2 Second question: the scope of the outsourcing rules

The scope of the outsourcing rules is defined by three criteria. These criteria are:

Licensed or authorised activities are “own” and “material” by definition. Activities that support licensed or authorised activities are “own” activities as well, but not necessarily “material”. It is not possible to draw a sharp line between “material” and “non-material” activities. For each case, one should make a reassessment of the extent of the (negative) consequences for the outsourcing firm or its clients, should there be problems in the performance of the outsourced activities. A minor issue for one outsourcing company, may be a capital issue for another company. The materiality of the activities should periodically be reassessed because the materiality of the outsourced activities may change over time.

In pension law literature, the general opinion is that an occasional outsourcing does not fall within the scope of the outsourcing rules. This view is incorrect. An occasional outsourcing may be “material” as well. While this may seldom be the case, a categorical exception of occasional outsourcing is unjustified and inconsistent with the intent of the legislator.

The importance of the distinction between outsourcing that does or does not fall within the scope of the outsourcing rules should not be exaggerated. The outsourcing rules are an elaboration of the requirement of a controlled and incorruptible operations management. Even when an outsourcing just misses to meet the criteria to fall within the scope of the outsourcing rules, the company must ensure a controlled and incorruptible operations management. Although there is no obligation in such cases to comply with the outsourcing rules, it is a logical step to remain in keeping with them.