Owner Control Regulation 2016 - Ekv 2016

Original Language Title: Eigentümerkontrollverordnung 2016 – EKV 2016

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425. Regulation of the Financial Markets Authority (FMA) on the information provided by a person who is subject to a disclosure, an acquisition, an increase, a task or a reduction of a qualifying holding in a credit institution, an insurance undertaking. or reinsurance undertakings, an investment firm, an investment service undertaking, a payment institution or an e-money institution to be submitted to the FMA (Regulation of Ownership Control 2016-ECV 2016)

Due to § 20b, Section 3 of the Banking Act-BWG, BGBl. No. 532/1993, as last amended by the Federal Law BGBl. I No. 117/2015, section 26 (3) of the Insurance Supervision Act 2016-VAG 2016, BGBl. I. No. 34/2015, as last amended by the Federal Act BGBl. I n ° 112/2015 and Section 11b (3) of the Securities and Markets Act 2007-WAG 2007, BGBl. I n ° 60/2007, as last amended by the Federal Law BGBl. I No 117/2015, shall be arranged:

Section 1

General provisions

Scope

§ 1. This Regulation is based on ads in accordance with § 20 (1) and (2) of the Federal Elections Act (BWG), Section 24 (1) and (2) of the German Federal Act (WAG) in connection with Section 20 (1) and (2) of the Federal Act on the Law of the Law of the Federal State of WAG in connection with Section 20 (1) and (2) of the German Federal Law for the Law of the Federal Act of Germany (BWG) in connection with § applicable.

Definitions

§ 2. The following definitions shall apply to this Regulation:

1.

"Display": viewing screen according to § 20 (1) and (2) of the Federal Elections Act (BWG), § 24 (1) and (2) VAG 2016, § 11 para. 2 and 3 WAG 2007, § 11 paragraph 2 of the ZaDiG in conjunction with Section 20 (1) and (2) of the German Federal Law on Money (BWG) and § 8 (1) E-Money Act 2010 in conjunction with Section 20 (1) and (2) of the Federal Elections Act.

2.

"Display subject": Any person in accordance with § 20 (1) or 2 BWG, § 24 (1) and 2 VAG 2016, § 11 paragraph 2 or 3 WAG 2007, § 11 paragraph 2 ZaDiG in connection with § 20 paragraph 1 or 2 BWG or § 8 paragraph 1 E-Money Act 2010 in connection with § 20 para. 1 or 2 BWG to the Display to the Financial Market Supervisory Authority (FMA) is required.

3.

"Target company" means a credit institution as defined in Article 1 (1) of the BWG, an insurance undertaking in accordance with § 5 Z 1 or reinsurance undertaking pursuant to § 5 Z 2 VAG 2016, an investment firm according to § 3 paragraph 1 WAG 2007, an investment service provider in accordance with § 4 WAG 2007, a payment institution according to § 3 Z 4 lit. a ZaDiG or an e-money institute in accordance with § 3 paragraph 2 E-Money Act 2010, in which a qualifying holding is acquired, an existing qualifying holding is to be changed or a qualifying holding is to be given up.

4.

"Information" means any information, documents and declarations to be submitted by the person subject to the notification under this Regulation.

5.

"qualifying holding" means the direct or indirect holding of at least 10 vH of the capital or of the voting rights of a company, or another possibility of exercising a significant influence on the management of that undertaking Company.

Completeness, accuracy and timeliness of the display

§ 3. The taxable person bears the responsibility for the completeness, correctness and topicality of the information provided on the display or at the request of the FMA.

Submission

§ 4. (1) Show on the acquisition or an increase of a qualified participation pursuant to § 20 paragraph 1 BWG, § 24 Abs. 1 VAG 2016, § 11 Abs. 2 WAG 2007, § 11 Abs. 2 ZaDiG in conjunction with § 20 paragraph 1 BWG or § 8 Section 1 E-Money Act 2010 in conjunction with § Article 20 (1) of the Federal Elections Act (BWG) Appendix 1 together with the information to be submitted in accordance with Section 2 of this Regulation, to the FMA.

(2) Show on the task of a qualified participation or the underwriting of the legal limits according to § 20 paragraph 2 BWG, § 24 Abs. 2 VAG 2016, § 11 Abs. 3 WAG 2007, § 11 Abs. 2 ZaDiG in conjunction with § 20 paragraph 2 BWG or § 8 para. 1 E-Money Act 2010 in conjunction with Section 20 (2) of the Federal Elections Act (BWG) are listed in accordance with Appendix 2 together with the information to be submitted in accordance with Section 2 of this Regulation, to the FMA.

(3) The taxable person shall submit certified translations together with information to be provided under this Regulation which is not written in the German language. In individual cases, the FMA may dispense with certified translations if such translations are or may not be necessary for the prudential assessment.

Details of person: Natural persons

§ 5. The natural persons to be referred to under this Regulation shall be:

1.

full name,

2.

date of birth,

3.

Birth place, country of birth, nationality and

4.

Address of main residence

.

Person information: Non-natural persons and persons associations

§ 6. The non-natural persons, persons ' associations and assets to be assigned under this Regulation by the taxable person shall be:

1.

company or name,

2.

legal form,

3.

Seat and seat,

4.

Administrative seat and

5.

the company's book number or the ordinal characteristics of a comparable registration, provided that such registration exists,

.

Section 2

Information to be provided

General

§ 7. (1) An indication of the acquisition or increase of a qualifying holding pursuant to § 20 paragraph 1 BWG, § 24 Abs. 1 VAG 2016, § 11 Abs. 2 WAG 2007, § 11 paragraph 2 ZaDiG in conjunction with § 20 paragraph 1 BWG or § 8 paragraph 1 E-Money Act 2010 in conjunction Section 20 (1) of the Federal Elections Act (BWG) shall include the information referred to in § § 8 to 14, indicating the scope of the planned participation.

(2) If the target company is an investment service provider according to § 4 WAG 2007 in the context of an ad according to paragraph 1 and it is not an indication of a person subject to a notice pursuant to paragraph 3, the advertisement shall be given in the extent of the planned participation, the information referred to in

1.

§ 8,

2.

§ 9,

3.

Section 11,

4.

Section 12 (2) and (3) (1) and (2),

5.

§ 13 and

6.

Section 14 (5), irrespective of the amount of the intended acquisition,

shall be attached.

(3) If the taxable person is within the scope of an ad according to paragraph 1

1.

a credit institution, a pension fund, an insurance undertaking or a reinsurance undertaking, an investment firm, an investment service undertaking, a payment institution or an electronic money institution located in the country of origin, shall be provided with an indication of the extent of the planned participation, the information referred to in

a)

Section 8 (1) (6) and (7),

b)

Section 8 (2),

c)

§ 9 (1) (1) and (9) (1) (1) (1) in conjunction with Section 9 (4),

d)

Section 9 (3), with the exception of the tests carried out by the FMA,

e)

Section 11 (1) and (2),

f)

§ 13 and

g)

§ 14

shall be attached. A credit institution which is affiliated to a central institution and which indicates a participation in that central institution shall indicate only the extent of the planned participation;

2.

a credit institution authorised in a State of the European Economic Area in accordance with Article 4 (1) (1) of Regulation (EU) No 575/2013, an investment firm pursuant to Article 4 (1) (1) (1) of Directive 2004 /39/EC on markets in financial instruments, Amendments to Council Directives 85 /611/EEC and 93 /6/EEC and to Directive 2000 /12/EC of the European Parliament and of the Council and repealing Council Directive 93 /22/EEC, OJ L 175, 5.7.2000, p. No. 1), as last amended by OJ L 327, 28.11.2004, p. No. 23 or an insurance or reinsurance undertaking established in a Member State of the European Economic Area, the notification shall, with indication of the extent of the proposed participation, be the information referred to in Z 1, § 8 (1) (1) (1) (1) (1) (1) (1) (1) (1) (1) and 2, § 9 (1) (4) and (10) (1) and (3);

3.

A group company of a group consisting of several taxable persons must submit only those information which are not already submitted by other taxable persons in respect of the same acquisition process. If the taxable person makes use of this relief, he/she shall be liable for the information submitted by the other persons who are subject to the notification in accordance with § 3;

4.

a solidarity institution or a central institution within the framework of a decentralised sector network shall be shown on the display where the participation for the purposes of ensuring compliance with the minimum requirement of own resources referred to in Part 3, Title 1, Chapter 1 of the Regulation (EU) No 575/2013 is to indicate only the extent of the planned participation.

(4) An indication of the task of a qualified participation or underwriting of the legal limits for participations according to § 20 paragraph 2 BWG, § 24 Abs. 2 VAG 2016, § 11 Abs. 3 WAG 2007, § 11 sec. 2 ZaDiG in conjunction with § 20 paragraph 2 BWG or Section 8 (1) of the E-Money Act 2010 in conjunction with Section 20 (2) of the Federal Elections Act shall be accompanied by the information referred to in Article 8 (1) (1) (1) and the scope of the planned investment task as well as the planned acquirers of such participation shall be included, if known are to be indicated. In the case of the underwriting of the legal limits for holdings pursuant to § 20 paragraph 2 BWG, § 24 Abs. 2 VAG 2016, § 11 Abs. 3 WAG 2007, § 11b paragraph 2 ZaDiG in conjunction with § 20 paragraph 2 BWG or § 8 Section 1 E-Money Act 2010 in conjunction with § 20 paragraph 2 BWG shall also be required to provide the information referred to in Article 8 (1) (2). The companies referred to in paragraph 3 (1) and (4) shall not submit the information referred to in Article 8 (1) (1) (1) and (2).

(5) In the cases referred to in paragraphs 2 to 4, the FMA may, at any time in individual cases, require the submission of further information referred to in this Regulation, which is necessary for the supervisory assessment.

General information

§ 8. (1) The following general documents and declarations shall be attached to one ad:

1.

Proof of the identity or the legal existence of the person subject to the notification. As such, natural persons shall be subject, in particular, to copies of official photographs and, for legal persons, up-to-date extracts from the company's register or a comparable register;

2.

a copy of the current articles of association, the current social contract or an equivalent agreement, provided that the person is not a natural person;

3.

if the taxable person is not a natural person, a list of the managing bodies and personally liable partners, including the nature and scope of their powers and the distribution of the business. If the taxable person is an earning capacity, a presentation shall be added to indicate whether and in which percentage of the persons participating in the distribution of the profit shall be involved;

4.

an up-to-date, meaningful presentation of the taxable person's business activities;

5.

if the taxable person is not a natural person, a list of the economically beneficiaries of the taxable person, indicating the reasons for economic favouritism and the extent to which they are to be paid;

6.

a statement as to whether, in the context of the proposed acquisition, another authority or court has carried out an investigation or has carried out an investigation. This presentation shall include, in particular, the address and designation of such an authority or of such a court and a presentation of the relevant procedural status or result of such proceedings. This shall be as far as possible to be documented by official documents;

7.

a statement as to whether the intention is to exchange business managers of the target company and by which persons they are to be replaced.

(2) The ad shall be accompanied by a curriculum vitae of the taxable person, provided that he is a natural person, and shall be accompanied by the curriculum vitae of each natural person in accordance with paragraphs 1, Z 3 and 7. Curriculum vitae have the relevant training and professional experience, as well as the current activities and additional functions of the person concerned.

Reliability Information

§ 9. (1) The taxable person shall indicate on the display:

1.

Whether against him

a)

a judicial criminal procedure is conducted, or

b)

a criminal case has been conducted at an earlier stage in respect of a crime or offence, to be substantiated by appropriate supporting evidence;

2.

whether, in the context of an entrepreneurial or other professional activity, an administrative criminal procedure or a comparable procedure is conducted in accordance with another legal order or with a penalty or a warning in the last five years have been finalised;

3.

whether the debtor is involved in insolvency proceedings, compensation proceedings or a similar procedure, or, if the period of the granting of the insolvency file has not yet expired. This shall also apply where a comparable offence has been achieved abroad;

4.

whether a supervisory authority whose supervision it is subject to or under supervision has initiated or has taken a measure against it in the last 10 years and whether and how such a procedure has been completed;

5.

whether an authority or a court of law does not grant him any registration, authorisation, authorisation, membership or entitlement to pursue a business or other professional activity in the last 10 years, or has been repealed or a corresponding procedure has been carried out.

(2) In accordance with paragraph 1 (1) (1), criminal proceedings are not to be disclosed which have been terminated for legal reasons or due to a lack of reasonable suspicion or have been terminated with an acquittment. Not to mention are further criminal proceedings which have been terminated by resignation of the persecution if five years have passed after the resignation of the persecution, as well as convictions which have been eradicated.

(3) The taxable person must also state whether his reliability or the reliability of a person pursuant to Article 8 (1) (3) or (7) as the acquirer of a qualifying holding in a credit institution, insurance or insurance a reinsurance undertaking, an investment firm, an investment service undertaking, a payment institution or an electronic money institution has been audited by a supervisory authority responsible for the supervision of such a reinsurance undertaking. It shall continue to declare whether a comparable test has been carried out by another authority. Official documents must be attached to the ad. If such documents are not available to the person subject to the notification, he or she shall justify this.

(4) The information required in accordance with paragraph 1 shall also be made by the person subject to the notification with regard to undertakings directed or controlled by him or by any person in accordance with Article 8 (1) (3) and (7).

Participation conditions and group membership as well as other possibilities of influence

§ 10. An ad shall be accompanied by the following information on direct and indirect participation, group affiliation and other possible means of influence of the taxable person:

1.

if the taxable person is a member of a group,

a)

a meaningful presentation of the group structure with an organizational chart, indicating each group company, as well as the shares held in each of the shares and the voting rights in percent,

b)

a meaningful presentation of the Group's business activities; and

c)

a list of the group undertakings by the authorities in Member States or third countries which are responsible for the supervision of credit institutions, insurance or reinsurance undertakings, payment institutions, e-money institutions, other financial institutions, or financial markets, as well as the designation and address of the supervisory authorities concerned;

2.

if the taxable person is a natural person, a list of the undertakings whose business he or she is carrying out or which he has control. In each case, it shall also indicate whether the taxable person carries out or is in control of the business of the stated undertaking;

3.

if the taxable person is not a natural person, a list of the natural and legal persons not belonging to the group, commercial companies and companies of other forms of society, as well as the special purpose of the person concerned, Notifiers hold at least 10 vH of the capital or voting rights, or which, irrespective of whether the capital or voting rights are held, can exercise a significant influence on the person subject to the disclosure, or who, if the Notifiable person is an earning capacity, in the distribution of its profits in the amount of of at least 10 vH. Existing voting rights agreements should be explained.

Relevant business relationships, family ties and other relevant relationships as well as employment interests

§ 11. (1) The ad shall be accompanied by a presentation of the financial and other interests of the person subject to the notification of the qualified participation.

(2) The presentation referred to in paragraph 1 shall describe the business relationships of the taxable person or a company which he or she has directed or controlled, which shall be indicated in each case,

1.

the target company,

2.

the undertakings controlled by the target undertaking;

3.

the holders of capital shares in the target company, specifying the amount of the capital shares;

4.

the holders of voting rights in the target company, indicating the amount of the voting rights,

5.

the directors of the target company and persons who actually conduct the business of the target company; and

6.

the members of the supervisory body of the target company

maintains.

(3) Enge ties within the meaning of § 48a (1) Z 9 lit. a to c BörseG of persons pursuant to § 8 (1) Z 3 to the persons referred to in paragraph 2 (2) (3) to (5) shall be named in the presentation in accordance with paragraph 1.

(4) It shall be stated in the presentation in accordance with paragraph 1:

1.

those persons in accordance with Section 8 (1) (3) who, under the terms of the law, the articles of association, the social contract or an equivalent agreement, are at the same time authorised to conduct the business of a holder pursuant to paragraph 2 (2) (3) and (4) or of the target company, or to actually do business;

2.

those persons who, at the same time, are the holders of capital or voting rights in the taxable person and the holder of capital or voting rights in the target company, the amount of the capital or voting rights being given in each case.

(5) In the representation referred to in paragraph 1, the interests or activities of the taxable person who could be against the interests of the target company in a sound and prudent management shall be dealt with separately and shall explain how the aim is to prevent these interests from having a negative impact on the target company.

Financial situation and creditworthiness of the taxable person

§ 12. (1) The taxable person shall present his economic conditions.

(2) In the case of an accounting person, the presentation in accordance with paragraph 1 shall contain the following information on the person subject to the notification:

1.

Annual accounts and, where they are to be drawn up or voluntarily drawn up, annual reports of the last three financial years.

2.

Reports on the annual financial statements of the last three financial years, provided that they have been audited by a statutory auditor on the basis of statutory provisions or were audited by a statutory auditor.

If a reporting obligation is integrated into a group, the information according to Z 1 and 2 is also to be presented for the group level.

(3) In the case of non-reporting persons, the presentation in accordance with paragraph 1 shall contain the following information and documents:

1.

A complete list and description of the sources of income,

2.

an up-to-date asset list, including all liabilities, and

3.

provided that there is a duty to submit an income tax return or the taxable person has made it voluntarily, the income tax returns and income tax notices of the last three calendar years. If these are not available, documents with comparable information content are not available.

(4) Where the creditworthiness of the taxable person has been assessed by one or more credit rating agencies, the taxable person shall indicate the most recent credit rating of each credit rating agency and shall be accompanied by meaningful documentation from the rating agency of the credit rating agency. proof. The same shall apply in respect of the creditworthiness of the group to which the taxable person is a member and, in respect of undertakings not belonging to the group, through which the taxable person is subject, provided that he is a natural person, or whose control is Business he leads. Where the person concerned does not have the documents referred to in the first sentence, he shall give reasons for this.

Financing of the acquisition, disclosure of all agreements

§ 13. The display shall provide a meaningful presentation and appropriate evidence of the existence and economic origin of the yaws and extrants to be used for the acquisition, as well as all related to the acquisition and use of the shall be accompanied by agreements and contracts intended to be acquired.

Business plan, presentation of strategic goals and plans

§ 14. (1) If the taxable person acquires control of the target company through the proposed acquisition or the planned increase of the qualifying holding, the advertisement shall be accompanied by a business plan which shall be accompanied by the acquisition or increase of the qualified participation in the target company's strategic objectives and plans of the person to whom it is subject. In particular, the business plan has meaningful information on the planned strategic development (paragraph 1). 2), on the planned development of the assets, financial and earnings situation (par. 3) as well as the impact on the corporate and organisational structure of the target company (par. 4).

(2) The information on the planned strategic development shall contain general comments on the main objectives of the acquisition of participation and the measures envisaged for the achievement of the objectives. These include in particular:

1.

The business strategy objectives and considerations for the acquisition of equity;

2.

the medium-term assets, financial and revenue targets;

3.

the desired synergy effects in the target company;

4.

the possible realignment of business activities;

5.

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

6.

general requirements and provisions for the integration and integration of the target company into the group structure and group structure of the acquirer. This has a description of the most important synergy effects with other companies of the Group and the Group, as well as a description of the principles and procedures for the management and management of the corporate relationships within the Group. and to include the group;

7.

Comments on the willingness and the economic ability to provide the target company with further capital in the future, if necessary.

(3) The information on the planned development of the assets, financial position and earnings situation shall include the plan balance sheets, the plinth accounts and loss of plans, and the financial plans for each of the next three financial years following the acquisition or the the planned increase of qualified participation both for the target company and for the Group. In particular,

1.

the forecast capital ratios,

2.

the information on the level of likely risk positions; and

3.

A view of planned intra-group transactions

to be included.

(4) The information on the impact on the corporate and organisational structure of the target company shall, in particular, indicate and describe the following:

1.

the composition and functions of the corporate bodies and of the committees which they have set up;

2.

accounting methods and management, control and control processes, as well as substantial changes to these methods and procedures. These statements also contain information on material changes in the internal audit and compliance function and on the change of senior staff;

3.

the IT systems used, IT security as well as significant changes to these systems;

4.

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

(5) Where, through the proposed acquisition or by the planned increase in the qualifying holding in the target company, capital or voting rights of 20 vH to 50 vH are held by the scoreboard subject or from that to the target company where a relevant influence can be exercised and, after the proposed acquisition or the planned increase in the qualifying holding, the taxable person has no control over the target company, the display shall be accompanied by the following documents: Information includes:

1.

Meaningful information on the strategic development envisaged in accordance with paragraph 2 and

2.

meaningful information in accordance with paragraph 4, whereby these detailed statements must include the nature of the intended future influence on the financial endowment and the capital allocation of the target company.

(6) If, as a result of the proposed acquisition or due to the planned increase of the qualifying holding in the target company, capital or voting rights shares under 20 vH are held by the scoreboard, but from this to the target company no , and after the proposed acquisition or increase of the qualifying holding, the person who is subject to the proposed acquisition does not have any control over the target company, the following information shall be provided on the display include:

1.

A meaningful presentation of the general strategic objectives to be pursued with the acquisition. indicate, in particular, how long the shares are expected to be held and whether the share level should be changed in a foreseeable period of time after the acquisition;

2.

a presentation of the intended future influence on the target company, giving the reasons for this;

3.

Comments on the willingness and the economic ability to provide the target company with further capital in the future, if necessary.

References

§ 15. (1) Insofar as the Banking Act-BWG, BGBl. I n ° 532/1993, this is in the version of the Federal Law BGBl. I No 117/2015.

(2) As far as in this Regulation to the Insurance Supervision Act 2016-VAG 2016, BGBl. I n ° 34/2015, this is in the version of the Federal Law BGBl. I No 112/2015.

(3) Insofar as this Regulation is applied to the 1989 Stock Exchange Act-BörseG, BGBl. I n ° 555/1989, this is in the version of the Federal Law BGBl. I No 98/2015.

(4) As far as in this Regulation the Securities Supervision Act 2007-WAG 2007, BGBl. I n ° 60/2007, this is in the version of the Federal Law BGBl. I No 117/2015.

(5) As far as the Payment Services Act-ZaDiG, BGBl. in this Regulation. I n ° 66/2009, this is in the version of the Federal Law BGBl. I n ° 68/2015.

(6) As far as this Regulation is based on the E-Money Act 2010, BGBl. I n ° 107, this is in the version of the Federal Law BGBl. I n ° 68/2015.

entry into force

§ 16. (1) This Regulation shall enter into force 1. Jänner 2016 in force.

(2) The Regulation of the Financial Markets Authority (FMA) on the information provided by a person who is subject to a notification, an acquisition, an increase, a task or a reduction in a qualifying holding in a credit institution, on a An insurance undertaking, an investment firm, an investment service provider, a payment institution or an e-money institution which has to submit to the FMA (Regulation on the control of the ownership of the securities), BGBl. II No 83/2009, as last amended by BGBl. II No 318/2013, shall expire on 31 December 2015.

Ettl Kumpfmüller