1.When assessing whether certain own funds that are eligible to cover the Solvency Capital Requirement referred to in Articles 69, 72, 74, 76, 78, and 79 of a related insurance or reinsurance undertaking, a related third country insurance or reinsurance undertaking, an insurance holding company or a mixed financial holding company, cannot effectively be made available to cover the group Solvency Capital Requirement, the supervisory authorities shall consider all of the following elements:
whether the own-fund item is subject to legal or regulatory requirements that restrict the ability of that item to absorb all types of losses wherever they arise in the group;
whether there are legal or regulatory requirements that restrict the transferability of assets to another insurance or reinsurance undertaking;
whether making those own funds available for covering the group Solvency Capital Requirement would not be possible within a maximum of 9 months.
2.►M13In the assessment referred to paragraph 1, the supervisory authorities shall consider the restrictions that would exist on a going-concern basis.◄
In the assessment referred to in the first paragraph, the supervisory authorities shall also take into account any costs to the participating insurance or reinsurance undertaking or insurance holding company or mixed financial holding company, or to any related undertaking, that making such own funds available for the group is likely to entail.
3.The following items shall be assumed not to be effectively available to cover the group Solvency Capital Requirement:
ancillary own funds;
preference shares, subordinated mutual members account and subordinated liabilities;
an amount equal to the value of net deferred tax assets;
items referred to in Article 222(2) of Directive 2009/138/EC.
For the purposes of point (c) of the first subparagraph, the amount of deferred tax asset may be reduced by the amount of the associated deferred tax liability provided that those deferred tax assets and associated deferred tax liabilities both arise from the tax law of one Member State or third country and the taxation authority of that Member State or third country permits such offsetting.
Where the participating undertaking can demonstrate to the satisfaction of the group supervisor that the assumption referred to in points (a), (b) and (c) of the first subparagraph for one of the items is inappropriate in the specific circumstances of the group, the participating undertaking may include that item in the own funds available to cover the group Solvency Capital Requirement.
4.The following items shall in any case not be considered as effectively available to cover the group Solvency Capital Requirement:
any minority interest in a subsidiary exceeding the contribution of that subsidiary to the group Solvency Capital Requirement, where the subsidiary is an insurance or reinsurance undertaking, a third country insurance or reinsurance undertaking, an insurance holding company or a mixed financial holding company;
any minority interest in a subsidiary ancillary services undertaking;
any restricted own funds item in ring-fenced funds as referred to in point (b) of Article 99 of Directive 2009/138/EC and in Article 80 of this Regulation.
4a.The amount of minority interest in a subsidiary exceeding the contribution of that subsidiary to the group solvency as referred to in paragraph 4, point (a), shall be calculated by multiplying the amount referred to in point (a) of this paragraph by the factor referred to in point (b) of this paragraph:
the difference between the total eligible own funds of the subsidiary net of intragroup subordinated debt and ancillary own funds, and the higher of the following:
the contribution of the subsidiary undertaking to the group Solvency Capital Requirement referred to in paragraph 6;
the total amount of non-available own fund items other than those referred to in paragraph 4 from the subsidiary undertaking, net of intragroup subordinated debt and ancillary own funds;
the difference between 1 and the proportion of the subscribed capital that is held, directly or indirectly, by the parent undertaking belonging to the group for which the group solvency is calculated.
5.Where an own-fund item of a related insurance or reinsurance undertaking, third-country insurance or reinsurance undertaking, insurance holding company or mixed financial holding company cannot effectively be made available to cover the group Solvency Capital Requirement, this own fund item may only be included in the calculation of group solvency up to the contribution of that related insurance or reinsurance undertaking, third-country insurance or reinsurance undertaking, insurance holding company or mixed financial holding company to the group Solvency Capital Requirement.
6.Where a related insurance or reinsurance undertaking, third-country insurance or reinsurance undertaking, insurance holding company or mixed financial holding company is included in the consolidated data pursuant to points (a) or (c) of Article 335(1), its contribution to the consolidated group Solvency Capital Requirement shall reflect diversification benefits and be calculated as follows:
where the consolidated group Solvency Capital Requirement is calculated, in relation to that related undertaking, on the basis of the standard formula, the proportional share of the Solvency Capital Requirement of that related undertaking multiplied by a percentage corresponding to the proportion that the diversified component of the consolidated group Solvency Capital Requirement, as laid down in Article 336 (a), bears to the sum of the Solvency Capital Requirements of each of the undertakings included in the calculation of that diversified component of the consolidated group Solvency Capital Requirement;
where the consolidated group Solvency Capital Requirement is calculated, in relation to that related undertaking, on the basis of an internal model, the Solvency Capital Requirement of that related undertaking multiplied by a percentage corresponding to the proportion of the diversification effects at group level that are attributed to that related undertaking, determined by that internal model, provided that the sum of such percentages for all the related insurance and reinsurance undertakings, insurance holding companies or mixed financial holding companies included in the consolidated calculation based on the internal model equals 100 %.
The percentage referred to in the first subparagraph, point (a), shall not exceed 100 %.