I.-The solvency margin referred to in Article L. 334-1 is made up, after deduction of losses, the portion of acquisition costs not recognised as a representation of regulated commitments and other intangible items, of the following items:
1. However, preference shares as defined in article L. 228-11 of the French Commercial Code may be issued only if they meet the conditions laid down by order of the Minister for the Economy, relating in particular to the financial rights attached and the corresponding payments, which must be capable of being suspended and in this case are not carried forward to a subsequent financial year;
2. Reserves of any kind, regulatory or free, not corresponding to commitments, including the capitalisation reserve;
3. Profits, surpluses or losses brought forward, after deduction of dividends to be paid in respect of the last financial year;
4. For mutual insurers and unions governed by Book II of the Mutual Code and provident institutions and unions governed by Title 3 of Book 9 of the Social Security Code, the loan or loans for development funds. However, from half the duration of a loan, it is only included in the solvency margin for its value progressively reduced each year by a constant amount equal to double the total amount of this loan divided by the number of years of its duration.
II – The solvency margin may also be constituted by :
1. Funds actually paid out from the issue of subordinated securities or loans, as well as preference shares as defined in article L. 228-11 of the Commercial Code, other than those of a non-cumulative nature mentioned in 1 of I. These subordinated securities and loans and preference shares must meet the conditions, particularly in terms of duration and redemption, which are set by order of the Minister for the Economy. These funds are accepted up to 50% of the required solvency margin or the solvency margin, whichever is lower. However, only 25% of the required solvency margin may be taken into account if the funds come from fixed-term securities or loans. Any repayment made irregularly may, in accordance with the provisions of Section 6 or Section 7 of Chapter II of Title I of Book VI of the Monetary and Financial Code, give rise to police measures or sanctions by the Autorité de Contrôle ;
2. The reserve for the guarantee fund provided for in article R. 423-16, up to the amount of the contribution paid by the company and not used by the fund;
3. The reserves constituted pursuant to Articles L. 111-6 and L. 431-1 of the Mutual Code, including the portion of the contribution paid by the mutual insurer or association and not used by the federal guarantee system or the guarantee fund mentioned in Article L. 431-1 of the Mutual Code.
III -At the request and justification of the undertaking and with the agreement of the Autorité de contrôle, the solvency margin may also be constituted by:
1. Half of the unpaid portion of the capital or of the outstanding portion of the loan for the formation fund, as soon as the paid-up portion reaches 25% of this capital or fund, up to a maximum, for insurance undertakings governed by this code, of 50% of the solvency margin or the required solvency margin, whichever is lower and, for mutual insurers and unions governed by Book II of the Mutual Code and provident institutions and unions governed by Title 3 of Book 9 of the Social Security Code, half of the outstanding portion of the loan for the establishment fund;
2. Capital gains arising from the under-estimation of assets and the over-estimation of liabilities, insofar as such capital gains are not exceptional in nature;
3. Unrealised capital gains on the forward financial instruments referred to in articles R. 332-45 and R. 332-46, provided that the corresponding transactions are traded on a recognised market within the meaning of the last paragraph of A of article R. 332-2 or are carried out over-the-counter provided that they are guaranteed under the conditions set out in article R. 332-56 ;
Unrealised losses on forward financial instruments for which no provision has been made are deducted from the items listed in 2 and 3.
IV-The available solvency margin is reduced by the following items :
a) Own shares held directly by the insurance undertaking ;
b) Participations which the insurance undertaking holds in a credit institution, finance company, investment firm, portfolio management company or financial institution;
c) Subordinated claims which the insurance undertaking holds in respect of the undertakings referred to in b) above in which it has a holding;
d) Mutual or joint certificates issued and held directly by the insurance undertaking.
However, the items mentioned in b and c may not be deducted when the holdings mentioned in these paragraphs are held temporarily with a view to providing financial support to these undertakings.
V.-Where it considers that the assessment of the profit, surplus or loss carried forward referred to in paragraph 3 of I is likely to be distorted by the existence of a limited financial reinsurance contract taken out by the undertaking, the Autorité de contrôle may limit the recognition of this carry forward, with a view to including the future expenses expected under this contract. Where appropriate, the amount of the solvency margin is adjusted at the end of the limited financial reinsurance contract, on the basis of the cumulative deferral actually recorded.