Change Of The Stock Exchange Act 1989, The Accounting Control Law, The Alternative Investment Funds Manager Law And Capital Market Law

Original Language Title: Änderung des Börsegesetzes 1989, des Rechnungslegungs-Kontrollgesetzes, des Alternativen Investmentfonds Manager-Gesetzes und des Kapitalmarktgesetzes

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150. Federal Law, which changes the 1989 Stock Exchange Act, the Accounting Control Act, the Alternative Investment Fund Manager Act and the Capital Market Act

The National Council has decided:

Article 1

Amendment of the 1989 Stock Exchange Act

The Stock Exchange Act 1989-BörseG, BGBl. N ° 555/1989, as last amended by the Federal Law BGBl. I n ° 98/2015, shall be amended as follows:

1. § 48 (1) Z 6 reads:

" 6.

as issuer

a)

its obligation to publish, transmit or communicate

aa)

pursuant to § 82 (1), (7) to (9) or (11), § 83 (4), § 84 (5), (85), § 86 (1) or (3), § 87 (6) or (§ 88) or

bb)

in accordance with a Regulation of the FMA adopted pursuant to Section 82 (2) or (7) to (9) or section 86 (2) or (5)

not or not in good time, or

b)

its obligations to publish, transmit or communicate in accordance with Section 82 (5) or in accordance with a Regulation of the FMA adopted pursuant to Section 82 (6) of the Second and Third Sentences, "

2. § 48 (1) (9) and (10) are:

" 9.

does not comply with the obligation to provide information pursuant to § 91 (4) to (6) or does not comply in due time or does not fulfil its obligation to publish it in due time pursuant to § 93 (1)

10.

the obligation to provide notification to the FMA and the stock exchange company in accordance with § 91 (1) to (3), § 91a, § 91b, § 92, § 92a or § 93 (2) to (5) or pursuant to a regulation of the FMA issued pursuant to Section 94 does not, or is not fulfilled in good time, "

3. The final part of Section 48 (1) reads as follows:

"The administrative surrender shall be punishable by a fine of up to EUR 100 000 with regard to Z 1, with a fine of up to EUR 60 000 with regard to Z 2 to 8 and up to EUR 150 000 with regard to Z 9 and 10."

4. The final part of Section 48 (2) reads as follows:

"commit an administrative surrender and is punishable by a fine of up to 20 000 euros."

5. In § 48 (4) the sentence is deleted "The VStG is to be applied."

6. § 48 (6) reads:

" (6) Anyone who, as the person responsible (§ 9 VStG) of a stock exchange company, violates the obligations of section 25 (5) to (8), is subject to an administrative surrender and is to be sentenced by the FMA with imprisonment of up to six weeks or with a fine of up to € 150 000. punish. "

7. § 48c reads:

" § 48c. Anyone who operates market manipulation is subject to an administrative surrender and is punished by the FMA with a fine of up to EUR 150 000. The trial is punishable. An asset benefit is to be declared forfeited by the FMA. "

8. § 48 u para. 3 reads:

" (3) Anyone who violates the provisions of Regulation (EU) No 236/2012 or FMA measures pursuant to Art. 18 (1), Art. 19 (2), Art. 20 (2), Art. 21 (1) or Article 23 (1) of Regulation (EU) No 236/2012, is subject to an administrative surrender and is punished by the FMA with a fine of up to 150 000 euros. The trial is punishable. An asset advantage that is achieved is to be declared forfeit by the FMA. Section 48q (4) and (4a) shall apply in accordance with the provisions of this paragraph in respect of an official act or a sanction. "

9. § 67 (5) reads:

"(5) The Federal Administrative Court shall be responsible for the appeal against the failure to grant admission to regulated free circulation or the revocation of the authorisation."

10. The title before § 70 is deleted and § 70 reads:

" § 70. Admission to official trading and the regulated free circulation of securities which are not securitised in the form of a collection certificate deposited with a central securities deeds or which are not registered with a central securities deer shall be prohibited. "

11. § 72 (3) Z 6 lit. a and b are:

" (a)

in the case of first-time admission of shares to official trading, the annual accounts shall be endorsed by the auditors and the annual reports for the last three full financial years; if the issuer does not have a full three years in that legal form , the evidence of the succession and continuity of the balance sheet, in particular on presentation of the relevant conversion reports and audits;

b)

in all other cases, the annual financial statements with the confirmation of the auditor and the management report for the last full financial year; "

12. § 74 reads:

" § 74. The prospectus is to be drawn up in accordance with § § 2 ff KMG, without prejudice to § 8b KMG and to be approved by the FMA according to § 8a KMG. A prospectus created pursuant to section 7 (8a) of the first sentence of the KMG and approved by the FMA shall not be entitled to enter into the stock exchange. "

Section 87 (6) reads as follows:

" (6) If the trading conditions of the stock exchange company which operates a regulated market provide that this regulated market is broken down into more than one market segment, the provisions of paragraphs 1 to 5 shall not preclude a requirement by means of which the market share of the market segment is not subject to the conditions of the market. Stock exchange companies require the issuers of the market segment with the highest requirements to publish quarterly reports. The issuer must comply with such an obligation. The contents, time limits and other publication requirements shall be stated in the General Terms and Conditions of the Exchange Company. However, they may not be more stringent than those according to International Accounting Standard 34 (IAS 34). "

14. The subdivision of the last sentence of § 91 (1) reads:

"The period of two trading days shall be calculated from the day following the day on which the person"

15. § 95a reads:

" Section 95a. (1) Who

1.

as issuer, a publication obligation pursuant to § 82 (4), § 87 (1) to (4) or § 89 or pursuant to a regulation of the FMA issued pursuant to § 82 (6), first sentence or § 87 (5), is not or not fulfilled in good time, or

2.

no obligation to inform the issuer or the publication obligation in accordance with § 91 (1) to (3), § 91a, § 91b, § 92, § 92a or § 93 (2) to (5) or pursuant to a regulation of the FMA issued pursuant to Section 94 does not, or is not fulfilled in due time,

shall be subject to an administrative surrender and shall be subject to a fine of up to EUR 2 million by the FMA or up to two times the benefit drawn from the infringement, whichever is higher and where the amount is to be quantified, to punish. "

16. § 95b (1) and (2) are:

" (1) The FMA may impose financial penalties on legal persons if persons who have acted either alone or as part of an organ of the legal person and have a leading position within the legal person on the basis of

1.

the power to represent the legal person,

2.

the power to take decisions on behalf of the legal person, or

3.

an authority of control within the legal person

, in breach of the obligations set out in Section 95a.

(2) Legal persons may also be held liable for breaches of the obligations referred to in § 95a if lack of supervision or control by a person referred to in paragraph 1 is committed to the commission of such violations by one for the to the legal person. '

17. The final part of § 95c reads:

" The provisions of the VStG shall remain unaffected by these figures. The fines imposed by the FMA pursuant to § 95a and § 95b shall be paid to the Federal Government. "

18. § 95d reads:

" § 95d. In exercising its sanctioning powers pursuant to Section 48 (1) Z 6 and 9, § 95a and § 95b, the FMA shall cooperate closely with the competent authorities in other Member States in order to ensure that the supervisory and investigative powers, and the administrative penalties can be effectively ordered or imposed. The FMA has to coordinate its actions with the competent authorities of the other Member States in order to avoid duplication and overlap in cases where the FMA exercises its supervisory and investigative powers across borders and in this framework, administrative sanctions and measures are imposed. "

§ 95e para. 1 reads as follows:

" § 95e. (1) fines imposed on natural and legal persons for violations of the obligations referred to in § 95a or for infringement of § 82 (8), § 85, § 86 (1) or (3) or 93 (1) or in accordance with § 82 (8) or § 86 (1). 2 or 5 of the FMA Regulation shall be immediately followed up by the FMA, including the identity of the persons concerned and the information on the nature and nature of the underlying infringement and, where appropriate, the appeal. to make the internet known. If an appeal is filed after the contract notice, the FMA shall amend the notice accordingly. "

20. § 95e (4) reads:

" (4) If a publication in accordance with paragraph 1 or 2 is not to be revoked on the basis of a decision pursuant to paragraph 3 or to be removed from the internet presence, it shall be maintained for at least five years. However, the publication of personal data shall only be maintained for as long as it would not be one of the criteria laid down in paragraph 2 (2) (1) to (4). "

21. § 101f receives the sales designation "(1)" and the following paragraph 2 is added:

" (2) § 70 shall not apply to securities issued at the time of the entry into force of this Federal Law in the version of the BGBl. I n ° 150/2015 have already been admitted to official trade or regulated free circulation. "

Article 2

Amendment of the Accounting Control Act

The Accounting Control Act-RL-KG, BGBl. I No 21/2013, as last amended by the Federal Law BGBl. I n ° 98/2015, shall be amended as follows:

1. In Section 2 (2), the word order shall be " Procedure according to § 201 or § 255 Stock Corporation Act-AktG, BGBl. No. 98/1965 " through the phrase " Procedure according to § 201 of the Stock Corporation Act-AktG, BGBl. No. 98/1965, or in accordance with § 163a of the Criminal Code-StGB, BGBl. No 60/1974 " replaced.

2. § 8 (1) reads:

" (1) The Federal Minister of Finance, after hearing the Federal Minister of Justice, may, by means of a communication, inform an independent non-profit-making association on its application as an audit body for compliance with accounting rules by Companies whose country of origin is in accordance with Section 81a (1) of the Austrian Stock Exchange Act (BörseG Austria). Such an association shall have the name "Österreichische Prüfstelle für invoicing" and may not be bound by any instructions in the performance of its activities. "

Article 3

Change of Alternative Investment Fund Manager Act

The Alternative Investment Fund Manager Law-AIFMG, BGBl. I No 135/2013, as last amended by the Federal Law BGBl. I No 117/2015, shall be amended as follows:

1. In § 4 (6) last sentence, the reference "§ 44 (1)" by reference "§ 45 (1)" replaced.

2. In § 49 (2), the reference "§ § 21, 38 or 47" by reference "§ § 31, 38 or 47" replaced.

Section 54 (2) reads as follows:

" (2) The FMA shall be the competent authority of Austria in accordance with

1.

Art. 3 lit. m of Regulation (EU) No 345/2013 on European Venture Capital Funds and

2.

Art. 3 lit. Regulation (EU) No 346/2013 on the European Fund for Social Entrepreneurship and

3.

Art. 2 Z 10 of Regulation (EU) 2015/760 on European long-term investment funds and

Without prejudice to the tasks assigned to it in other federal laws, it shall entrust the registration of undertakings for collective investment undertakings in accordance with these Regulations. FMA has to comply with the provisions of these Regulations by managers of a qualified venture capital fund, managed by a qualified fund for social entrepreneurship and managed by a European long-term investment fund monitor. To this end, the FMA shall be entitled, without prejudice to the powers conferred on it by these Regulations, in particular the powers referred to in Article 56 (2) (1), (2), (3), (5), (8), (9) and (11).

4. § 56 para. 2 Z 2 reads:

" 2.

by each of the activities of the AIFM, the liquidator of a qualifying venture capital fund, the manager of a qualified social entrepreneurship fund, the manager of a European long-term investment fund or the AIF in to request information and, where appropriate, to preload and hear a person for the purpose of obtaining information, "

5. § 56 (2) Z 5 reads:

" 5.

to prescribe that practices contrary to this federal law, Directive 2011 /61/EU, delegated acts adopted on the basis of this Directive, Regulation (EU) No 345/2013, Regulation (EU) No 346/2013 or Regulation (EU) 2015/760 , are not, "

6. § 56 (2) (8) and (9) are:

" 8.

to request information from AIFM, depositaries, auditors, managers of a qualified venture capital fund, managers of a qualified fund for social entrepreneurship or managers of a European long-term investment fund,

9.

take any form of action to ensure that AIFM, depositaries, managers of a qualified venture capital fund, custodian of a qualified fund for social entrepreneurship or custodian of a European long-term Investment funds continue to comply with the requirements of this Federal Law applicable to them, the delegated acts adopted pursuant to Directive 2011 /61/EU, Regulation (EU) No 345/2013, Regulation (EU) No 346/2013 and the Regulation (EU) 2015/760, "

7. § 56 (2) Z 11 reads:

" 11.

the further activities of an AIFM, a manager of a qualified venture capital fund, a manager of a qualified social entrepreneurship fund, a custodian of a European long-term investment fund or a depositary to prohibit domestiy, "

8. § 56 (5) reads:

" (5) The costs of the FMA from the Accounting Supervisory Board (Section 19 (1) (3) and (4) FMABG) are AIFM registered pursuant to § 4 (1) of the AIFM or AIFM registered in accordance with Article 1 (5) (1) (1), of non-EU AIFM, of branch offices established pursuant to section 32 (3) Pursuant to Article 39 (3) of Regulation (EU) No 345/2013 of Article 14 of Regulation (EU) No 345/2013, managers of a qualified social fund registered under Article 15 of Regulation (EU) No 346/2013 of a qualified fund for social affairs Entrepreneurship as well as managers of an approved pursuant to Article 5 of Regulation (EU) 2015/760 European long-term investment funds. To this end, the FMA has an additional common sub-accounting system for AIFM, liquidator of a qualified venture capital fund, administrator of a qualified social entrepreneurship fund, custodian of a European long-term Investment funds, management companies (InvFG 2011), capital investment companies for real estate (ImmoInvFG) and BV-Kassen (BMSVG) to form. "

9. In § 58, the reference "§ 1 (5) Z 4" by reference "§ 1 (5) Z 4 and 5" replaced.

10. § 60 (1) to (6) are:

" § 60. (1) Who

1.

is contrary to the requirement of a concession pursuant to § 4 (1) or the requirement of registration pursuant to Article 1 (5) (1) (1);

2.

despite the submission of the distribution by the FMA in accordance with § 29 para. 5, § 30 para. 6, § 31 para. 2, § 32 para. 6, § 35 para. 6, § 36 para. 7, § 38 para. 6, § 40 para. 8 and 9, § 41 para. 4, § 42 para. 9 and 10, § 43 para. 4, § 44 para. 5, § 47 para. 6 and 7, § 49 para. 9, § 50 or § 56 para. 2 Z 5, 10 and 11 as well as para. 4 shares in AIF or

3.

Contrary to the order of the FMA pursuant to Section 56 (4), to cease the management of AIF, to continue managing AIF,

Is an administrative transgressing and is to be punished by the FMA with a fine of up to 100 000 euros.

(2) Who

1.

it does not allow the FMA to be informed in accordance with Section 1 (5) Z 4;

2.

is in breach of the provisions of Section 1 (5) Z 5;

3.

contrary to § 3, an AIF is administered in addition to another AIFM;

4.

carry out other activities contrary to Article 4 (2) or (3);

5.

the FMA does not immediately indicate the names of the successors of the persons who actually conduct the operations of the AIFM pursuant to Section 6 (1) Z 3;

6.

is in breach of the provisions of Section 7 (5);

7.

the FMA does not indicate, contrary to § 8 (1), all the essential changes to the conditions for the concession prior to its application;

8.

is in breach of the provisions of Section 10 (2) and § § 11 to 17;

9.

the FMA does not immediately notify the transfer of tasks to third parties pursuant to § 18 (1) Z 1;

10.

the obligations under § 19 are infringed;

11.

is in breach of the provisions of Sections 21 to 23;

12.

is in breach of the information requirements of § 25;

13.

is in breach of the disclosure requirement of § 26;

14.

is in breach of the provisions of § 27 and § 28 (1);

15.

contrary to Section 29 (5), § 30 (6), § 32 (6), § 35 (6), § 36 (7), § 38 (6), § 40 (9), § 42 (10), § 44 (5), § 47 (7) or § 49 (9) of the FMA, the essential changes to the data are not communicated in due time;

16.

Continue to distribute shares in accordance with § 51 (3), despite the fact that the sales have been underserved

17.

is in breach of the provisions of § § 52 or 53;

18.

Contrary to Section 57 (1), the information of the FMA is not allowed;

19.

Contrary to Section 57 (2), it does not return the order for the management of the affected AIF or further distributes an AIF;

20.

in breach of a provision of the delegated acts adopted on the basis of Directive 2011 /61/EU; or

21.

is in breach of a decree issued by the FMA under this Federal Act,

Is an administrative transgressing and is to be punished by the FMA with a fine of up to 60 000 euros.

(3) Anyone who, as the person responsible (§ 9 VStG) of an AIFM in accordance with § 10 paragraph 3, is in breach of the obligations pursuant to § 40, § 40a, § 40b, § 41 (1) to (4) of the Federal Elections Act (BWG), is subject to an administrative surrender and is punishable by the FMA with a fine of up to EUR 150 000.

(4) Anyone who does not comply with an AIFM as a trustee pursuant to § 10 (3) of its disclosure obligation pursuant to Section 40 (2) of the Federal Elections Act (BWG) is subject to an administrative surrender and is subject to a custodial sentence of up to six weeks by the FMA or with a to punish fines of up to € 60 000.

(5) Provided that the act does not constitute the existence of an administrative surrender referred to in paragraph 1, an administrative surrender shall be committed and shall be punished by the FMA with a fine of up to EUR 60 000 for who is against the provisions of the Regulation (EU) No 345/2013, Regulation (EU) No 346/2013 or Regulation (EU) 2015/760 is in breach of Regulation (EU) No 346/2013.

(6) The FMA as the competent authority may take any action or sanction that may result in a breach of the provisions adopted pursuant to this Federal Act or of Directive 2011 /61/EU or against Regulation (EU) No 345/2013, Regulation (EU) No 2010/2011. 346/2013 or Regulation (EU) 2015/760, if such disclosure does not seriously jeopardise the stability of the financial markets, does not adversely affect the interests of investors or does not adversely affect the parties ' interests disproportionately high damage. "

11. In § 71 (2) (21), the point at the end shall be replaced by a stroke, and the following Z 22 shall be added:

" 22.

Regulation (EU) 2015/760 on European long-term investment funds, OJ L 203, 3.8.2010, p. No. OJ L 123 of 19.05.2015, p. 98.

Article 4

Amendment of the Capital Market Act

The Capital Market Act-KMG, BGBl. N ° 625/1991, as last amended by the Federal Law BGBl. I No 114/2015, shall be amended as follows:

§ 16 reads:

" § 16. Anyone in connection with a public offer of securities or investments which is subject to a prospectus pursuant to this Federal Act or in connection with admission to the regulated market (§ 74 BörseG),

1.

offers securities or investments or mediates on a commercial basis, if the prospectus or the information or its publication in accordance with § 6 or its publication contradicts the provisions of this Federal Law or as an issuer Report of the Federal Republic of Germany (Bundesgesetz) contradicting or published;

2.

as a prospectus control or as an issuer in a prospectus or in a claim supplementary or changing in accordance with § 6, or as an issuer or as a statutory auditor in a report on an accounting report, or as an auditor in accordance with § 8 (2) or (5) or § 14 (2), a prospectus without having to take out the insurance required in each case;

3.

, contrary to the provisions of § 4;

4.

as a provider of debt securities for which a credit rating is to be published in accordance with § 9, no rating is published or it is not transmitted in due time to the reporting body;

5.

as a provider, not according to § 12 or as a reporting obligation according to § 13, even if there is no public offer or otherwise, without the obligation to provide the prospectus, the reporting body shall be informed;

6.

as a provider, do not send in time the prospectus or the information provided pursuant to § 6 or supplementary information in accordance with this Federal Act to the Reporting Office;

7.

offers debt securities without a permit issued by the Federal Minister of Finance in accordance with Section 9 (1) Z 1;

8.

a prospectus or an indication as amended in accordance with § 6 as a prospectus control gate (except in the case of simultaneous underproduction by an uncaught control gate), or an indication of a prospectus or a supplementary claim in accordance with § 6, or a prospectus Auditor's report shall be considered as a statutory auditor, or such an audit or control shall be carried out by an auditor or a supervisory authority in respect of which there is a reason for exclusion, or which offers securities or investments, without the reporting body being responsible for the the corresponding insurance or the premium payment in time has been announced;

9.

Orders of the FMA according to § 8a (2) (2) (4) to (8) or § 8a (8) (8) (1) to (3) are contrary or are not immediately transferred to the Reporting Office pursuant to § 6 (4) of the Prospectus Inspection Authority or the notice to the FMA pursuant to § 10 (3) Shall refrain from publishing the notification pursuant to Article 10 (4) or advertise or publish in accordance with Chapter V of Regulation (EC) No 809/2004, or

10.

in the case of section 3 (3), securities shall be offered without the required consent of the issuer or the person responsible for the preparation of the prospectus being available,

shall be subject to an administrative surrender and shall be punished by the FMA with a fine of up to EUR 100 000. "

Fischer

Faymann