Why is economics a field where mainstream journalism generally follows and seldom leads? Why is there so little independent, original journalistic inquiry, and as a result so few earth-shaking scoops or must-read revelations? Economics confounds many journalists assigned to cover the economy. A journalism bubble accompanied the market bubble of the first part of the decade, one that failed to examine prevailing wisdom, discounted dissent, and produced little independent analysis. What have we learned since?
In this article, the interpretation of the Court of Justice of the European Union (ECJ) of Article 8 of Directive 2008/94/EC (protecting employee pension rights on employer insolvency) ('Art. 8') over the last 14 years is reviewed. In six cases the ECJ has ruled on the correct transposition of Article 8: Robins, Hogan, Webb-Sämann, Hampshire, Bauer and TMD. Initially the ECJ decided that Article 8 required a 50% minimum level of protection of the value of pensions. This raised a lot of further questions. More recently it decided, in Bauer, to add a further underpin based on the Eurostat at-risk-of-poverty threshold. The Bauer decision, in the authors' view, makes two possible errors, discussed in this article, which might create legal uncertainty as to how the additional underpin can, in practice, be administered. The Bauer underpin was unforeseeable and suggests possible (excessive) judicial activism. Our review of the Article 8 ECJ case law identifies continuing gaps in compliance in the UK (the lack of protection for unfunded pension schemes) and in the Netherlands (if an employer has agreed to provide additional funding to make good benefit shortfalls). In contrast, we identify that Article 8 does not require the protection of early retirement benefits (or invalidity benefits) in contrast to the ECJ decision in Beckmann. We discuss the use, in an English case (Hughes), of an age discrimination argument to remove a compensation cap in the UK Pension Protection Fund (PPF) for those below normal pension age using Article 21 of the EU Charter of Fundamental Rights and Article 14 of the European Convention on Human Rights. Our review may help identify potential areas of noncompliance with the transposition of Article 8 in other Member States.
