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CA confirms pensions bankruptcy legislation incompatible with EU law

On 16 January, the Court of Appeal in Wilson v McNamara dismissed an appeal against Nugee J’s decision on the trial of a preliminary issue (and following a reference to the Court of Justice of the European Union (“CJEU”)) that the treatment of a registered overseas pension scheme as part of a bankrupt’s estate pursuant to ss.11(2)(h) and 12(1) of the Welfare Reform and Pensions Act 1999 was discriminatory, and therefore incompatible with EU law, because it differentiated between UK and foreign migrant workers from other EU states. The appellant trustees in bankruptcy did not challenge the decision on discrimination but argued that the Judge ought to have permitted them to argue that the discrimination was objectively justified. That argument was rejected, on the basis that the trustees ought to have raised justification during the trial of the preliminary issue, and that it was immaterial that justification was referred to in the CJEU’s subsequent judgment.

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