Owner Control Regulation 2016 - Ekv 2016

Original Language Title: Eigentümerkontrollverordnung 2016 – EKV 2016

Read the untranslated law here: http://www.ris.bka.gv.at/Dokumente/BgblAuth/BGBLA_2015_II_425/BGBLA_2015_II_425.html

425 regulation of the financial market authority (FMA) on the information to submit to the FMA has a notifiable, who is considering a purchase, a boost, a task, or a reduction of a qualifying holding in a credit institution, insurance or reinsurance undertakings, at an investment firm, in an investment service providers, a payment institution or an electronic money institution (ownership regulation 2016 - EKV 2016)

On the basis of § 20B par. 3 of the Banking Act - Austrian Banking Act, Federal Law Gazette No. 532/1993, as last amended by Federal Law Gazette I no. 117/2015, § 26 ABS. 3 of the insurance supervision law 2016 - VAG 2016, Federal Law Gazette I. No. 34/2015, last amended by Federal Law Gazette I no. 112/2015 and § 11b paragraph 3 of the securities supervision Act 2007 - WAG 2007, Federal Law Gazette I no 60/2007 , last amended by Federal Law Gazette I no. 117/2015, is prescribed:

1 section

General regulations

Scope of application

§ 1. This regulation is on according to § 20 para 1 and 2 Banking Act, § 24 para 1 and 2 VAG 2016, § 11 par. 2 and 3 WAG 2007, § 11 ABS. 2 ZaDiG in conjunction with § 20 para 1 and 2 BWG and section 8 para 1 Bspg 2010 in conjunction with § 20 para 1 and 2 BWG are applicable.

Definitions

§ 2. Following definitions shall apply to this Regulation: 1. "display": intention display in accordance with § 20 para 1 and 2 Banking Act, § 24 para 1 and 2 VAG 2016, § 11 par. 2 and 3 WAG 2007, § 11 ABS. 2 ZaDiG in conjunction with § 20 para 1 and 2 BWG and section 8 para 1 Bspg 2010 in conjunction with § 20 para 1 and 2 BWG.

2. "Notifiable": who in accordance with article 20, paragraph 1 or 2 BWG, § 24 para 1 and 2 VAG 2016, § 11 para. 2 or 3 WAG 2007, § 11 para. 2 ZaDiG in conjunction with § 20 para 1 or 2 BWG or § 8 ABS. 1 E-money law 2010 in conjunction with § 20 para 1 or 2 BWG to display on the financial market authority (FMA) is required.

3. "Target company": a credit institution in accordance with article 1 para. 1 BWG, a insurance companies in accordance with § 5 No. 1 or reinsurance undertakings in accordance with § 5 No. 2 VAG 2016, an investment firm pursuant to § 3 para 1 WAG 2007, an investment service providers pursuant to section 4 WAG 2007, a payment institution pursuant to § 3 No. 4 lit. a ZaDiG or an electronic money institution pursuant to section 3 para 2 E-money law 2010, where a qualifying holding acquired, changed an existing qualifying holding or will give up a qualifying holding will.

4. "Information": all information, documents and declarations that are to be submitted under this regulation by the notifiable.

5. "qualified investment": direct or indirect holding of at least 10 vH of the capital or of the voting rights of a company or some other means of perception of a significant influence over the management of this company.

Completeness, correctness and topicality of the display

§ 3. The notifiable is responsible for the completeness, correctness and timeliness of the information presented in the display or at the request of the FMA.

Submission

§ 4 (1) viewing on the acquisition or increase a qualifying holding pursuant to § 20 para 1 Banking Act, section 24 para 1 VAG 2016, § 11 para 2 WAG 2007, § 11 ABS. 2 ZaDiG in conjunction with § 20 para 1 Banking Act or section 8, paragraph 1 Bspg 2010 in conjunction with article 20, paragraph 1 are BWG to submit with the form set out in Schedule 1, including the information to be submitted in accordance with section 2 of this regulation with the FMA.

(2) see about the task of a qualifying holding or the falling below of the legal limits in accordance with § 20 para 2 BWG, article 24 para 2 VAG 2016, § 11 ABS. 3 WAG 2007, § 11 ABS. 2 ZaDiG in conjunction with § 20 para 2 BWG or article 8, paragraph 1 E-money Act 2010 in conjunction with § 20 para 2 are BWG to submit with the form in annex 2 including the information to be submitted in accordance with section 2 of this regulation with the FMA.

(3) the notifiable has to be submitted under this regulation information, which are not written in the German language, to submit certified translations. The FMA may waive certified translations in certain cases when such are not necessary or can be for the prudential assessment.

Personal data: individuals

§ 5. The natural people payable under this regulation by the notifiable are with 1 full name, 2. date of birth, 3. place of birth, country of birth, to indicate nationality and 4 address of principal residence.

Personal data: not natural persons and person associations

§ 6. The non-natural persons payable under this regulation by the notifiable, person associations and purpose assets are seat and seat land, 4 seat and 5 the number of or the order features of a similar registry entry with 1 company or label, 2. legal form, 3., provided that such registration is to specify.

2. section

Information referring to

General information

§ 7 (1) a display about the acquisition or increase of a qualifying holding pursuant to § 20 para 1 Banking Act, § 24 para. 1 VAG 2016, § 11 para 2 WAG 2007, § 11 ABS. 2 ZaDiG in conjunction with § 20 para 1 Banking Act or section 8, paragraph 1 Bspg 2010 are BWG in connection with article 20, paragraph 1 to enclose that information under indication of the extent of the planned participation in sections 8 to 14.

(2) if it when the target company for a display according to para 1 to an investment service providers pursuant to section 4 WAG 2007 are and are not an indication of a notifiable pursuant to par. 3, the display indicating the scope of the planned participation the information of 1 in accordance with article 8, 2. § 9, 3. § 11, 4. Article 12, paragraph 2 and paragraph 3 Nos. 1 and 2 , 5. § 13 and 6 § 14 para 5, regardless of the amount of the intended acquisition of participation, to enclose.

(3) the notifiable in relation to an advertisement referred to in paragraph 1 is 1 a credit institution, a pension fund, an insurance or reinsurance undertaking, an investment firm, an investment service providers, a payment institution or an electronic money institution headquartered in Germany, are the information according to the display, indicating the scope of the planned participation) article 8, paragraph 1 Nos. 6 and 7, b) § 8 par. 2, c) article 9, paragraph 1 Z 1 and § 9 para 1 No. 1 in conjunction with § 9 para 4 , d) § 9 para 3, with the exception of the audits carried out by the FMA, e) section 11 para 1 and 2, f) § 13 and g) to add section 14. A credit institution, which is affiliated to a central institution and which displays a participation in this Central Institute, must specify only the scope of the planned participation;

2. a credit institution registered in a State of the European economic area in accordance with article 4 para 1 No. 1 of the Regulation (EU) No. 575/2013, an investment firm in accordance with article 4 para 1 subpara 1 of Directive 2004/39/EC on markets in financial instruments, amending Directives 85/611/EEC and 93/6/EEC of the Council and Directive 2000/12/EC of the European Parliament and of the Council and repealing Directive 93/22/EEC of the Council , OJ No. L 145 of 30.04.2004 p. 1, last amended by OJ P. 23 or an insurance or reinsurance company headquartered in one State of the European economic area, are no. L 54 of the 22.02.2014 the display, indicating the scope of the planned participation the information referred to in subpara 1, § 8 para 1 Nos. 1 and 2, § 9 para to add 1 Z 4 and § 10 Nos. 1 and 3;

3. Group companies of a group several notifiable belong must in terms of the same acquisition process only that information be submitted, presented the notifiable not already by others. Notifiable by this relief, which makes use, he must be attributable to the information submitted by the other notifiable according to § 3;

4. an is solidarity institution or a central institution in the context of a decentralised sector group, in the display, if the participation for purposes of ensuring compliance with the minimum capital requirement in accordance with part 3 title 1 Chapter 1 of the Regulation (EU) No. 575/2013 is to specify only the scope of the planned participation.

(4) an indication of the task of a qualifying holding or falling below the legal limits on shareholdings pursuant to § 20 para 2 BWG, article 24 para 2 VAG 2016, § 11 para 3 WAG 2007, § 11 ABS. 2 ZaDiG in conjunction with § 20 para 2 BWG or § 8 ABS. 1 E-money law 2010 in conjunction with § 20 para 2 are BWG § 8 paragraph 1 Z attach 1 information referred to and there are in the scope of the planned participation work, as well as the planned buyer of this participation , if they are known to provide. The falling below the legal limits on shareholdings pursuant to § 20 para 2 BWG, article 24 para 2 VAG 2016, § 11 ABS. 3 WAG 2007, § 11 para 2 ZaDiG in conjunction with § 20 para 2 BWG or § 8 ABS. 1 E-money law 2010 are BWG in conjunction with § 20 para 2 also in section 8, paragraph 1 Z 2 information to submit. In paragraph 3 Nos. 1 and 4 which have companies mentioned in article 8, paragraph 1 not to provide Z 1 and 2 information referred to.


(5) the FMA can at any time request the submission of further information mentioned in this regulation, which are necessary for the prudential assessment in the cases of paragraph 2 to 4 in individual cases.

General information

Following general documents and statements to be attached are section 8 (1) a display: 1. proof of the identity or the legal existence of the notifiable. In particular copies of official photo ID and current legal persons extracts from the commercial register or a comparable register; apply as such to natural persons

2. copy of the current statute, the current partnership agreement or an equivalent agreement unless the notifiable is not a natural person;

3. unless the notifiable is not a natural person, a list of pipe organs and general partner in setting out the nature and the scope of their powers and the allocation of business. If the notifiable is a fortune of purpose of, is a representation to add from the resulting, whether and in what percentage amount these people participating in the distribution of its profits;

4. a current, meaningful representation of the business activities of the notifiable;

5. unless the notifiable is not a natural person, a list with the economic beneficiaries of the notifiable, stating the reasons for the economic benefit, as well as their extent;

6. a statement, moreover, whether in connection with the proposed acquisition an other authority or court is conducting an investigation or has carried out. This representation has to include in particular also the address and label any such authority or a Court of such a representation of the respective procedure stands or the result of such procedures. This is as far as possible through official documents to prove;

7 a statement that is intended to replace the directors of the target company and they should be replaced by which persons.

(2) a curriculum vitae of the notifiable, provided that it is a natural person, and curriculum vitae of each natural person referred to in paragraph 1 the display shall be annexed Nos. 3 and 7. CVS have to contain the relevant training and experience, as well as the current activities and additional functions of the respective person.

Information about the reliability

§ 9 (1) of the notifiable has displayed to indicate: 1 against him a) runs a judicial criminal proceedings or b) a criminal proceedings for a crime or offence; been performed earlier This is to prove by appropriate evidence;

2. whether against him in connection with a business or other professional activities of another legal system runs an administrative penal proceedings or comparable proceedings or a sentence or a reminder in the last five years legally completed with been;

3. as debtor in insolvency proceedings, composition proceedings or comparable proceedings is involved or was, as long as the period of granting access in the bankruptcy file, has not yet expired. The same applies if carried out a similar offence abroad;

4. whether a supervisory authority, whose rules it is subject or subordinate, has launched an investigation against him in the last ten years or an action taken, and whether and how such a procedure has been completed

5. whether it registration, approval, authorization, membership or permission to engage in a trade or other professional activities has been granted, withdrawn, prohibited in the last ten years by an authority or a court or repealed or an appropriate procedure is run.

(2) do not specify Z 1 in accordance with paragraph 1 are criminal proceedings, which have been discontinued or ended with an acquittal for legal reasons or due to lack of sufficient suspicion of crime. Do not specify criminal proceedings, which were terminated by resignation of the persecution if five years have passed after the resignation of the persecution, and convictions, which were repaid are also.

(3) the notifiable has also to explain whether its reliability or the reliability of a person in accordance with article 8, paragraph 1 has been tested Z 3 or 7 as a purchaser of a qualifying holding in a credit institution, insurance or reinsurance undertakings, at an investment firm, in an investment service providers, a payment institution or an electronic money institution by a supervisory authority responsible for the supervision. He has still to declare whether a comparable control is carried out by another authority. Official documents shall be accompanied by the display. Such documents do not exist the notifiable, he has to justify this.

(4) the particulars referred to in paragraph 1 are from the notifiable also derived from him or controlled companies and any person referred to in article 8, paragraph 1 Nos. 3 and 7.

Ownership and group affiliation, as well as other opportunities to exert influence

§ 10. A display the following information on direct and indirect ownership, to add to the group membership and other influence of the notifiable are: 1 if the notifiable belongs to a group, a) a meaningful representation of the group structure, with an organization chart indicating each group company, and each held capital shares and voting percentage, b) a meaningful representation of the business activities of the Group and c) a list of the Group companies , which are supervised by authorities in Member States or third countries that other financial institutions, or the financial markets are responsible for the supervision of credit institutions, insurance or reinsurance undertakings, payment institutions, electronic money institutions, as well as the name and address of the competent supervisory authorities;

2. If the notifiable is a natural person, a list of companies whose business he leads or over which he has control. It is also to specify whether the notifiable conducts the business of the specified company or has control over this;

3. unless the notifiable no natural person is a list of non-affiliated individuals and legal entities, trading company and companies of other forms of social organisation and purpose assets, which hold notifiable at least 10 vH of the capital or voting rights shares where or who exert a significant influence on the notifiable regardless of whether capital or voting rights are kept, or, if the notifiable is a purpose assets , participate in the distribution of profit in the amount of at least 10%. Existing voting rights agreements are to explain.

Relevant business relationships, family ties and other relevant relationships and acquisition interests

§ 11 (1) of the display is to include a presentation of financial and other interests of the notifiable to the qualifying holding.

(2) the representation referred to in paragraph 1 must describe the business relationships that the notifiable or a derived from him or controlled companies to specify that each is to 1 the target company, 2nd of the target company company, 3. controlled the holders of capital shares in the target company, stating the amount of the capital shares, 4. the holders of voting rights in the target company, stating the amount of voting shares , 5. the managers of the target company and people who actually conduct the business of the target company and 6 maintains the members of the Supervisory Board of the target company.

(3) close links within the meaning of section 48a para 1 No. 9 lit. a to c BörseG by persons in accordance with article 8, paragraph 1 Z 3 to the Z 3 to 5 are persons appointed in the representation referred to in paragraph 1 in section 2.

(4) it shall be indicated in the representation referred to in paragraph 1: 1 those persons referred to in article 8, paragraph 1 Z 3, which are at the same time authorised on the basis of law, statutes, memorandum of association or an equivalent agreement to conduct the business of an owner pursuant to par. 2 Nos. 3 and 4, or of the target company or its shops actually lead.

2. those persons who are holders of capital or voting rights of the notifiable and owners of capital or voting rights in the target company at the same time, being the amount of capital or voting rights to specify.

(5) on the interests or activities of the notifiable, that might be contrary to interests of the target company at a sound and prudent management, is to deal with separately in the representation referred to in paragraph 1 and to explain how to prevent these interests having a negative impact on the target companies.

Financial condition and creditworthiness of the notifiable

Section 12 (1) which is notifiable to represent its economic conditions.

(2) in preparers notifiable the representation referred to in paragraph 1 must contain the following information on the notifiable: 1. annual financial statements and, if they are to set up or voluntarily established, management reports of the last three fiscal years.

2.

Reports on the audit of annual financial statements of the last three fiscal years, unless they were to check by an auditor due to legal regulations or were audited by an auditor.

A notifiable registrants in a corporation is involved, are the information referred to in Nos. 1 and 2 for the group level with the display to present.

(3) in not denominated notifiable, the representation referred to in paragraph 1 must contain the following information and documents: 1 a complete list and description of the sources of income, 2. a current statement of assets, stating all liabilities, and 3. If an obligation to submit of an income tax return or the notifiable it voluntarily abandoned the income tax returns and briefings of the last three calendar years. There are no them, documents with similar semantic content.

(4) was assessed the creditworthiness of the notifiable by one or more rating agencies, the notifiable has to indicate the most recent rating of each credit rating agency and to demonstrate through meaningful documents of the assessor rating agency. The same applies with regard to the creditworthiness of the group, which belongs to the notifiable as well as in relation to non-affiliated companies, over which the compulsorily notifiable, provided that it is a natural person, has control or whose businesses he runs. The documentation referred to in sentence does not exist 1 the notifiable, he has to justify this.

Financing of the acquisition, disclosure all agreements

§ 13. A meaningful representation and appropriate evidence of the existence and the economic origin of equity and borrowed funds to be used for the acquisition, as well as all in connection with the proposed acquisition of the display shall be accompanied by agreements and contracts.

Business plan presentation strategic goals and plans

Section 14 (1) if the notifiable by the proposed acquisition or the planned increase of the qualifying holding control over the target company is acquired, a business plan to be attached, you watched the qualifying holding in the target company with the acquisition or increase strategic objectives and plans of the notifiable describes the display. The business plan has particularly meaningful information on the planned strategic development (para. 2), to contain to the planned development of the assets, financial and earnings situation (para. 3), as well as to the impact on the corporate and organisational structure of the target company (para. 4).

(2) the details of the planned strategic development must contain general information on the key goals of the stake acquisition and the measures planned to achieve targets. These include, in particular: 1. the business strategic objectives and considerations for the acquisition.

2. the medium-term assets, financial and earnings targets.

3. the desired synergy effects in the target company;

4. the possible realignment of the business activities;

5. a planned change in the financial structure of the target company;

6. General specifications and requirements for the inclusion and integration of the target company in the Group and group structure of the acquirer. This must include a description of the main desired synergy effects with other companies of the Group and of the group as well as a description of the principles and procedures for the management and control of business relationships within the Group and the Group;

7 comments on the readiness and the economic ability, unless this is necessary to provide in the future another capital of the target company.

(3) the details of the planned development of the assets, financial and earnings situation include the plan balances, the profit forecasts and plan statements and the budgets for both the next three fiscal years after the acquisition or the planned increase of the qualifying holding for the target companies as well as for the group. They have in particular 1 the predicted capital ratios 2. to contain the information on the level of estimated risk positions and 3 views on planned intra-group transactions.

(4) the information on the impact on the corporate and organisational structure of the target company have to lead in particular and to describe: 1 the composition and responsibilities of the corporate bodies and the committees set up by them.

2. accounting policies and management, control and monitoring processes and changes these methods and procedures. These versions have to contain also information on significant changes in terms of the internal audit and compliance functions and the change in senior staff;

3. the IT systems, security, as well as significant changes in these systems;

4. the principles for the delegation and outsourcing of business activities and processes on other companies or persons.

(5) if through the proposed acquisition or the planned increase of the qualifying holding in the target company capital or voting rights shares by 20 per cent to 50 per cent of the notifiable are kept or of this on the target company a significant influence can be exercised and the notifiable to the proposed acquisition or the planned increase of the qualifying holding has no control over the target company , shall be attached to the display documents contain the following information: 1. meaningful information concerning the planned strategic development in accordance with paragraph 2 and 2. descriptive indications referred to in paragraph 4, whereby these need to include detailed statements about the nature of the intended future influence on the budget and the allocation of capital of the target company.

(6) if through the proposed acquisition or the planned increase of the qualifying holding in the target company capital or voting rights held vH below 20 by the notifiable, no significant influence can be exercised on the target companies but from this and the notifiable has no control over the target company after the proposed acquisition or the planned increase of the qualifying holding, then the ad has to include the following information : 1 a meaningful representation of the General strategic objectives pursued with the acquisition. Specify in particular is how long the shares should be held by expected and whether the height of proportion of to be changed in a foreseeable period of time after the acquisition;

2. a representation to the intended future influence in the target company, stating the reasons therefor;

3. comments on the readiness and the economic ability, unless this is necessary to provide in the future another capital of the target company.

References

Section 15 (1) as far as this regulation the Bankwesengesetz - BWG, Federal Law Gazette I no. 532/1993, referenced is I this in the version of Federal Law Gazette No 117/2015 shall apply.

(2) where this regulation VAG 2016, Federal Law Gazette I no. 34/2015, referenced insurance supervisory Act 2016 -, this is in the version of Federal Law Gazette I no 112/2015 shall apply.

(3) If this regulation Austrian Stock Exchange Act, Federal Law Gazette I no. 555/1989, referenced on the Austrian Stock Exchange Act 1989 - this is no. in the version of Federal Law Gazette I 98/2015 to apply.

(4) in this regulation on the securities supervision Act 2007 - WAG 2007, Federal Law Gazette I no. 60/2007, referenced, this is in the version of Federal Law Gazette I no 117/2015 shall apply.

(5) where in this regulation on the payment Services Act - ZaDiG, Federal Law Gazette I no. 66/2009, referenced, this is no. in the version of Federal Law Gazette I apply 68/2015.

(6) where this regulation 2010, Federal Law Gazette I no. 107, referenced on the E-money law, this is no. in the version of Federal Law Gazette I apply 68/2015.

Entry into force

16. (1) effective this regulation with 1 January 2016.

(2) the regulation of the financial market authority (FMA) on the information that a notifiable, who is considering a purchase, a boost, a task, or a reduction of a qualifying holding in a credit institution, at an insurance company, at an investment firm, on an investment service providers, a payment institution or an E money institution, to submit to the FMA has (shareholder control regulation - EKV), Federal Law Gazette II No. 83 / 2009, last amended by Federal Law Gazette II No. 318 / 2013 that occurs at the end of 31 December 2015 override.

Ettl Kumpf Müller