indirect discrimination unless objectively justified. The appropriate remedy, if discrimination is found, is to interpret the legislation to include pension schemes recognised for tax purposes in other EU Member States. However, the Court referred the question to the CJEU for a preliminary ruling.

Parties
Applicant / Joint Trustee in Bankruptcy: Mark John Wilson; Applicant / Joint Trustee in Bankruptcy: George Maloney; Respondent: Moira McNamara; Respondent: Marine House Trustees Ltd; Respondent: Irish Life Assurance PLC; Respondent / Applicant on Preliminary Issue (bankrupt): Michael Bernard McNamara
Jurisdiction
England and Wales
Judgment Date
23 January 2020
Procedural Posture
Bankruptcy / Insolvency (preliminary Issue) / Judgment on Preliminary Issue and Reference to CJEU
Outcome
Reference to the Court of Justice of the European Union (CJEU) for a preliminary ruling; no final determination of the preliminary issue pending the CJEU's answer.
Legal Topics
Bankruptcy Estate Composition, Freedom of Establishment, Discrimination Under EU Law, Pension Rights in Insolvency, Conforming Interpretation of National Law
Insolvency Law EU Law Pensions Law Bankruptcy Estate Composition Freedom of Establishment Discrimination Under EU Law Pension Rights in Insolvency Conforming Interpretation of National Law

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Parties

Mark John Wilson

Applicant / Joint Trustee in Bankruptcy

George Maloney

Applicant / Joint Trustee in Bankruptcy

Moira McNamara

Respondent

Marine House Trustees Ltd

Respondent

Irish Life Assurance PLC

Respondent

Michael Bernard McNamara

Respondent / Applicant on Preliminary Issue (bankrupt)

Procedural Posture

Bankruptcy / Insolvency (preliminary Issue) / Judgment on Preliminary Issue and Reference to CJEU

Legal Issues

  1. 1 Whether EU law requires pension rights under an Irish scheme to be excluded from the bankruptcy estate in the UK as if they were under a UK approved pension arrangement
  2. 2 Whether the UK legislation is discriminatory or restricts freedom of establishment under Article 49 TFEU and Article 24 of Directive 2004/38/EC

Ratio Decidendi

The Court provisionally held that the impact of insolvency on accrued pension rights of a self-employed person exercising the right of establishment is within the scope of Article 49 TFEU. The UK legislation, by only fully protecting pension rights under UK-approved schemes, is liable to affect a higher proportion of EU nationals and constitutes indirect discrimination unless objectively justified. The appropriate remedy, if discrimination is found, is to interpret the legislation to include pension schemes recognised for tax purposes in other EU Member States. However, the Court referred the question to the CJEU for a preliminary ruling.

Court Disposition

Reference to the Court of Justice of the European Union (CJEU) for a preliminary ruling; no final determination of the preliminary issue pending the CJEU's answer.

Orders

  • Parties to agree a draft order and schedule specifying the question(s) for reference to the CJEU.
  • If parties cannot agree, the matter to be re-listed for further argument.