Under the Netherlands Future of Pensions Act, which came into force on 1 July 2023, all Dutch defined benefit pensions schemes need to be put into run-off and move to a defined contribution model by 1 January 2028.
There are various ways they can do this, but one option would be to transfer the defined benefit liabilities to an insurer under a contract similar to a bulk purchase annuity policy written in the UK pension risk transfer (PRT) sector. This potential PRT growth presents an opportunity for international reinsurers to enter into the Dutch market.
Macfarlanes and NautaDutilh have experience working together on transactions of this kind, leveraging Macfarlanes' extensive experience in the UK longevity reinsurance and PRT sector and NautaDutilh's expertise navigating the legal and regulatory landscape in the Netherlands. Below are our five key points to consider when entering into longevity reinsurance with a Dutch cedant.
- Governing law: Whilst the reinsurance agreement will be governed by Dutch law, the contract can substantially follow the form of customary English law governed longevity reinsurance documentation (comprising, in effect, a longevity swap with title transfer experience collateral).
- "Bail-in": It is also important to take into account the powers of the resolution authority in relation to reinsurance arrangements. Provisions may need to be included to cater for the "bail-in" resolution tool provided for under the Dutch Recovery and Resolution of Insurers Act, which enables the De Nederlandsche Bank (DNB) to reduce an insurer's liabilities.
- Asset-intensive reinsurance: Under the Dutch Financial Markets (Amendment) Act 2024 (which came into force on 1 January 2025), Dutch insurers are required to seek consent from the DNB for "asset-intensive reinsurance" agreements that allow a reinsurer to hold assets outside of the EEA. It may be necessary to consider whether longevity reinsurance falls within the scope of the rules and is therefore subject to the DNB consent requirement.
- "Good faith obligations": While "good faith" has its ordinary meaning under English law governed agreements, it can have specific implications under Dutch law. When agreeing provisions with good faith obligations, parties should consult with Dutch counsel.
- Existence checking: The existence checking provisions will need to take into account the Personal Records Database in the Netherlands.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
