Regulation on the investment of the tied assets of pension funds (Pension Fund-Capital Investment Regulation-PFKapAV)

Unofficial table of contents

PFKapAV

Date of completion: 21.12.2001

Full quote:

" Pension fund capital investment regulation of 21 December 2001 (BGBl. 4185), as last amended by Article 2 of the Regulation of 3 March 2015 (BGBl I). I p. 188)

V up. By Article 3 (2) (5) G v. 1.4.2015 I 434 mWv 1.1.2016
Status:	Last amended by Art. 2 V v. 3.3.2015 I 188

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Footnote

(+ + + Text evidence from: 1.1.2002 + + +) 

  

Unofficial table of contents

Input formula

Pursuant to Section 115 (2) of the Insurance Supervision Act, inserted by Article 10 (4) of the Law of 26 June 2001 (BGBl. 1310), the Federal Government decrees: Unofficial table of contents

§ 1 Investment principles and investment management

(1) The following special provisions shall apply to the investment of the tied assets of a pension fund. The provisions of § 115 (1) sentence 2 and 3 of the Insurance Supervision Act shall remain unaffected. (2) The investment of the tied assets shall be effected with the necessary expertise and care. Compliance with the general investment principles of § 115 (1) sentence 2 and 3 of the Insurance Supervision Act and of the following special provisions are due to a qualified investment management, appropriate internal capital investment principles and Control procedures to ensure strategic and tactical investment policy and other organisational measures. These include, in particular, the monitoring of all risks of the active and passive side of the balance sheet and of the relationship between the two sides, as well as an assessment of the elasticity of the investment stock against certain capital market scenarios and Investment conditions. (3) Pension funds have to ensure that they are at any time on changing economic and legal conditions, in particular changes in the financial and real estate markets, to catastrophic events with Large-scale damage cases or other unusual market situations be able to respond appropriately. In the case of the investment of tied assets in a State which is not a State of the European Economic Area (EEA) or full member state of the Organisation for Economic Co-operation and Development (OECD), also those with the facility (4) The detailed provisions of paragraphs 2 and 3, including detailed rules on the specific provisions of this Regulation and the disclosure and disclosure requirements of pension funds shall determine the supervisory authority by means of a circular. (5) Insurance contracts with a life insurance undertaking in accordance with Article 2 (1) point 5 shall be deemed to be appropriately mixed and scattered if the establishments of the insurance undertaking are sufficiently mixed and dispersed in themselves. (6) The quotas of § § 3 and 4 refer in each case to the trade-related valuation of assets (§ 341 (4), § 341b, 341c and 341d of the German Commercial Code). Unofficial table of contents

§ 2 Investment forms

(1) The tied assets may be invested in

1.

Claims for which there is a fundamental right to land in a State of the European Economic Area (EEA) or a full Member State of the OECD, or the same right, where the basic right of land is subject to the requirements of § 14 and Section 16 (1) to (3) of the Pfandbrief Act (Pfandbrief Act), inheritance rights in addition to the provisions of Section 13 (2) of the Pfandbrief Act, or the corresponding provisions of the other State;

2.

claims,

a)

which are adequately secured by cash payment or for the assets or securities in accordance with § 200 (1) to (3) of the capital investment code or equivalent provisions of another State of the EEA or of a full Member State of the OECD shall be pledged or transferred for security (securities loans);

b)

for the debt securities referred to in point 6 or 7, or transferred for security;

c)

consist of cash settlement claims of the pension fund against a reinsurer, minus any accounting liabilities arising from the reinsurer's premium claims against the pension fund;

3.

Loans

a)

to the Federal Republic of Germany, its countries, municipalities and community associations,

b)

to another State of the EEA or to a full member state of the OECD,

c)

to regional governments and local authorities of another State of the EEA or of a full Member State of the OECD;

d)

to an international organization, which also belongs to the Federal Republic of Germany as a full member,

e)

for their return and repayment, one of the points referred to in points (a), (b) or (d), a suitable credit institution within the meaning of point 18 (b), a public-law credit institution within the meaning of point 18 (c), or a credit institution multilateral development bank within the meaning of point 18 (d), the full guarantee or an insurance undertaking within the meaning of Article 6 of Council Directive 73 /239/EEC of 24 July 1973 on the coordination of the law, Administrative provisions relating to the taking up and pursuit of the business of Direct insurance other than life assurance (OJ L 327, 30.4.2004, p. 3), which was last amended by Directive 2005 /68/EC (OJ L 327, 22.12.2005, p. 238), or to Article 4 of Directive 2002/83/EC of the European Parliament and of the Council of 5 November 2002 on life assurance (OJ L 327, 22.12.2002, p. 1), which was last amended by Directive 2008 /19/EC (OJ L 327, 22.12.2008, p. 44), or a reinsurance undertaking within the meaning of Article 3 of Directive 2005 /68/EC of the European Parliament and of the Council of 16 November 2005 on reinsurance and amending the Council Directives 73 /239/EEC, 92 /49/EEC and Directives 98 /78/EC and 2002 /83/EC (OJ L 136, 31.5.1998, p. 1), which was last amended by Directive 2008 /37/EC (OJ L 327, 22.12.2008, p. 71), which has insured the default risk,

f)

to settlement institutions within the meaning of Article 8a (1) of the Financial Market Stabilisation Fund Act, to the extent that one of the bodies referred to in point (a), (b) or (d) for this settlement institution is responsible for the loss-sharing obligation pursuant to Article 8a (4) (1) sentence 1 and Point 1a of the Financial Market Stabilisation Fund Act;

4.

Loans

a)

to undertakings established in a Member State of the EEA or a full Member State of the OECD, with the exception of credit institutions, provided that, on the basis of the previous and expected future developments in the company's income and financial situation, the Contractually agreed interest and repayment are guaranteed and the loans are sufficient

aa)

by first-tier land-use rights,

bb)

or securities admitted to trading or admitted to trading in accordance with section 2 (5) of the Securities Trading Act, admitted or admitted to trading, or admitted to trading in another organised market, or

cc)

in a comparable manner; a declaration of commitment by the borrower to the pension fund (the negative statement) can only replace a loan of the loan if and as long as the borrower is already in the position of provides the guarantee for the interest and repayment of the loan;

b)

to undertakings within the meaning of point 14 (a), in which the pension fund is a shareholder (shareholder loan), where the loans meet the requirements of Section 240 (1) and (2) (1) of the Capital Investment Code;

c)

to other undertakings established in a Member State of the EEA or a full Member State of the OECD, with the exception of credit institutions, provided that such loans are sufficiently dingy or compulsory for debt purposes;

5.

insurance contracts which are covered by life assurance undertakings within the meaning of the second sentence of section 1 (2) of the Act on the Retirement Pension Scheme to cover obligations with regard to the persons entitled to benefit;

6.

" Pfandbriefe, local bonds and other debt securities issued by credit institutions having their registered office in a State of the EEA or a full member state of the OECD, if the credit institutions are protected under statutory provisions for the protection of the holders of such institutions. Debt securities are subject to special public supervision and the funds raised in the issue of debt securities are applied in accordance with the statutory provisions in assets which during the entire duration of the period of validity of the debt securities are subject to the Debt securities arising from the liabilities arising from them sufficient cover and, in the event of a failure of the exhibitor, are intended as a priority for the repayments due and the payment of the interest (the special coverage of the law existing in force);

7.

Debt securities,

a)

approved or included in or included in a stock exchange for trading or other organised market, or

b)

to be included in an organised market in accordance with the conditions of issue, provided that such debt securities are included within one year of the date of issue; or

c)

which are admitted to trading on a stock exchange in a country outside the EEA or which are admitted to or included in another organised market there;

8.

other debt securities;

9.

Claims arising from subordinated liabilities against companies or from the right of enjoyment to undertakings which

a)

have their registered office in a State of the EEA or a full Member State of the OECD; or

b)

on a stock exchange admitted to trading or any other organised market or admitted to trading on a stock exchange in a State outside the EEA or admitted to or included in another organised market there are;

10.

Asset Backed Securities (structured financial instruments secured with receivables rights) and Credit Linked Notes (financial instruments linked to credit risks) as well as other assets pursuant to § 2 (1), their income or repayment to Credit risks are linked or are transferred to a third party by means of credit risks;

a)

against undertakings established in a Member State of the EEA or a full Member State of the OECD, or

b)

authorized or included on a stock exchange for trading or in another organised market, or admitted to trading on a stock exchange in a State outside the EEA, or to another organized market there, or to such a market, or to be admitted to the market in such a market or in any other organised market are involved;

11.

Claims entered in the debtor of the Federal Republic of Germany, one of its countries or in a corresponding register of another State of the EEA or of a full member state of the OECD, or the registration thereof as the debtor's claim is made within one year of its issuance, as well as in liquidity documents (Section 42 (1) of the Act on the Deutsche Bundesbank);

12

Shares admitted to or included in a stock exchange for trading or in another organised market, or admitted to trading on a stock exchange in a State outside the EEA, or to another organised market there, or in such a market; are involved;

13.

participations in the form of

a)

other shares, business shares in a limited liability company, share shares and shareholdings as a silent partner within the meaning of the Commercial Code, if the company has a business model and if the company is a business model risks, and

aa)

has its registered office in a State of the EEA or a full Member State of the OECD,

bb)

provides the pension fund with the last annual financial statements drawn up and audited in the appropriate application of the rules applicable to capital companies; and

cc)

undertakes to continue to submit such annual accounts at each balance sheet date;

b)

shares and shares in domestic closed-end alternative investment funds (AIF) within the meaning of Section 1 (3) of the Capital Investment Code;

aa)

who invest directly or indirectly in assets under Article 261 (1) (4) of the Capital Investment Code, equity-related instruments and other instruments of corporate finance; and

bb)

managed by a capital management company which has a permit pursuant to Article 20 (1) of the capital investment code or which is registered under section 44 of the capital investment code, or by a management company established in a State of the EEA or a full member state of the OECD which is subject to the protection of investors under public supervision and has a permit or registration which is subject to the permit referred to in Article 20 (1) of the Capital Investment Code or the registration in accordance with § 44 of the capital investment code is comparable,

, as well as shares and shares in closed foreign investment assets governed by the law of a State of the EEA or of a full member state of the OECD, fulfil the requirement of double letter aa in a comparable manner and from a company within the meaning of double letter bb;

14.

Real estate in the form of

a)

, built in a State of the EEA or a full member state of the OECD, situated in a State of the EEA or a full member state of the OECD, situated on the territory of the EEA or a full member state of the OECD, and shares in a company whose territory is situated in the EEA or in a Member State of the EEA. the sole purpose of the acquisition, the building and administration of land situated in such a state or the same rights as the land of the land. The pension fund shall examine the appropriateness of the purchase price on the basis of the expert opinion of a sworn expert or in a comparable manner,

b)

Shares of a REIT-stock company or shares in a comparable capital company based in a State of the EEA or a full member state of the OECD, which are subject to the conditions of the REIT Act or to the comparable provisions of the other States,

c)

shares and shares in domestic special AIF within the meaning of section 1 (6) of the capital investment code or shares and shares in domestic closed audience-AIF within the meaning of Section 1 (3) in conjunction with paragraph 6 of the Capital Investment Code,

aa)

who invest directly or indirectly in property in accordance with Article 231 (1) (1) to (6) and Article 235 (1) of the Capital Investment Code; and

bb)

managed by a capital management company which has a permit pursuant to Article 20 (1) of the Capital Investment Code, or by a management company established in a State of the EEA which is responsible for the protection of investors of a capital investment code; is subject to public supervision and is subject to a permit similar to that provided for in Article 20 (1) of the capital investment code;

as well as shares and shares in EU investment assets within the meaning of Article 1 (8) of the Capital Investment Code, in the form of special AIF and closed audience AIF, which fulfil the requirement of a double letter aa in a comparable manner and from a company within the meaning of double letter bb;

15.

Shares and investment shares in domestic open public investment assets within the meaning of Article 1 (2) of the Capital Investment Code (UCITS) as well as shares and shares in comparable EU investment assets within the meaning of Article 1 (8) of the German Capital Investment Code (UCITS) the capital investment code, provided that they are managed by a UCITS management company established in a State of the EEA;

16.

shares and investment shares in domestic open special AIF within the meaning of Section 1 (6) of the Capital Investment Code,

a)

which meet the requirements of Section 284 of the Capital Requirements Code and are not covered by point 14 (c); and

b)

managed by a capital management company which has a permit pursuant to Article 20 (1) of the Capital Investment Code, or by a management company established in a State of the EEA which is responsible for the protection of investors of a capital investment code; is subject to public supervision and is subject to a permit similar to that provided for in Article 20 (1) of the capital investment code;

as well as shares and shares in EU investment assets within the meaning of Article 1 (8) of the Capital Investment Code, in the form of special AIF, which satisfy the requirement referred to in point (a) in a comparable manner and by a company within the meaning of point (b) shall be administered;

17.

Shares and shares in domestic investment assets within the meaning of Article 1 (1) of the Capital Investment Code,

a)

the non-public investment assets in the form of real estate special assets in accordance with § § 230 to 260 of the capital investment code,

b)

which are not covered by point 13 (b), point 14 (c), points 15 and 16; and

c)

managed by a capital management company which has a permit pursuant to Article 20 (1) of the Capital Investment Code, or by a management company established in a State of the EEA which is responsible for the protection of investors of a capital investment code; is subject to public supervision and is subject to a permit similar to that provided for in Article 20 (1) of the capital investment code;

, as well as shares and shares in EU investment assets within the meaning of Article 1 (8) of the Capital Investment Code, which satisfy the requirement referred to in point (a) in a comparable manner, are not covered by the investment forms referred to in point (b) and by of a company within the meaning of point (c);

18.

Assets at

a)

the European Central Bank or the Central Bank of a State of the EEA or of a full Member State of the OECD,

b)

a credit institution having its registered office in a State of the EEA which meets the requirements of Directive 2013 /36/EU of the European Parliament and of the Council of 26 June 2013 on access to the business of credit institutions and the supervision of credit institutions Credit institutions and investment firms, amending Directive 2002/87/EC and repealing Directives 2006 /48/EC and 2006 /49/EC (OJ L 136, 31.5.2006, p. 338), where the credit institution confirms in writing to the pension fund that it complies with the rules governing its own capital and the liquidity of credit institutions (appropriate credit institution),

c)

public credit institutions which are excluded from the scope of this Directive in accordance with Article 2 (5) of the Directive referred to in point (b);

d)

multilateral development banks, as defined in Article 117 (2) of Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and investment firms and amending the Regulation (EU) No 646/2012 (OJ L 327, 28.4.2012 1), a risk weight of 0 of the hundred is obtained.

Current assets are also considered to be assets.

(2) The tied assets may also be invested in investments which are not mentioned in paragraph 1 or which do not fulfil their conditions (opening clause). (3) The supervisory authority may also have assets in assets that are listed in the , if the concerns of the health care providers and the supply recipients do not comply with the preceding paragraphs or do not meet the requirements of the above paragraphs, and allow the limits specified in § 3 (1) sentence 2 and § 4 (1) to (4) to be exceeded. (beneficiaries) will not be affected by this and if the Member States these derogations provided for in Articles 23 or 24 of Directive 2002/83/EC and Article 18 of Directive 2003 /41/EC of the European Parliament and of the Council of 3 June 2003 on the activities and supervision of institutions for operational activities Retirement provision (OJ L 327, 18), as last amended by Directive 2009 /138/EC (OJ L 235, 23.9.2009, p. OJ L 335, 17.12.2009, p. 1). (4) Direct and indirect installations are closed

1.

in consumer loans, operating resources loans, movable property or claims on movable property and in intangible assets,

2.

which are not authorised in accordance with Article 23 or Article 24 of Directive 2002/83/EC and Article 18 of Directive 2003 /41/EC,

3.

in participations in Group companies of the pension fund within the meaning of Section 18 of the Stock Corporation Act, with the exception of assets under paragraph 1, point 5, as well as companies in which the pension fund is only passively involved, without having an operating influence on the business , or to carry out ongoing project development,

4.

in the case of undertakings to which the pension fund or its group undertakings, within the meaning of Section 18 of the German Stock Corporation Act, wholly or partly by way of a functional breakdown (Article 5 (3) (4) of the Insurance Supervision Act) or its activities directly related to the operation of pension fund transactions carried out for the pension fund or its group undertakings within the meaning of section 18 of the German Stock Corporation Act (AktG), if the company has the following Scope of the business operation substantially from the subject matter of the functional breakdown or the service activity is determined.

5. The European Economic Area, as defined in this Regulation, shall comprise the States of the European Communities and the States of the Agreement on the European Economic Area. Unofficial table of contents

§ 3 Mixing

(1) The appropriate distribution of the tied assets to different forms of investment (mixture) shall be determined subject to the further provisions of this provision according to the respective pension plan. Assets in accordance with § 2 (2) are limited to 10 per cent of the securing assets. Direct and indirect installations pursuant to Article 2 (1) (17) shall be limited to a prudent measure. (2) The supervisory authority may be responsible for the proportion of direct and indirect investments in accordance with Article 2 (1) (2) (a), (9), (10), (12) and (13). when it is necessary to safeguard the interests of the persons entitled to supply. The supervisory authority shall have the same power of direct and indirect investment in accordance with Article 2 (1) (15), (16) and (17), as well as other direct and indirect installations pursuant to Article 2 (1), the proceeds of which shall be paid or repaid to hedge funds, or Commodity risks are tied. Unofficial table of contents

§ 4 Scattering

(1) Subject to the provisions of paragraph 2, all installations falling within one and the same exhibitor (debtor) shall be limited to 5 per cent of the assets of the securing assets. If an exhibitor has accepted the guarantee against the pension fund for liabilities of a third party, then this warranty obligation shall also be credited to the quota as set out in the first sentence. Investments in shares or shares in an open investment fund according to Article 2 (1) (15), (16) and (17) do not apply to the same exhibitor (debtor), if the investment property is sufficiently dispersed. (2) For installations in the case of the same exhibitor (debtor) referred to in Article 2 (1) (3) (a), (b) or (d), a quota of 30 of the hundred of the securing assets shall apply, by way of derogation from paragraph 1. For Assets

1.

Debt securities placed on the market in the same credit institution established in a State of the EEA or a full Member State of the OECD, where such debt securities are secured by a special covering mass of a force of law,

2.

in the case of the same credit institution, in accordance with Article 2 (1) (18) (b), if and in so far as the installations are effectively secured by a comprehensive institution of the institution of the credit institution or by a Deposit Guarantee Scheme; the the exclusion of a legal claim on the performance of the Deposit Guarantee Scheme does not preclude effective protection; and

3.

in the case of the same public credit institution as defined in Article 2 (1) (18) (c) and

4.

in the case of one and the same multilateral development bank pursuant to Article 2 (1) (18) (d)

by way of derogation from paragraph 1, a quota of 15 per cent shall apply. (3) In the calculation of the quotas referred to in paragraphs 1 and 2, investments shall be made to the issuer and its group undertakings within the meaning of Section 18 of the German Stock Corporation Act (AktG) (4) In the case of shares within the meaning of Section 2 (1) (9), (12) and (13) of a company whose sole purpose is limited to holding the assets referred to in Article 2 (1) (9), (12) and (13) of this Article, the shares shall be subject to the following: (1), first sentence, on the appropriate investments of the pension fund with the other undertakings. (5) Up to 10 of the total A hundred of the security assets may be invested in a single piece of land or the same right or in shares in a company whose sole purpose is the acquisition, building and administration of in a State of the EEA or a full member state of the OECD is a real estate or the same right. The same limit applies to several legally independent plots if they form a unit economically. (6) Assets in a carrier company of the pension fund (Article 7 (1), second sentence, point 2 of the occupational pension act) may be used. of the hundred of the securing assets. If the carrier company is part of a group within the meaning of section 18 of the German Stock Corporation Act, the investments in the companies belonging to the same group of companies as the carrier company may not exceed 10 of the hundred of the securing assets. Where a pension fund is carried out by a number of undertakings, investments in such undertakings shall be carried out with the necessary caution and shall be appropriately sprinkled. Unofficial table of contents

§ 5 Congruence

In accordance with the provisions of Annex C to the Insurance Supervision Act, the tied assets shall be invested in assets denominated in the same currency as those in which the obligations to the beneficiaries are to be fulfilled. (congruence rules). By way of derogation from the limit referred to in point 6 (b) of Annex C to the Insurance Supervision Act, up to 30 of the hundred of the hedging assets may be invested in assets denominated in non-congruent currencies. In so doing, land and the rights of the land are deemed to be in the currency of the country in which they are situated. Shares and shares shall be deemed to have been invested in the currency in which they are included in an organised market; shares and shares not included in an organised market shall be deemed to have been invested in the currency of the country in which the issuer of the shares and shares are held in the currency of the country where the shares and Securities or shares shall have its registered office. Unofficial table of contents

§ 6 Transitional Regulation

(1) Compliance with the quotas referred to in § 4 (1), second sentence, second sentence, second sentence, third paragraph and fourth sentence in the version valid from 12 May 2011 shall be taken into account in the case of installations to be concluded after 11 May 2011. Installations which have already been properly carried out under the previous limits and which exceed the amended limits set out in the second sentence of Article 4 (1), second sentence, second sentence, (3) and (4), may, up to the time of their maturity, in the security and other (2) shares in public investment assets in the form of real estate assets in accordance with § § 230 to 260 of the capital investment code acquired prior to April 8, 2011, as well as shares in comparable foreign investment assets acquired prior to 8 April 2011 may be The requirements of § 2 (1) (13) (b) in the version of the Regulation of 3 March 2015 (BGBl. 188) should be taken into consideration in the case of installations to be concluded after 7 March 2015. Installations which have already been properly carried out under the preceding provisions in accordance with Article 2 (1) (13), which do not meet the amended requirements, may remain in the securing assets and other tied assets up to their due date. and installations according to Article 2 (1) (13) (b). Unofficial table of contents

Section 7 Entry into force

This Regulation shall enter into force on 1 January 2002. Unofficial table of contents

Final formula

The Federal Council has agreed.