149. Regulation of the Financial Markets Authority (FMA) amending the capital investment regulation 2002

Due to § § 78 (3) and 79 (3) of the Insurance Supervisory Act-VAG, BGBl. No 569/1978, as last amended by the Federal Law BGBl. I n ° 22/2009, shall be:

The Regulation of the Financial Markets Authority on investments to cover the technical provisions by undertakings of the contract insurance (capital investment regulation 2002), Federal Law Gazette (BGBl). II No 383/2006, as last amended by the BGBl Regulation. II No 272/2007, shall be amended as follows:

1. the following last sentence shall be added to Article 1 (1):

"In the case of investment funds serving as cover, compliance with the legally permissible overall risk arising from the respective share of derivative financial instruments shall be ensured by an internal company control process."

2. In § 1 para. 2, second sentence, the word "HGB" through the phrase " Company Code (UGB), dRGBl. 219/1897 in the version BGBl. I No 70/2008 " replaced.

3. In § 1 para. 3 Z 1 the word order shall be ", as last amended by the Federal Law BGBl. I No 100/2002 through the phrase " in the version BGBl. I No 27/2009 " replaced.

4. In § 1 para. 5 the word order shall be ", as last amended by the Federal Law BGBl. I No 98/2001 " through the phrase " in the version BGBl. I No 21/2008 " replaced.

5. In accordance with § 1 (6), first sentence, the following sentence shall be inserted:

"The liability of the depositary or of the interim depositary for the fault of third parties may not be restricted or excluded in the contract."

6. In § 2 para. 1 Z 1 lit. d will be after the parenthesis "(structured debt securities without capital guarantee)," the phrase " unless they are under Z 7 lit. b fall, " .

7. In § 2 para. 1 Z 1 lit. e becomes after the word order "as long as they can be sold in the short term," the phrase " unless they are under Z 7 lit. b fall, " .

8. In § 2 para. 1 Z 2 lit. c will be the phrase " Handelsgesetzbuch (HGB), dRGBl. S 219/1897, as last amended by the Federal Act BGBl. I No 98/2001, ' through the citation "UGB" replaced.

9. § 2 para. 1 Z 3 lit. a is:

" (a)			Shares of capital investment funds or of investment companies of open type, which are in accordance with the provisions of Directive 85 /611/EEC or sections I and Ia of the Investment Fund Act (InvFG 1993), BGBl. No. 532/1993, as last amended by the Federal Law BGBl. I n ° 69/2008, shall be excluded;
aa)				Capital investment funds within the meaning of § 20a InvFG 1993, which, in addition to liquid funds, exclusively carry out investment in accordance with Section 20a (1) (3) of the German InvFG (InvFG) 1993;
bb)				Capital investment funds, the share of derivative financial instruments of which is the derivative risk calculation and reporting regulation issued in accordance with Article 21 (3) of the 1993 InvFG in 1993, or those in the respective host country of the managing company on the basis of the article 21 of Directive 85 /611/EEC, the national provisions applicable to the Fund exceed the total risk of 100% of the Fund's assets, "

10. § 2 para. 1 Z 3 lit. b is:

" (b)			Shares in special funds which are managed by a capital investment company established in another Contracting State, excluding special funds, insofar as these characteristics are defined in accordance with § 2 (1) (3) (3) (3) (3) lit. a sublit. aa) and bb), "

11. In § 2 para. 1 Z 3 lit. c is followed by number sequence "80/2003" the phrase " in the version BGBl. I No 69/2008, " inserted.

12. In § 2 para. 1 Z 4 lit. f is after the phrase "as long as they can be sold in the short term" the phrase " and not under Z 7 lit. b fall " inserted.

13. In § 2 para. 1 Z 5 lit. a eliminates the word sequence "or in any other appropriate manner" .

14. In § 2 para. 1 Z 5 lit. b becomes after the phrase "insofar as the value of the property or rights of property rights" the phrase "at the time of the indictment of the share and securitised enjoyment rights" inserted; the phrase "or in any other appropriate manner" No.

15. In § 2 para. 1 Z 5 lit. c will be after the phrase "insofar as the value of the property or rights of property rights" the phrase "at the time of the acquisition of the shareholders ' rights" inserted; the phrase "or in any other appropriate manner" No.

16. § 2 para. 1 Z 7 lit. a and b are:

" (a)			Shares in Funds,
aa)				which are assessed in accordance with the law, the statutes or the actual exercise in accordance with the principles of risk-spreading and which are subject to high price volatility even in investments which are credit-financed, are subject to high price volatility, risk-spreading or making it difficult to assess them, with no obligation to repay the investor, and to invest in short selling and in assets whose value development is tied to such assets;
bb)				within the meaning of § 20a InvFG 1993, which, in addition to liquid funds, exclusively carry out apportionment in accordance with Article 20a (1) Z 3 InvFG 1993,
b)			Assets according to § 2 para. 1 Z 1 lit. d and e and Z 4 lit. f, where these characteristics are sublit. (aa),
		where these assessments have to be preceded by detailed risk-based analyses on qualitative, quantitative and legal aspects of the assessment, "

Article 2 (5) reads as follows:

" (5) In order to cover the cover requirement of the fund-linked life insurance in accordance with § 20 sec. 2 Z 3 VAG, the following are suitable:

1.		shares in investment funds or of investment companies of open type, which are in accordance with the provisions of Directive 85 /611/EEC or sections I and Ia InvFG 1993,
2.		Shares in real estate investment funds according to the Real Estate Investment Fund Act (ImmoInvFG), BGBl. I No 80/2003, as amended by the BGBl version. I No 69/2008.
3.		Credit in accordance with paragraph 1 Z 6 lit. a for the purpose of the temporary assessment up to a total of 10 vH of the cover requirement;
4.		Advance payments to police officers in accordance with section 21 (2) of the VAG.
		If, in the case of performance, a right to vote on the relationship between shares in capital investment funds and/or Cash benefits shall be provided in the respective Contracting State in which insurance contracts are offered to the policyholder for the selection of the capital investment funds available for the public distribution. § 3 shall not apply. "

18. In § 2 para. 6, first sentence, the word order shall be "the separate division of the deckstock" through the phrase "the prepayment beneficiary for the future of the future" replaced. In the second sentence, the word sequence " of the Income Tax Act 1988, BGBl. No. 400, as last amended by the Federal Law BGBl. I n ° 10/2003 and BGBl. I N ° 22/2003 (VfGH), " through the citation "EStG 1988" replaced. The last sentence in § 2 para. 6 is deleted.

Article 2 (7) reads as follows:

" (7) In order to cover the cover requirement of index-bound life insurance in accordance with § 20 paragraph 2 Z 4 VAG, assets pursuant to § 2 para. 1 are suitable. In the case of products with an external capital guarantee, it shall be ensured that at the time of the acquisition of the capital investment concerned, the credit rating of the underlying assets and of the guarantor shall be at least "A" and/or "A2" shall be a generally accepted credit rating agency. In the event that there is no external credit rating, an internal estimate should be made. In respect of the risks associated with the capital investment, adequate risk management is to be established for each insurance product. The provisions of § 3 shall not apply. "

20. The following paragraph 8 is added to § 2:

"(8) In the case of index-linked and capital-based life insurance, the allocation of assets to insurance products and to groups of insurance contracts is to be sufficiently documented and comprehensible."

21. § 3 para. 1 Z 1 lit. a is:

" (a)			up to 5 vH: Securities in accordance with § 2 (1) Z 1 lit. b to e and Z 2 lit. a to d of the same company-excluding legally regulated, well-founded debt securities issued by credit institutions, Pfand-und Kommunalbriefe-, loans and loans which can be used once in accordance with § 2 para. 1 Z 4 lit. b, c, e and f as well as credits according to § 2 1 Z 6 lit. a and assets in accordance with Section 2 (1) (9), relating to the same debtor or issuer, "

22. § 3 para. 1 Z 1 lit. c is:

" (c)			up to 25 vH: legally regulated, well-founded debt securities issued by credit institutions, Pfand and commune letters of the same company together with values according to lit. a and b, "

Section 3 (1) Z 2 reads as follows:

" 2.		up to 2 vH: Securities in accordance with § 2 para. 1 Z 1 lit. c with the exception of legally regulated, well-founded debt securities issued by credit institutions, deposit and communal securities of the same company, "

§ 3 (1) Z 5 lit. b is:

" (b)			up to a further 10 vH: legally regulated, well-founded debt securities issued by credit institutions, Pfand and communal letters in accordance with § 2 para. 1 Z 1 lit. c, "

25. The following Z 14 is added to § 3 (1):

" 14.		up to 10 vH in total: Assets of the same group of companies according to § 20 (3a) InvFG 1993, with the exception of assets pursuant to § 2 (1) Z 3, Z 4 lit. g, Z 5 lit. a, Z 6 lit. b, Z 7 lit a as well as legally regulated Debt securities issued by credit institutions, pawn and communal letters. "

26. In § 3 para. 2, first sentence, after the citation "§ 20 (2)" the citation "Z 1 to 4 and 5 to 7" inserted. The following second sentence shall be added:

". For the division of the cover stock of the capital investment-oriented life insurance pursuant to § 20 paragraph 2 Z 4a VAG, paragraph 1 shall apply to the cover requirement of each group of insurance contracts which have a common disposition."

27. In accordance with § 3b, the following § 3c is added:

" § 3c. (1) As far as the Insurance Supervision Act (VAG) is referred to in this Regulation, this is, if nothing else is determined in the regulation, in the version of the Federal Law BGBl. I n ° 22/2009.

(2) Where reference is made in this Regulation to the Income Tax Act 1988 (EStG 1988), this is, if nothing else is determined in the regulation, in the version of the Federal Law BGBl. I n ° 27/2009.

(3) Where reference is made in this Regulation to the Company Code (UGB), this is, if nothing else is determined in the regulation, in the version of the Federal Law BGBl. I No 70/2008.

(4) Where reference is made in this Regulation to the Investment Fund Act (InvFG 1993), this is, if nothing else is determined in the regulation, in the version of the Federal Law BGBl. I n ° 69/2008. '

28. In accordance with § 9, the following § 10 is added:

" § 10. (1) § 3 (1) Z 14 in the version of the BGBl Regulation. II No 149/2009 shall enter into force on 31 December 2009.

(2) § 2 para. 1 Z 5 lit. a, b and c in the version of the BGBl Regulation. II No 149/2009 shall not apply to assets held before 31 December 2009 in the assets of the insurance undertaking used to cover the technical provisions. "

Pribil Ettl