Pension Funds/Opinions/Pensions and benefits

Pledging of claims

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In the case of pension funds that finance pension plans, Decree-Law no. 12/2006, of 20 January, established a system of reduced liquidity, so that it is only permissible to reimburse the amounts accumulated under the strict conditions provided for by law.

In fact, the contingencies that may confer the right to receive a pension consist of the following: pre-retirement, early retirement, retirement due to old age, retirement due to invalidity and survival (see Article 6(1) of that law).

In the case of own contributions, in addition to the above, it is also possible to reimburse amounts accumulated in specific cases, such as long-term unemployment, serious illness or permanent incapacity for work. Under the terms of article 8(4) of the regime in question, these concepts should be understood in the terms defined in the legislation in force for retirement savings plans.

In addition to these situations clearly typified in the legislation applicable to pension funds, the reimbursement of accumulated amounts is not admissible, contrary to what happens in the pension savings scheme, in which it is carried out at all times and at a mere request.
In addition, the legal framework of pension funds is guided by the principle of asset autonomy, which is the basis for the protection of participants / pensioners under this regime (see article 11), representing an exception to the general rule that all the debtor's assets are liable for the satisfaction of the obligation.

In fact, with the exception of the operating expenses of the system, the assets of pension funds can only be allocated to the fulfilment of the pension plan, not being liable for any other obligations, namely those of members, participants, taxpayers, management entities or depositaries. In fact, the assets of pension funds are only liable for their own debts.

It also follows specifically from paragraph 3 of Article 11 of the above mentioned law: "the asset value of any rights of a participant in a pension fund is exclusively allocated to the fulfilment of the obligations provided for in the respective pension plan, and is not liable for any other obligations, namely towards its creditors".

In view of the above, this last provision of Decree-Law no. 12/2006, of 20 January, as a specific rule applicable to pension funds and in conjunction with the provisions of Article 822 of the Code of Civil Procedure [applicable subsidiarily in the case of tax executions through the application of paragraph e) of Article 2 of the Code of Tax Procedure and Proceedings], results in the absolute impossibility of the amounts allocated to pension funds as vehicles for financing the pension plans.


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