Circular 3/2016 (VA) - Trustee for Monitoring of the Guarantee Assets

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Circular 3/2016 (
VA
) - Trustee for Monitoring of the Guarantee Assets (Sicherungsvermögen)

Business sign: VA 25-I 3252-2015/0001

12.06.2019

Introduction

Pursuant to section 315 of the
VAG
, investments allocated to the guarantee assets (Sicherungsvermögen) (section 125 of the German Insurance Supervision Act (Versicherungsaufsichtsgesetz – VAG )) are for the preferential satisfaction of legitimate claims of insured persons – and, in case of Pensionsfonds, the beneficiaries – in the event of the insurance undertaking’s insolvency. Careful selection of the trustees and deputy trustees for the guarantee assets and their fulfilment of their extensive range of tasks are thus of prime importance. The function of the trustee for guarantee assets is regulated in sections 128 to 130 of the VAG . Pursuant to section 237 (1) sentence 1 of the VAG in conjunction with section 212 (1) of the VAG , these trustee regulations also apply to Pensionsfonds. Unless explicitly mentioned in this circular, statements concerning insurance undertakings apply mutatis mutandis to Pensionsfonds.

The explanations given in this Circular regarding insurance contracts with life insurance undertakings pursuant to section 17 (1) no.
5 of the German Regulation on the Supervision of Pensionsfonds (Pensionsfonds-Aufsichtsverordnung – PFAV) shall apply mutatis mutandis to insurance contracts with life insurance undertakings pursuant to section 3 (3) of the Act on the Pension Rights Adjustment Fund (Versorgungsausgleichskasse) (Gesetz über die Versorgungsausgleichskasse – VersAusglKassG).

Depending on the undertaking on behalf of which the trustees act they must observe the relevant assessment standard when reviewing the eligibility of investments for the guarantee assets. The standard is described in greater detail in 3.3 Review of eligibility of investments held within the guarantee assets. The Circular stresses the associated deviations.

The trustees’ rights and obligations pursuant to sections 128-130 of the VAG shall apply regardless of the type of undertaking on whose behalf they act.

A public consultation has taken place prior to publication of this circular.

A. Order regarding the appointment of a trustee and deputy trustee for monitoring of the guarantee assets pursuant to sections 128 to 130 of the VAG

This order applies to undertakings which are obliged to appoint a trustee.

The obligation to appoint a trustee for guarantee assets is stipulated in section 128 (1) sentence 1 of the VAG for life insurance, substitutive health insurance, private long-term care insurance and accident insurance with premium refund.

Sections 128-130 of the
VAG shall apply

• to Pensionskassen pursuant to section 234 (1) and section 212 (1) of the
  VAG
  ;

• to funeral expenses funds (Sterbekassen) pursuant to section 219 (1) and section 212 (1) of the
  VAG
  ;

• to small insurance undertakings pursuant to section 212 (1) of the
  VAG
  ;

• to Pensionsfonds pursuant to section 237 (1) sentence 1 and section 212 (1) of the
  VAG
  .

Pursuant to section 128 (1) sentence 3 of the
VAG
, small mutual associations within the meaning of section 210 (1) sentence 1 of the VAG are only obliged to appoint a trustee and a deputy trustee subject to a corresponding order from BaFin .

Accordingly, the following general requirements apply with regard to mutual associations:

Pursuant to sections 128 et seq. of the
VAG
, a trustee and a deputy trustee must be appointed by

1. Pensionskassen and funeral expenses funds whose assets – excluding accruals and deferred income – exceed
   EUR
   2 million; and

2. health insurance undertakings whose annual premium income exceeds
   EUR
   2 million.

In specific cases, the Federal Financial Supervisory Authority (Bundesanstalt für Finanzdienstleistungsaufsicht – BaFin ) reserves the right to require the appointment of a trustee and a deputy trustee even if the above preconditions do not apply.

B. Principles and guidance notes regarding the appointment, tasks and powers of trustees pursuant to sections 128 to 130 of the VAG

The following principles and guidance notes are intended for insurance undertakings and Pensionsfonds which are obliged to appoint a trustee for monitoring of the guarantee assets or wish to do so voluntarily. In the latter case, application of sections 128 to 130 of the VAG and all related supervisory orders must be ensured by including a provision in the undertaking’s articles of association with the following wording:

“A trustee and a deputy trustee shall be appointed for monitoring of the guarantee assets. Sections 128 to 130 of the VAG and related supervisory orders shall apply mutatis mutandis.”

Sections 128 et seq. of the
VAG will thus not become directly applicable law. However, the undertaking is obliged to apply them mutatis mutandis in its business plan.

Undertakings that already had a similar provision in their articles of association before this Circular entered into force should modify it to include the above-mentioned wording in a timely manner.

1. Selection, appointment and dismissal of the trustee

The trustee shall be selected, appointed and dismissed at the due discretion of the undertaking’s supervisory board or, for smaller associations which do not have a supervisory board, at the discretion of the board of management (see section 128 (3) of the VAG ). The selected natural person should appear suitable for the position of trustee on the basis of their competences and character and should be capable, mentally, physically and time-wise, of duly performing their tasks as trustee.

1.1 Notification of
BaFin

Trustees may not be appointed until
BaFin has been notified and has confirmed that it has no objections to their appointment (see section 128 (4) of the VAG ). As a rule, BaFin should receive this notification at least 4 weeks prior to the intended appointment.

The following documents should be attached to this notification:

• a curriculum vitae of the candidate;

• a police certificate of good conduct (document type O) for the candidate.

The candidates’ signed curriculum vitae should provide information regarding their

• technical competences (see 1.2);

• independence (see 1.3);

• contact details (telephone number, home address and e-mail address).

BaFin should be provided with this person’s current contact details at all times. This obligation applies both to the trustee and to the undertaking.

If a deputy trustee is appointed as a trustee or if BaFin is already familiar with the candidate as the trustee of another undertaking or otherwise, the undertaking may refer to officially known facts in submitting its proposal. BaFin’s consent to an appointment to the position of deputy trustee does not automatically imply its consent to this same person’s appointment as a trustee.

Following the candidate’s appointment, trustee certificates will be issued upon request by the insurance undertaking, the Pensionskasse or the Pensionsfonds.

1.2 Technical competences of the trustee

In general, the candidate should have acquired the legal and financial competences required for their role as trustee through their education and/or through their professional experience to date.

These technical competences should allow the trustee to accurately assess the requirements associated with the investments on the basis of the undertaking-specific investment schedule of their insurance undertaking.

In derogation thereof, the trustee

• of Pensionskassen, funeral expenses funds and small insurance undertakings should be capable of accurately assessing the requirements associated with investments under the
  VAG and the Regulation on the Investment of Guarantee Assets of Pensionskassen, Funeral Expenses Funds and Small Insurance Undertakings (Verordnung über die Anlage des Sicherungsvermögens von Pensionskassen, Sterbekassen und kleinen Versicherungsunternehmen – AnlV );

• of Pensionsfonds should be capable of accurately assessing the requirements associated with investments under the
  VAG and "Chapter 4 Investments" of the PFAV.

The trustee should familiarise themselves with the details of securing of the guarantee assets pursuant to section 128 et seq. of the VAG upon taking office at the latest.

This also applies to the details regarding the management of the guarantee assets. In this context, the trustee should familiarise themselves with sections 125 and 126 of the VAG .

In derogation thereof, the trustee should note that the following provisions do not apply to their undertakings:

• with regard to small insurance undertakings and funeral expenses funds, the provisions of sections 124, 125 (1) sentence 2 and 3 of the
  VAG
  , pursuant to section 212 (2) no.
  5 of the
  VAG
  ;

• with regard to Pensionskassen, the provisions of section 125 (1) sentence 2 and 3 of the
  VAG
  , pursuant to section 234 (1) of the
  VAG in conjunction with section 212 (2) no.
  5 of the
  VAG
  ;

• with regard to Pensionsfonds, the provisions of section 125 (1) sentence 2 and 3, (5) and (6) of the
  VAG
  ,pursuant to section 237 (1) sentence 1 of the VAG in conjunction with section 212 (2) no.
  5 of the
  VAG and pursuant to section 237 (1) sentence 2 of the VAG .

The requirements in relation to the trustee’s technical competences will depend on the nature and volume of the investments held within the guarantee assets.

The trustee is obliged to keep up-to-date by reading the following documents, at a minimum:

• the guidance notice for trustees for monitoring of the guarantee assets on BaFin’s website (available only in German) in combination with

• BaFin’s
  RSS feed; or

• BaFin’s newsletter.

Reading and understanding the passages relating to the duties of the trustee will be deemed sufficient.

1.3 Independence of the trustee

Pursuant to section 128 (5) of the
VAG
, the trustee should object to the allocation of an investment to the guarantee assets if they do not deem it suitable for the guarantee assets, in accordance with the respective investment principles to be observed by trustees. As a rule, the trustee should also object to the disposal of assets held as guarantee assets on the basis of section 125 (1) sentence 1 of the VAG if the target volume of guarantee assets would in this case no longer be fully covered.

The trustee should therefore fulfil all of the requirements which serve to guarantee their unrestricted objectivity and discretion.

The trustee’s discretion may be restricted for reasons including the following:

• family relationships with members of the board of management or the supervisory board;

• the trustee would suffer harm in another area of interest if they were to object to a decision made by the board of management (conflict of interest);

• or if the trustee has been a member of the board of management of the same undertaking in the past 12 months.

Accordingly, the following persons are not suitable for the role of trustee:

• members of the board of management and supervisory board or other institutions (
  e.g. advisory councils) of the insurance undertaking or the Pensionsfonds or their spouses or their first or second-degree relatives by blood or marriage;

• employees of the insurance undertaking or another undertaking for which a member of the management board or supervisory board of the insurance undertaking or the Pensionsfonds has the power to issue instructions;

• members of the board of management or supervisory board and employees of an affiliate of the insurance undertaking or the Pensionsfonds within the meaning of section 15 of the German Stock Corporation Act (Aktiengesetz –
  AktG
  ), section 271 (2) of the German Commercial Code (Handelsgesetzbuch – HGB );

• members of the board of management or supervisory board and employees of the insurance carrier or an affiliate within the meaning of section 15 of the
  AktG
  , section 271 (2) of the
  HGB of a Pensionsfonds, a Pensionskasse or funeral expenses fund or a health insurance association;

• members of the meeting of members’ representatives of a mutual insurance society or of a mutual Pensionsfonds;

• the responsible actuary and independent trustees in accordance with sections 142 and 157 of the
  VAG
  ;

• lawyers, notaries, tax advisers and official auditors who undertake a significant volume of work for the insurance undertaking;

• employees of credit institutions or other undertakings with which the insurance undertaking has a material business relationship.

1.4 End of the trustee’s term of office

The trustee’s term of office may end due to dismissal, among other reasons. The trustee should be dismissed in the event that one of the preconditions for their appointment is no longer applicable (see B.1. et seq.) or the governing body of the undertaking which is responsible for the trustee’s appointment pursuant to section 128 (3) of the VAG expresses reservations or if BaFin does so pursuant to section 128 (4) of the VAG .

This will apply in case of indications that the trustee is no longer able to duly undertake their tasks.

The undertaking’s governing body which is responsible for the trustee’s appointment pursuant to section 128 (3) of the VAG should notify BaFin of any dismissal without delay, indicating the reasons.

Upon completion of the trustee’s term of office, the original copy of the trustee’s certificate issued by BaFin must be returned to BaFin without delay.

2. Deputy trustee

2.1 Same requirements

The above comments concerning the trustee apply to their deputy mutatis mutandis in accordance with section 128 (2) of the VAG .

The trustee should remain responsible for all of the guarantee assets even if multiple deputies are appointed. Accordingly, the trustee should receive regular notification from their deputies on their execution of the trustee’s tasks, in order to verify that the deputies are duly performing their activities.

2.2 Division of duties

The trustee should undertake the main duty in monitoring the guarantee assets. Their deputies should act:

• whenever the trustee is unable to do so;

• in case of an overload for the trustee, as instructed by the trustee;

• in case of complex or new types of investment. The deputy must be involved in the review of eligibility in this respect;

• regularly, to ensure that they are able to execute the tasks of the trustee confidently and competently when acting on behalf of the trustee. The frequency of their activities will depend on the nature and volume of the respective investments (proportionality principle).

The deputy should have the same rights and obligations as the trustee in relation to the insurance undertaking, with the exception that deputy should act in accordance with the trustee’s instructions in performing their tasks. This means that the trustee should decide who is to act, and in which matters and when.

The deputy should therefore receive the same equipment as the trustee (keys etc.
).

2.3 Ban on simultaneous absence

The trustee, their deputy and the board of management should be jointly responsible for avoiding a situation where the undertaking is unable to contact both the trustee and the deputy at any given time, if it may be necessary to handle key tasks of the trustee at this time, such as immediately taking under lock and key documents concerning new guarantee assets or prior written consent for disposal of assets held as guarantee assets.

2.4 Multiple deputies

Multiple deputies may be appointed in the event that the support provided by a single deputy is not sufficient. In particular, this will apply if the guarantee assets are held by means of double-locking at multiple locations, at a considerable distance from one another, or in case of a considerable distance between the place where the assets are held by means of double-locking and the place where the register of assets is kept.

2.5 Special scenario: insurance syndicates

2.5.1
In case of an insurance syndicate, i.e. if multiple insurance undertakings share exposure to a given risk, by mutual consent, and each insurance undertaking assumes a percentage share or (more rarely) a fixed amount of the sum insured, the trustee of the syndicate leader and the deputy should be appointed as further deputies of the syndicate members’ trustees if the syndicate leader holds and manages 100% of the guarantee assets of the syndicate business and has set up independent departments based on the respective percentage shares. In the case of the syndicate members, the further deputies’ exercise of the office of trustee should be restricted to investments within the scope of the syndicate business.

The syndicate leader must notify
BaFin prior to the trustee’s appointment as a deputy, and the trustee may only be appointed after BaFin has declared that it has no objections to the appointment. This confirmation of a lack of objections will only be issued once, to the syndicate leader.

In principle, any correspondence which is entered into with BaFin in relation to the syndicate should be conducted via the syndicate leader.

If there are of other types of syndicates, the requirement to appoint further trustees may be waived. However, it must always be ensured that all the portions of the guarantee assets are under the responsibility of that trustee who is assigned to the respective insurance undertaking, Pensionskasse or Pensionsfonds who has assumed responsibility for such assets and is permitted to do so in the specific factual circumstances under supervisory law.

2.5.2
The syndicate members should agree on procedures which enable the trustee, in accordance with B.2.1, to receive on a regular basis notifications from the trustee of the syndicate leader and the deputy on their execution of the trustee’s tasks. This provision should take into account the interests of all parties involved and should, in particular, protect the confidentiality of the undertaking-specific schedule of investments of the leading insurer.

3. Tasks and powers of the trustee

Execution of the tasks of the trustee may not be transferred. Accordingly, these tasks may only be fulfilled by the trustees or their deputies.
BaFin will rule on any disputes between the trustee and the undertaking concerning the duties of the trustee pursuant to section 128 (6) of the VAG .

3.1 Notification of the trustee concerning any matters relating to the guarantee assets

3.1.1
Pursuant to section 129 (4) of the
VAG
, the trustee may inspect the documents of the undertaking relating to the guarantee assets at any time, including correspondence with BaFin , and may require any necessary clarifications and documentation. The undertaking should itself enter into this obligation to provide information, in fulfilment of the trustee’s right to receive information. The undertaking should undertake to ensure that the trustee is involved in its work procedures in good time and to provide the trustee with the necessary documents for performance of the trustee’s tasks.

3.1.2
Pensionsfonds which invest in insurance contracts pursuant to section 17 (1) no.
5 of the PFAV and their trustees should note the following in this regard:

The Pensionsfonds should regularly obtain confirmation from the life insurance undertaking of the payments made and received by it and the number of new contracts concluded. This may be indicated in the form of a single total amount. The trustee should reconcile this confirmation with the entries made in the register of assets. In case of deviations, the trustee should notify the Pensionsfonds without delay.

In order to identify deviations, the Pensionsfonds should, if it merely uses a single identification number in the register of assets for each life insurance undertaking, provide an up-to-date overview on a regular basis – containing the following details, at a minimum:

• name of the beneficiary;

• contract number of the corresponding life insurance policy;

• contributions and pay-outs under this contract; and

• the value of the final balance.

3.1.3
In the service contract which it concludes with the trustee, the undertaking should include a clause pursuant to which the contents of relevant announcements fall under the scope of this service contract and must be complied with accordingly. Accordingly, upon assuming office the trustee should obtain information on relevant announcements from BaFin and keep up-to-date during their term of office.

The following announcements are relevant:

• announcements concerning investments, where they also relate to the guarantee assets,

• announcements concerning keeping of the register of guarantee assets (register of assets) and custody of the guarantee assets and

• announcements concerning this circular on trustees.

3.2 Monitoring of sufficient cover

The trustee should ensure that the respective target volume of guarantee assets is covered (even sub-annually) in the form of assets fulfilling all of the requirements for guarantee assets, pursuant to section 125 (1) sentence 1, (2) of the VAG

Pursuant to section 127 (1) sentence 1 of the
VAG
, the board of management must rectify any inadequate cover without delay.

It should not be inferred from the fact that this prescription does not automatically entail further consequences that the supervisory authority does not have reservations in case of regular inadequate cover for guarantee assets ( e.g. inadequate cover at the end of the year) if this inadequate cover is rectified without delay. This may in fact involve an irregularity that requires intervention by the supervisory authority.

On the other hand, in the case of Pensionsfonds, the fulfilment of pension plans is deemed to be guaranteed at all times, even in case of temporary inadequate cover of guarantee assets, if the preconditions laid down in section 239 (3), (4) of the VAG are met.

The obligations stipulated in sections 125 (1) sentence 1, (2) and 127 (1) sentence 1 of the VAG apply to any portion of the guarantee assets.

3.2.1 Target volume of guarantee assets

The trustee may ascertain the value of the target volume of guarantee assets e.g. on the basis of the calculations and estimates which must be produced at regular intervals and, as a rule, are to be submitted to BaFin . If the undertaking also has estimates prepared for the expected sub-annual growth of the target volume of the guarantee assets or extrapolations on the basis of the increase realised in previous years, the trustee may also inspect such documents.

3.2.2 Monitoring measures in case of inadequate cover

If the trustee determines inadequate cover for the guarantee assets during the financial year or as of the end of the year, they should notify the board of management in writing of its obligation to rectify this inadequate cover without delay pursuant to section 127 (1) sentence 1 of the VAG . If the issue is not rectified, the trustee should notify BaFin of this without delay, unless it is on record that the trustee is aware that BaFin has already otherwise learned of this inadequate cover.

3.3 Review of eligibility of investments held within the guarantee assets

Pursuant to section 128 (5) of the
VAG
, the trustee must confirm under the balance sheet that the guarantee assets have been invested in line with applicable regulations (see 3.10.1). This confirmation may only be issued if the trustee themselves has reviewed the eligibility of each individual investment immediately upon allocation to the guarantee asset without delay, and in any event within 10 bank working days.

The trustee may define the scope of the review in their own discretion, depending on the risk of each individual investment. In particular, the nature, scope and complexity of the risk must be taken into account.

The trustee must review the investments to be added to the guarantee assets (hereinafter "the investments") with a view to their eligibility as guarantee assets in accordance with the undertaking-specific schedule of investments developed by the insurance undertaking pursuant to EIOPA Guideline 25 (Final Report on Public Consultation No. 14/017 on Guidelines on system of governance).

The decision regarding the value of a specific investment shall be made taking into account the requirements of the portfolio as a whole.

To facilitate the trustee’s review of the eligibility as guarantee assets, the insurance undertaking shall provide the trustee with documents that define the prerequisites for eligibility of investments as guarantee assets under the undertaking-specific schedule of investments and enable a review which takes into account the entire portfolio. The insurance undertaking should establish procedures for this review.

The trustee should only agree to allocation to the guarantee assets if they consider the specific investment to be eligible, on the basis of their personal experience.

3.3.1 Different review parameters

3.3.1.1 Review of eligibility of investments in unit-linked life insurance

In the case of unit-linked life insurance within the meaning of section 124 (2) of the VAG , the trustee must review the eligibility of the respective funds as guarantee assets immediately upon inclusion in cover, and in any event within 10 bank working days. The fund must comply with the requirements of section 124 (2) of the VAG . To facilitate the trustee’s review, the insurance undertaking shall provide the trustee with documents showing that the requirements are fulfilled.

3.3.1.2 Pensionskassen, funeral expenses funds and small insurance undertakings

The trustees of Pensionskassen, funeral expenses funds and small insurance undertakings may issue the confirmation within the meaning of section 128 (5) of the VAG only if they have themselves reviewed the eligibility of each individual investment immediately upon allocation to the guarantee assets, and in any event within 10 bank working days.

The trustee may define the scope of the review in their own discretion, depending on the risk of each individual investment. In particular, the nature, scope and complexity of the risk must be taken into account. As part of the review, the trustee must verify compliance with the provisions of the AnlV and the requirements of the applicable circular on investments as well as BaFin’s applicable interpretative decisions.

The trustee should only agree to allocation to the guarantee assets if they consider the specific investment to be eligible, on the basis of their personal experience.

3.3.1.3 Pensionsfonds

A confirmation within the meaning of section 128 (5) of the VAG may only be issued by the trustees of Pensionsfonds if the trustees have themselves reviewed the eligibility of each individual investment immediately immediately upon allocation to the guarantee assets and within 10 bank working days at the latest.

The trustee may define the scope of the review in their own discretion, depending on the risk of each individual investment. In particular, the nature, scope and complexity of the risk must be taken into account. As part of the review, the trustee must verify compliance with the provisions of "Chapter 4 Investments" of the PFAV and the requirements of the applicable circular on investments as well as BaFin’s applicable interpretative decisions.

The trustee should only agree to an allocation to the guarantee assets if they consider the specific investment to be eligible, on the basis of their personal experience.

3.3.2 General requirements

The trustee should document their review of the investment. The scope of the documentation depends on the risks associated with the investment and is at the discretion of the trustee. This review should at least be documented by means of the trustee’s initials – if the register of assets is kept electronically, this may also be done by saving the responsible person’s ident number in non-revisable format (but no data may be modified during this process) – and the date. The undertaking should only allocate an asset to the guarantee assets in case of a positive outcome to this review.

3.4 Monitoring of keeping of the register of assets

The trustee should monitor the undertaking’s’ compliance, in keeping the register of assets, with the principles and guidance notes laid down in the circular on the establishment and keeping of the register of assets (available only in German). The trustee’s tasks thus include a regular review of ongoing handling of the register of assets (additions and withdrawals). Entries should only be made:

• in principle, as of the date of the actual entry,

• after the undertaking has acquired ownership or possession of the creditor’s right,

in case of encumbered real estate owned by the undertaking, in principle only after BaFin has determined the accepted value pursuant to section 125 (3) of the VAG .

In the case of undertakings subject to the
AnlV or the PFAV, entries should only be made:

• if the undertaking has applied for an exemption, only after the supervisory authority has granted such exemption pursuant to section 2 (3) of the
  AnlV or section 17 (3) of the PFAV;

• for insurance contracts with life insurance undertakings within the meaning of section 17 (1)
  no.
  5 of the PFAV, only after the life insurance undertaking has received the respective amount.

The investment may be entered in the register of assets after the application has been submitted but prior to approval or determination of the accepted value, if the purpose of this entry is to prevent or rectify inadequate cover of the guarantee assets. However, in this case the asset should be removed from the guarantee assets without delay and the shortfall should be otherwise rectified once it has been determined that such approval will not be forthcoming or that the accepted value will not be determined, or the requested value will not be determined.

3.5 Securing of the guarantee assets on behalf of the trustee

3.5.1 Statutory basis for securing

Pursuant to section 129 (1) of the
VAG
, the guarantee assets must be secured so that they may only be disposed of with the trustee’s consent. By virtue of this provision alone, pursuant to section 129 (1) of the VAG in conjunction with section 135 (1) of the German Civil Code (Bürgerliches Gesetzbuch – BGB ) any disposal without the trustee’s consent shall be invalid in relation to the insured persons or beneficiaries on whose behalf the guarantee assets have been established. However, the purchaser’s good faith that the asset in question did not belong to the guarantee assets would nonetheless be protected pursuant to section 135 (2) of the BGB .

Accordingly, section 129 (2) of the
VAG specifies how disposals of assets held as guarantee assets, without the involvement of the trustee, may actually be blocked, i.e. how a purchase by a third party in good faith is to be prevented. For this purpose, the trustee must maintain the guarantee assets under joint control with the undertaking (see 3.5.4) and may only hand them over in the cases permitted by law (see 3.7).

3.5.2 Purpose of securing

Securing the guarantee assets will enable the trustee to prevent the disposal of assets held as guarantee assets if the target volume of guarantee assets is not fully covered or if inadequate cover is feared. Securing the guarantee assets thus serves to prevent inadequate cover. If this should nonetheless materialise, the trustee should enact the measures outlined under 3.2.2. If assets leave the guarantee assets without being disposed of by the board of management and thus without the involvement of the trustee – e.g. due to scheduled loan repayments – where necessary the trustee should link the disposal of any guarantee assets still held under joint control ( i.e. the handover of the documents issued for the assets held as guarantee assets – e.g. mortgage certificates, land charge certificates, promissory notes) with an obligation to rectify any inadequate cover that results.

3.5.3 Guarantee assets to be secured

The guarantee assets to be secured include any investments entered in the register of assets, with the exception of prepayments for the insurance undertaking’s own insurance certificates.

3.5.3.1 Securing of securitised assets held as guarantee assets

If the handover of a specific deed is necessary, or is common in business dealings, for disposal of the asset held as guarantee assets, this deed should be secured.

Accordingly, deeds such as the following should be secured: mortgage certificates and land charge certificates, registered bonds, promissory notes and declarations of assignment, physical securities (stückemäßig verbriefte Wertpapiere) (pursuant to the undertaking-specific schedule of investments; section 2 (1) nos. 1 - 4, 6, 8 - 10, 18 and (2) of the AnlV ; section 17 (1) nos. 1 - 6, 8 - 10, 18 and (2) of the PFAV). Policies of Pensionsfonds on the conclusion of insurance contracts with life insurance undertakings (pursuant to section 17 (1) no. 5 of the PFAV) should also be secured if the policy exists in the form of an insurance certificate. If this is not the case, the trustee must secure a copy of the reinsurance contract and a list – to be regularly updated as necessary – of the persons insured and the respective amounts to be covered.

3.5.3.2 Securing of assets held as guarantee assets which are not securitised through a deed

If the handover of specific deeds is not required for disposal of the asset held as a guarantee asset and an entry in the land register or the equivalent register of another country is instead necessary, this asset should be secured in the land register or the equivalent register of the other country. For example, this is necessary for real estate and for claims secured by non-certificated mortgage liens (pursuant to the undertaking-specific schedule of investments; section 2 (1) nos. 1 and 14 of the AnlV ; section 17 (1) nos. 1 and 14 of the PFAV).

In this case, proof that the asset can actually be effectively secured on behalf of the trustee by means of this registration should be provided in the form of a legal opinion, if the function and significance of any entries in the land register or the register held by another country are not the same as in Germany and there is thus a risk of the requirements specified in this circular being undermined.

If neither the handover of specific deeds nor entry in a register is envisaged in the other country, in principle securing on behalf of the trustee should be documented by means of legal opinions. For similar investments made in the past, existing legal opinions can be used.

Accordingly, dematerialised securities (stückelose Wertpapiere), book-entry securities, savings account deposits, term and fixed-term deposits (pursuant to the undertaking-specific schedule of investments; section 2 (1) nos. 6, 7, 11 and 18 of the AnlV ; section 17 (1) nos. 6, 7, 11 and 18 of the PFAV) should be secured in the bank’s custody ledger, in the debt register or an equivalent register in another country, in a savings bank book or on the accounts for term and fixed-term deposits and for current credit balances.

3.5.3.3 Securing of securitised and non-securitised collateral

If an investment is only suitable for the guarantee assets due to specific collateral, this collateral should also be secured on behalf of the trustee.

If a guarantee has been issued for a claim forming part of the guarantee assets or if a (mortgage) lien has been established, pledged or transferred by way of collateral for this claim, the guarantee document, the insurance policy, the mortgage deed or the land charge certificate, the credit balances or the securities (pursuant to the undertaking-specific schedule of investments; section 2 (1) nos. 2 - 4 (a) of the AnlV ; section 17 (1) nos. 2 - 4 (a) of the PFAV) shall also be blocked on behalf of the trustee. This also applies if a separate guarantee assets securities account is established in order to secure collateral resulting from securities lending transactions.

If this collateral is not securitised, the comments made in the above section apply mutatis mutandis to its securing. For example, non-certificated mortgages and land charges established for the undertaking which secure a promissory note loan (pursuant to the undertaking-specific schedule of investments; section 2 (1) no. 4 (a) of the AnlV ; section 17 (1) no. 4 (a) of the PFAV) should be blocked on behalf of the trustee in the land register or in equivalent registers in other countries. If security is not provided either through a land charge certificate or through an entry in a register in another country, equivalent securing of the trustee should be documented by means of legal opinions.

Securing is not possible in the same way in case of syndicated loans which are secured by means of certificated or non-certificated mortgage liens. Instead, the board of management of the syndicate leader should obtain the trustee’s written consent prior to any disposal of the lien, release from lien, extension of limit for charges of equal rank etc. Where applicable, the trustee should ensure compliance with this obligation.

3.5.4 Form of securing: Joint control

Joint control may be established by means of double-locking or a blocking note. Assets located outside the scope of the VAG should be secured accordingly.

3.5.4.1 Double-locking

If the individual asset held as a guarantee asset is securitised through a document and the undertaking holds such documents in its own safe or a rented safe, to establish joint control the safe should have two different locks (double-locking). The trustee and the undertaking should each hold a full set of keys for one of the locks, in such a way that they are unable to access the documents held in custody without one another.

If the safe does not have a double-bolt mechanism, double-locking should be established by placing a lockbox inside the safe (safe deposit box). The trustee shall receive the keys to the safe, and the undertaking the keys to the lockbox, or vice versa. The safe rental agreement is to stipulate that the rental rights may only be jointly exercised by the trustee and the undertaking. The bank will verify compliance with this provision by controlling access to the safe deposit box system.

Once the trustee and the undertaking have opened the safe, the trustee should remain in the safe deposit vault while the safe is open, in order to comply with their monitoring duties.

If a safe includes other assets as well as assets held as guarantee assets, the guarantee assets must be locked up separately in this safe. The undertaking is to keep the keys for the safe and the trustee is to keep the keys for the safety device which is protected against removal ( e.g. lockable cabinet) and which holds the documents for the guarantee assets. The trustee is not obliged to be present if only the safe is opened.

3.5.4.2 Blocking note

3.5.4.2.1 Requirement of a blocking note

If an individual asset held as a guarantee asset is not securitised through a document, to establish joint control a blocking note should be entered in the land register and the debt register or equivalent registers in the other countries, in the bank’s custody ledger and on the accounts for term and fixed-term deposits and for current credit balances. With regard to securing, reference is made to the comments made under 3.5.3.2.

The same applies if an asset held as a guarantee asset is securitised through documents but the undertaking does not keep these documents in its own safe or a rented safe and instead wishes to keep them in a bank securities account.

3.5.4.2.2 Wording of the blocking note

The blocking note should be worded as follows:

“This real estate, alternatively: mortgage claim, land charge, share in a company, book-entry security, securities account, bank account may only be disposed of subject to the prior written consent of the trustee appointed pursuant to section 128 (1) of the VAG or of their deputy.”

The following wording should be used for voluntarily appointed trustees:

“This real estate (mortgage claim, land charge, book-entry security, securities account, bank account) may only be disposed of subject to the prior written consent of the trustee appointed in accordance with section 128 (1) of the VAG or of their deputy.”

In case of the disposal of real estate situated within Germany, non-certificated mortgages and non-certificated land charges section 29 of the German Land Register Code (Grundbuchordnung – GBO ) already stipulates that the trustee may only grant their consent, in the specified form, prior to this disposal. In such cases, there is no need for the words “prior written” before “consent of the ... trustee” in the wording of the blocking note.

3.5.4.3 Blocking note for specific types of investment

Shares in a limited liability company, a real estate company, limited partner’s shares and participating interests held as a silent partner within the meaning of the HGB should be blocked by including the blocking note in the shareholders’ agreement, participation rights for which no securities have been issued by including the blocking note in the participation rights agreement.

Claims resulting from securities lending transactions should be secured by including a blocking note in the (framework) agreement.

If a savings account deposit (pursuant to the undertaking-specific schedule of investments; section 2 (1) no.
18 of the
AnlV
; section 17 (1) no.
18 of the PFAV) forms part of the guarantee assets, the blocking note should be entered in the savings account passbook and the account management documents of the credit institution. It is not necessary for the savings account passbook itself to be kept under the joint control of the trustee and the undertaking; its safe custody is sufficient.

For claims resulting from insurance contracts pursuant to section 17 (1) no.
5 of the PFAV, global policies and master agreements should also include a blocking note in regard to the assignment of claims.

3.5.4.4 Monitoring of entry of the blocking note

The trustee should verify – e.g. by inspecting the undertakings’ documents pursuant to section 129 (4) of the VAG – that each investment entered in the register of assets which is not held by means of double-locking is blocked on their behalf through a materially correct blocking note or else is blocked immediately upon entry in the register of assets. This block may be established either by the undertaking allocating the newly acquired asset to an account or securities account which has already been duly blocked or by entering a new blocking note in the land register, the debt register or equivalent registers in the other countries or in the bank’s custody ledger.

3.5.4.5 Monitoring of enforcement of the blocking note

The trustees should verify compliance with the entered blocking note by the insurance undertaking, the credit institution, the land and debt registries or the equivalent registration authorities in the other countries. For instance, if the insurance undertaking or the credit institution ignores the blocking note, the trustees should without delay prompt the respective undertaking to comply with this blocking note and notify BaFin if this is to no avail.

3.5.5 Additional requirements for certain types of investment

3.5.5.1
In case of registered bonds – including bearer instruments transferred to the name of the undertaking – notes receivable and loans (pursuant to the undertaking-specific schedule of investments; section 2 (1) nos. 3, 4, 6, 8, 18 and (2) of the AnlV ; section 17 (1) nos. 3, 4, 6, 8, 18 and (2) of the PFAV) and in the case of insurance contracts in accordance with section 17 (1) no. 5 of the PFAV, the debtors/the debt-managing agencies should be notified (with confirmation of receipt) without delay that these investments may only be assigned or pledged subject to the prior written consent of the trustee or the deputy. This information should be passed on both for investments acquired directly and for those acquired through assignment. If such investments have been pledged or transferred as collateral, the debtor of this collateral is also to be notified of them having been blocked on behalf of the trustee.

3.5.5.2
The following wording should be used:

“We have allocated the loan/the registered bond/the insurance contract to our guarantee assets which have been blocked on behalf of our trustee appointed pursuant to section 128 (1) of the German Insurance Supervision Act (Versicherungsaufsichtsgesetz – VAG ) and their deputy. Accordingly, assignments or pledging are only permissible with the prior written consent of the trustee or their deputy (section 129 of the VAG ). In the event of assignment/pledging, we will therefore send you the declaration of consent provided by the trustee/deputy together with the notice of assignment/pledging and – if necessary – copies of the official trustee’s certificate and our list of specimen signatures (board of management and trustee). Please confirm receipt of this letter on the attached copy.”

3.5.5.3
Pensionsfonds whose investments comprise insurance contracts pursuant to section 17 (1) no.
5 of the PFAV are not exempt from the requirement for the target volume of guarantee assets to be covered at all times. To avoid the risk of inadequate cover (even briefly) due to payments under these insurance contracts – particularly for Pensionsfonds whose guarantee assets exclusively comprise insurance contracts pursuant to section 17 (1) no. 5 of the PFAV – these payments should be made to an account blocked on behalf of the Pensionsfonds’ trustee. The obligated life insurance undertaking should be notified of this, subject to receipt of confirmation. This applies for as long as inadequate cover cannot be excluded.

In case of the claims of a Pensionsfonds resulting from investments pursuant to section 17 (1) no.
5 of the PFAV, before the investment is allocated to the guarantee assets the obligated life insurance undertaking should provide a declaration confirming its waiver of any setoff or pledging (in accordance with the sample pledging waiver declaration form which is provided in the annex of the currently applicable circular on the register of guarantee assets).

3.5.5.4
If the asset is a share in a real estate company, the blocking note should stipulate in the shareholders’ agreement that these shares may only be disposed of subject to the prior written consent of the insurance undertaking’s trustee or the deputy, to the extent that and as long as the insurance undertaking’s guarantee assets include shares in companies.

3.5.6 Date of securing

The assets held as guarantee assets or the documents securitising them should be secured immediately upon entry of the individual asset in the register of assets and within 10 bank working days at the latest. Deviations from these provisions are permitted in the case of international issuers. In principle, the date of the actual securing is the relevant date. This time limit may only be exceeded without any fault on the part of the respective undertaking. If this time limit is exceeded, the fact that it has been exceeded and the reasons for this should be documented. If the undertaking requires the involvement of the land registry for entry of the trustee’s blocking note, it is acceptable to consider the date of the undertaking’s submission of a full and correct application to the land registry to be the relevant date.

The trustee should monitor immediate securing.

3.5.6.1 Securing of dematerialised securities (stückelose Wertpapiere)

Dematerialised securities (stückelose Wertpapiere) and securities which are only issued in physical form at a later date (global certificate procedure; scrip clearing; provisional certificate procedure) should be secured on a guarantee assets securities account blocked on behalf of the trustee immediately upon being credited to a securities account and entered in the register of assets, if they have not already been credited to a blocked guarantee assets securities account.

3.5.6.2 Securing despite lack of contract documents

Contract documents which have not yet been handed over shall not hinder the immediate entry of the relevant investment in the register of assets and its securing on behalf of the trustee insofar as these documents are not required for the transfer of title or the creditor’s right.

3.5.6.3 Securing prior to entry in the register of assets

If an asset is already secured prior to entry in the register of assets, it should be entered immediately. The comments made under 3.5.6 apply mutatis mutandis in relation to the time limit for entry. However, in case of real estate, non-certificated mortgages and land charges the trustee’s blocking note may already be entered upon entry of ownership or the mortgage lien in the land register or the equivalent register of the other countries, even if entry in the register of assets is only possible subject to a significant delay.

However,
BaFin will not object if the trustee’s blocking note has been entered prior to entry in the register of assets.

3.5.6.4 Securing of registered bonds and promissory note loans

In principle, a claim in the form of a registered bond or a promissory note loan may only be allocated to guarantee assets if the purchaser (who is also the holder of the guarantee assets) holds the document, since only then will a claim arise on the issuer.

Earlier eligibility for allocation to the guarantee assets will be established if the purchase agreement includes a corresponding provision regarding this claim and the party to the transaction is expressly notified in the purchase agreement of the urgent supervisory need for immediate delivery of the documents, due to the envisaged “allocation to the guarantee assets”.

Such a provision should be worded as follows:

“The Parties are agreed that as of the acquirer’s payment of the purchase price the sold claim for repayment of the loan shall be transferred to the acquirer, together with any secondary rights, without the need for an additional declaration of assignment. Subsequent issuance of the deed of assignment is normal in business dealings and is for evidentiary purposes only.”

3.6 Custody and management of the guarantee assets

Details regarding the register of assets and custody of the guarantee assets are stipulated in the circular on the register of guarantee assets currently applicable to the relevant undertaking.

3.6.1 Separate management and custody within the territory of Member States and
EEA countries

3.6.1.1
The tasks of the trustee include verifying that the assets held as guarantee assets are managed separately from any other assets ( e.g. separately from other asset blocks or other guarantee assets/independent sections of the guarantee assets and holdings of other undertakings) and are held within the territory of the Member States and EEA countries. This provision applies to any form of management and custody.

3.6.1.2
In addition, the trustee must verify in case of custody outside the territory of the Member States and EEA countries that BaFin has granted the permission required pursuant to section 125 (4) of the VAG .

3.6.2 Credit institutions’ pledging waiver declaration

In case of custody in a bank safe, jacket custody or collective custody and in case of the investment of assets held as guarantee assets in term and fixed-term deposits, savings deposits and current credit balances, the trustee should verify whether they have received the credit institutions’ pledging waiver declarations (see the form in the annex of the circular on the register of guarantee assets currently applicable to the relevant undertaking). The submission of a pledging waiver declaration is not required for securities portfolios held by Bundesrepublik Deutschland Finanzagentur GmbH .

3.6.3 Completeness check

The trustee should verify regularly, e.g. at the end of the financial year, by means of sampling that the assets held as guarantee assets entered in the register of assets

• are held in the undertaking’s safe or in a rented bank safe;

• are listed in the credit institutions’ latest securities account statements;

• are entered in the land registers and debt registers or the equivalent registers in the other countries or in savings bank books; or

• are posted on the term and fixed-term deposit accounts indicated in the register of assets and on the accounts kept for current credit balances.

3.7 Handover of guarantee assets kept under the trustee’s joint control

Pursuant to section 129 (2) of the
VAG in conjunction with section 130 (1) of the VAG , the trustee may only hand over the guarantee assets secured by means of joint control subject to certain preconditions. In addition to the preconditions listed below which are specified in section 129 (2) of the VAG , the preconditions laid down in section 130 (1) of the VAG must also be complied with.

The trustee may, and must, release assets held as guarantee assets if

• this is necessary in order to enter into, or revise, investments or if

• the assets are to be released upon termination of the insurance relationship or due to a change in the business plan or if

• the guarantee assets will still have sufficient cover even after this withdrawal.

3.7.1 Handover of assets held as guarantee assets in case of excess coverage, section 129 (2) sentence 2 first alternative of the
VAG

Under section 129 (2) sentence 2 first alternative of the VAG , the trustee is required to hand over an asset held as a guarantee asset if the respective target volume of guarantee assets will remain fully covered with assets listed in the register of assets even after the removal of the asset in question.

In principle, consent for disposal of an asset held as a guarantee assets is subject to the trustee’s prior verification of the approximate target and actual volumes of the relevant guarantee assets.

If the trustee determines that the target volume is inadequately covered even without taking this disposal into consideration, they should refuse to grant consent to this disposal and should arrange for this inadequate cover to be rectified.

If the target volume of guarantee assets would be inadequately covered following this disposal, the trustee should only grant his consent to it subject to the preconditions listed in the following sections.

3.7.2 Handover of assets held as guarantee assets upon allocation of substitute assets, section 129 (2) sentence 2 second alternative of the
VAG

Under section 129 (2) sentence 2 second alternative of the VAG , the trustee is moreover obliged to hand over an asset held as a guarantee assets if the board of management’s disposal of this security would give rise to inadequate cover but substitute assets will be concurrently allocated to the guarantee assets in the necessary amount. The trustee must monitor allocation of the substitute assets.

3.7.3 Handover of assets held as guarantee assets in case of the undertaking’s handover obligation, section 129 (2) sentence 3 of the
VAG

If the undertaking is obliged to hand over an instrument of debt – e.g. following a final repayment of a claim secured by a mortgage lien or a promissory note loan – pursuant to section 129 (2) sentence 3 of the VAG the trustee is obliged to agree to this handover even if the target volume of guarantee assets is not fully covered and the undertaking does not concurrently allocate substitute assets. However, the trustee must issue their consent pursuant to section 127 (1) sentence 1 of the VAG subject to the proviso that this inadequate cover is to be rectified without delay, e.g. through reinvestment of the funds returned to the undertaking in investments which are suitable for the guarantee assets and their entry in the register of assets. The trustee must monitor rectification of this inadequate cover.

3.7.4 Handover of assets held as guarantee assets upon drawing and calling in securities; coupons

If the undertaking is required to present documents by a certain date in order to avoid interest penalties, the comments made in the previous section apply mutatis mutandis. Subject to the proviso indicated therein, even in case of inadequate cover for the guarantee assets the trustee must thus release drawn or called-in securities in a timely manner so that they can be presented as of the redemption date. The same applies to coupons (interest coupons, dividend coupons) for fixed income securities, shares and investment units which must be redeemed as of a specific date.

3.7.5 Temporary removal of assets held as guarantee assets, section 129 (2) sentence 4 of the
VAG

If it is necessary for documents to be temporarily removed from the safe or securities account, e.g. a mortgage deed for presentation to the land registry or the equivalent authorities in the other countries, this will not reduce the guarantee assets. Pursuant to section 129 (2) sentence 4 of the VAG , the trustee must agree to this temporary removal if they have determined that it is necessary. However, the trustee should ensure that the undertaking duly keeps the register of temporary removals in accordance with the currently applicable circular on the register of assets and that removed documents are immediately returned to the joint control of the trustee and the undertaking once the reason for their removal is no longer applicable.

3.8 Date of the trustee’s consent to the handover of assets held as guarantee assets

The trustee must verify whether the preconditions have been fulfilled for the handover of an asset held as a guarantee asset before this asset leaves the safe or the securities account marked with a blocking note etc. Otherwise, in case of (feared) inadequate cover for the guarantee assets the trustee would be unable to prevent the reduction in the volume of guarantee assets.

The trustee should therefore verify whether the preconditions for handover have been fulfilled at the latest:

• in case of real estate, claims secured by means of non-certificated mortgage liens and book-entry securities, prior to entry of the new owner or creditor in the land register or debt register or the equivalent registers in the other countries;

• in case of claims secured by certificated mortgage liens, registered bonds and promissory note loans, prior to removal of the mortgage deed or the land charge certificate, the registered bond, the certificate of indebtedness or the assignment declaration from the safe; in case of an auction request submitted by the undertaking which includes real estate situated in Germany due to a non-certificated mortgage lien included in the guarantee assets, by no later than the auction date, since pursuant to sections 89, 91 of the German Act on Compulsory Auctions (Zwangsversteigerungsgesetz –
  ZVG
  ) the mortgage lien will only expire upon announcement of the court order conferring title to this real estate;

• in case of securitised debt securities, shares and units prior to the securities’ withdrawal from the safe or the securities account or, for dematerialised securities (stückelose Wertpapiere), prior to their transfer from the undertaking’s securities account to the securities account of their new owner;

• in case of securities loans, prior to the transfer of securities to the securities borrower or, at the establishment of a separate guarantee assets securities account for securities lending purposes, prior to the transfer of securities to this securities account and prior to disposal of the claims resulting from securities lending transactions;

• in case of term and fixed-term deposits, current credit balances and savings deposits, prior to any change being made on the respective account or prior to entry of the disposal on the savings account passbook.

Due to the necessary cover check, the requirement of the trustee’s prior consent for disposals of assets held as guarantee assets applies without exception, e.g. even if

• the asset which is to be removed from the guarantee assets has been inadvertently allocated to the guarantee assets;

• the asset is only to be transferred or assigned temporarily or is to be regrouped within the assets of the undertaking;

• the security or loan has already been repaid in full, the relevant security has thus already left the guarantee assets; or

• the proceeds realised at the sale of the asset are immediately reinvested in assets which are suitable for the guarantee assets.

3.9 Form of the trustee’s consent to the handover of assets held as guarantee assets

Under section 129 (3) of the
VAG
, the trustee may only grant their consent to a disposal in writing.

Consent may also be given electronically by providing this declaration with a qualified electronic signature, including accreditation from the provider, within the meaning of the German Electronic Signature Act (Signaturgesetz – SigG ). The recipient of the signature should have provided the trustee with written confirmation that it verifies all electronically signed documents. The trustee should keep the signature card and the PIN separately and protect them against external access.

The undertaking should document the trustee’s consent by means of the trustee’s signature and the date of their consent.

Even in case of self-custody and custody in a rented bank safe, the trustee’s involvement in the opening of the safe is no substitute for written consent for disposal of the guarantee assets deed which is to be removed.

3.9.1 Individual consent

Written consent should refer to precisely designated assets held as guarantee assets. Consent may not therefore be provided in general for any assets held as guarantee assets in a specific class of investment, or up to a specific total accepted value.

However, the relevant assets held as guarantee assets may be grouped in lists. If this option is made use of, written consent should be obtained at the earliest 4 weeks prior to disposal of the assets held as guarantee assets.

3.9.2 Prior written consent in case of urgent sales

The trustee’s prior written consent is also essential in case of unforeseeable urgent sales of shares, fixed income securities and other non-deferrable disposals.

If the trustee or the deputy has agreed to this disposal in writing, in case of custody in a securities account the undertaking may notify the custodian bank of this by telephone, fax or e-mail so that the security held as a guarantee asset can be removed from the securities account and dispatched. The custodian bank should subsequently be provided with the trustee’s written consent without delay.

3.10 Certification by the trustee

3.10.1 Certification at the end of the balance sheet; penalty provision

The declaration which the trustee is required to make at the end of the balance sheet pursuant to section 128 (5) of the VAG should be worded as follows:

“I hereby certify in accordance with section 128 (5) of the VAG that the investments listed in the register of assets have been invested in accordance with applicable statutory and supervisory requirements and have been secured in the required manner.”

Culpably issuing a materially incorrect certification – e.g. if the target volume of guarantee assets has inadequate cover – is subject to the penalty indicated in section 331 (2) no.
2a, (3) of the
VAG
.

An unqualified certification may be issued under the proviso that, based on the applicable review parameters of the trustee, the assets

• are eligible (see 3.3 Review of eligibility of investments held within the guarantee assets);

• are duly kept pursuant to section 125 (4) of the
  VAG
  ; and

• are secured on behalf of the trustee and the deputy pursuant to section 129 of the
  VAG
  .

If one of these preconditions is not fulfilled, the notice of confirmation must be restricted accordingly or else must be refused. If the target volume of guarantee assets has not been fully covered, the certification must indicate the upper limit for the assets to be “invested and maintained in compliance with the applicable rules”.

3.10.2 Certification for the register of assets

The trustee should also issue a certification corresponding to the declaration provided pursuant to section 128 (5) of the VAG for the register of assets.

3.11 Compensation obligation

If the trustee culpably violate their obligations and this gives rise to damage, they may be held liable for this pursuant to section 823 (2) of the BGB in conjunction with sections 129, 128 (5) of the VAG .

C. Cancelled circular and validity

This circular will come into force upon its receipt. Circular 4/2014 ( VA ) is cancelled as at the same date.

D
. Advice on legal remedies

An objection against the order set out in section A may be filed with the Federal Financial Supervisory Authority in Bonn or Frankfurt am Main within one month of notification. Objections must be submitted to the Federal Financial Supervisory Authority (Bundesanstalt für Finanzdienstleistungsaufsicht), Graurheindorfer Straße 108, 53117 Bonn, or Marie-Curie- Str. 24-28, 60439 Frankfurt am Main, in writing or must be recorded there.

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