Rechtsprobleme des Kapitalaufschlags

The Solvency II Framework Directive will implement the competency to demand a capital add-on as a new supervisory device. If the risk profile of the undertaking deviates significantly from the assumptions underlying the standard formula or the internal model, or if significant deficiencies in the governance structure arise, the supervisory authority can require the undertaking to hold additional own funds in excess to the Solvency Capital Requirement. The essay lines out the capital add-on’s basic principles and conditions. As to the risk profile add-on, the author particularly describes the legal problems of calculating the deviation and deciding whether such deviation can be categorized as significant. Regarding the governance add-on, more fundamental problems regarding its conditions, calculation principles, and convergent application by the supervisory authorities of the member states are discussed. Moreover the essay describes the due process for setting a capital add-on and points out legal problems concerning transparency issues and legal protection.