Transfer of pension funds to non-state pension funds declared illegal without trial for the first time

Transfer of pension funds to non-state pension funds declared illegal without trial for the first time

The Financial Ombudsman Service made the first decision on a complaint from a non-state pension fund client, who proved that pension funds were transferred to the fund from the Pension Fund (since 2023 - the Social Fund of Russia, SFR) without his consent. Now all funds, including interest for using savings, must be returned within 30 days. The NPF hopes that there will be few such statements: in recent years, regulators have strictly monitored the transfers of savings. However, in 2015–2019 there were a lot of cases of illegal movement of citizens’ funds, and many now have a chance to return them to the original insurer.

As Kommersant was told by the Financial Ombudsman Service, on February 6 they made the first decision to return pension savings transferred without the consent of a client of one of the non-state pension funds to the original insurer. The application from a resident of the Moscow region was received in December 2023. According to Financial Commissioner Tatyana Savitskaya, the citizen reported that, according to the pension account statement received through the State Services portal, pension savings since 2018 were not in the SFR, but in a non-state pension fund with which she did not enter into an agreement.

As Ms. Savitskaya explained, a handwriting examination of the consumer’s signatures in the contract and in the application for a change of insurer was carried out and it was established that they were fake. Pension savings illegally transferred to NPFs must be returned to the SFR. The Ombudsman's decision comes into force ten days after approval. The Financial Commissioner's Service received the rights to resolve issues of transferring pension savings of citizens just from December 2023 in connection with the entry into force of amendments to the relevant law.

There are 37 pension funds in the Central Bank register. Of these, 27 NPFs provide compulsory pension insurance (MPI) services. The total number of OPS clients is 36.3 million people.

Savings are returned taking into account the results of the investment, and the NPF will also transfer interest on the use of funds to the SFR and return the contributions to its income, explains Ms. Savitskaya. The SFI will restore to the consumer’s individual personal account the amount of investment income that was withdrawn when changing the insurer.

Until now, an unlawfully concluded agreement with a non-state pension fund could only be declared invalid in court (see Kommersant, September 22, 2020), emphasizes Maria Karpova, an expert at the auditing and consulting company FBK.

Returning savings through the court was a complex and lengthy procedure involving submission of applications to the NFP, territorial bodies of the Pension Fund, etc., including the preparation of a claim demanding compensation for damage. Now a person can exercise this right with the help of a financial ombudsman, explains SberNPF Director of Legal Affairs Kirill Savin, the procedure will be similar to the execution of court decisions.

As pension market participants note, the practice of illegal transfers was widespread in 2012–2018. “The agents transferred the savings of the insured from one fund to another without the knowledge of citizens. As a result, both the clients of the funds and the funds themselves were victims, whose reputation was significantly damaged,” explains NPF Future. According to the Pension Fund of Russia, in total, during the transition campaigns of 2015–2019, funds from the Pension Fund of Russia to NPFs were transferred to 12.4 million people.

“Since 2019, this practice has been completely eradicated thanks to amendments to the legislation that prohibited the activities of compulsory pension insurance agents, and NFPs have done a lot to strengthen their reputation,” NPF Future assured.

Judging by the Central Bank's data, the number of complaints filed with the regulator regarding pensions has actually been decreasing in recent years. If in 2021 there were almost 1.2 thousand, then in 2022 - 601, and in 2023 - 306. The total number of transitions from financial institutions to non-state pension funds in 2022 decreased to 9.2 thousand people - the minimum for more than ten years.

In such a situation, according to an interlocutor at one of the NPFs, the number of complaints filed with the Financial Commissioner’s Service “is unlikely to exceed a couple of dozen per year.” There are currently ten such cases in progress. However, the capabilities of the service are much wider. On average, financial commissioners (in various areas) make about 1.7 thousand decisions per week. It is still difficult to estimate the potential volume of work in relation to NPF clients there; “everything will depend on the volume of fraud.”

It is likely that the service can also help previous victims of fraud: the NPF client has a chance to receive a positive decision, even if the transfer was made without his consent many years ago. As Andrey Sharkov, managing partner of the law firm STEPS, explains, the consumer has the right to appeal to the NPF and the financial ombudsman within the general limitation period. “This is three years from the moment the citizen learned of a violation of his rights, in this case, the illegal transfer of his funds to a non-state pension fund,” the lawyer notes.

There is also the possibility of exceptions when a citizen could not complain earlier for objective reasons, for example, he was in the hospital and so on, experts explain. “In these cases, the statute of limitations is first restored, and then a claim is filed to declare the contract invalid and return the situation to the status quo. That is, the savings are returned to the previous insurer,” notes Kirill Savin.

Market participants predictably insist on the statute of limitations. “A request for the return of pension savings to the SFR or NPF may be considered by the financial commissioner before the start of payment of a funded pension, urgent pension payment or lump sum payment to the applicant, if no more than three years have passed from the day when he learned or should have learned about the violation of his right “, emphasize the NPF “Future”.

The argument that the investor did not know, did not hear or did not have access to information about the current insurer, which can be obtained on the State Services portal, “does not seem very thorough except in special cases,” says Mr. Savin. In his opinion, it is unlikely that such grounds “can serve as a legal reason for extending the three-year period.”

In case of disagreement with the decision of the financial ombudsman, the consumer or the NPF can challenge it in court. “A fairly short period of time is given to go to court: a financial organization - 10 days, a citizen - 30 days from the date the decision entered into force,” clarifies Andrei Sharkov.

As a result, experts see both pros and cons in contacting the financial ombudsman. “On the one hand, thanks to the amendments, a tool has appeared that allows a citizen to receive decisions on recognizing the actions of NPFs as illegal in a shorter time,” admits Mr. Sharkov. On the other hand, he clarifies, “the absolute majority of such decisions are appealed by one party or another, which means that the final decision is still made by the court, but at the same time an additional stage is created for consumers, the passage of which requires effort and time.” In addition, Mr. Sharkov notes, short deadlines for appeal create for a consumer who disagrees with the ombudsman’s decision the risk of “deprivation of judicial protection if he misses this month’s deadline.”

Polina Trifonova, Yulia Poslavskaya, Anna Zanina

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