Admissibility of additional premiums for financing the OPA minimum interest rate guarantee and the OPA conversion rate guarantee

Facts

The Swiss Life insurance and pension institution (now: Swiss Life) offers collective insurance contracts within the framework of occupational pension provision. On 31 May 2002, it applied to the Federal Office of Private Insurance for approval to introduce a risk premium for the OPA minimum interest rate guarantee and the OPA conversion rate guarantee. The Federal Office of Private Insurance refused to approve the additional premiums in the mandatory area, but allowed them for the super-mandatory area. The Federal Commission of Appeal for the Supervision of Private Insurance confirmed this decision on appeal.

The pension institution has lodged an administrative appeal against this and requests that the decision of the Commission of Appeal be set aside and that the Federal Office of Private Insurance be instructed to approve the collection of additional premiums for the adequate financing of the costs associated with the minimum interest rate guarantee and the guarantee of the minimum conversion rate in the mandatory area of occupational pension provision in accordance with OPA, based on its tariff submission of 31 May 2002.

Considerations

The Federal Court has considered that the appellant claims not to be subject to the Federal Act on Occupational Old-Age, Survivors' and Disability Pension Provision. The lower instances had wrongly applied its provisions to it. However, the Federal Court is of the opinion that the appellant is indeed subject to OPA, as it is active as a collective insurer in the OPA area and has to include tariffs in its offers that only cover the legally prescribed risks of death and disability.

The Federal Court has further established that OPA represents a system of statutory minimum performance requirements, in which the minimum performances are defined by the three factors of old-age credits, minimum interest rate and minimum conversion rate. The financing of the legally owed benefits is carried out through contributions from employers and employees as well as through capital yields. The law aims to prevent pension institutions from being obliged to provide benefits that cannot be covered by the calculated income.

The Federal Court has also established that the collection of additional premiums to…