Amendment To The Fma Cost Regulation (Fma-Kvo Novella 2013)

Original Language Title: Änderung der FMA-Kostenverordnung (FMA-KVO-Novelle 2013)

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302. Regulation of the Financial Markets Authority (FMA) amending the FMA Cost Ordinance (FMA-KVO-Novelle 2013)

On the basis of

1.

Section 19 (7) of the Financial Market Supervisory Authority Act-FMABG, BGBl. I n ° 97/2011, as last amended by the Federal Law BGBl. I No 184/2013,

2.

Section 21 of the Banking Intervention and Restructuring Act-BIRG, BGBl. I No 160/2013 (Art. I),

3.

Section 56 (6) of the Alternative Investment Fund Manager Law-AIFMG, BGBl. I No 135/2013 (Art. II),

4.

Section 45a (2) of the Operating Staff and Self-Employed Welfare Act-BMSVG, BGBl. No 100/2002, as last amended by the Federal Law of the Federal Republic of Germany (BGBl). I No 184/2013,

5.

Section 144 (2) of the Investment Fund Act 2011-InvFG 2011, BGBl. I n ° 77/2011, as last amended by the Federal Law BGBl. I No 184/2013,

6.

Section 2 (13) of the Real Estate Investment Fund Act-ImmoInvFG, BGBl. I n ° 80/2003, as last amended by the Federal Law BGBl. I No 184/2013, and

7.

Section 5 (2) of the Central Counterparty Act on Enforcement of the Law-ZGVG, BGBl. I No 97/2012 (Art. I), as last amended by the Federal Law BGBl. I No 70/2013,

Is prescribed:

The FMA-Cost Ordinance-FMA-KVO, BGBl. II No 340/2003, as last amended by the BGBl Regulation. II No 275/2011, shall be amended as follows:

1. § 1 Z 2 reads:

" 2.

the distribution of the costs of the accounting circuit 3 (securities supervision) to the payer in accordance with § 90 para. 1 WAG 2007 and § 5 para. 1 ZGVG. "

2. § 1 Z 2 reads:

" 2.

the allocation of the costs of the accounting circuit 3 (securities supervision) to the payer in accordance with § 90 para. 1 WAG 2007, § 56 para. 5 AIFMG, § 45a para. 1 BMSVG, § 144 para. 1 InvFG 2011, § 2 para. 12 ImmoInvFG and § 5 paragraph 1 ZGVG. "

3. § 3 (1) Z 1 reads as follows:

" 1.

Subject to payment pursuant to Section 69a (1) (1) and (2) of the Federal Elections Act (BWG), which are credit institutions pursuant to Article 1 (1) of the Federal Elections Act (BWG), or which are credit institutions pursuant to Article 9 (1) of the Federal Elections Act (BWG) and which carry out activities in Austria via a branch office, as well as costs the representative offices according to § 2 Z 17 BWG are, and subject to § 60 para. 1 ZaDiG, the payment institutions according to § 3 Z 4 lit. a ZaDiG or branch offices according to § 12 ZaDiG, and subject to a fee in accordance with § 22 paragraph 2 of the E-Money Act 2010, the electronic money institutions pursuant to § 3 paragraph 2 of the E-Money Act 2010 or branches pursuant to § 9 E-Money Act 2010 are, and subject to costs according to § 21 BIRG, the financial holding companies referred to in Article 4 (1) (20), (30) and (31) of Regulation (EU) No 575/2013 on prudential requirements for credit institutions and investment firms and amending Regulation (EU) No 648/2012, OJ L 139, 30.4.2012, p. No. OJ L 176, 27.6.2013, p. 1 and § 2 Z 15 FKG; "

4. § 3 (1) Z 3 reads:

" 3.

Paid in accordance with the provisions referred to in Section 1 (2) of the Treaty,

a)

Transactions with reporting instruments pursuant to Section 64 of the WAG 2007 (notifiable institutions);

b)

whose instruments subject to notification were admitted to a regulated market or other stock exchange according to Article 2 of the Austrian Stock Exchange Act (BörseG), but with the exception of the federal government (issuer);

c)

which have a concession as an investment firm according to § 3 (1) WAG 2007 or as an investment service provider pursuant to § 4 paragraph 1 WAG 2007, companies of the contract insurance, which carry out mediation transactions in accordance with § 3 para. 3 VAG , management companies according to § 5 paragraph 1 InvFG 2011, which have provided services pursuant to § 5 paragraph 2 Z 3 or 4 InvFG 2011, and AIFM according to § 4 AIFMG, the services according to § 4 paragraph 4 Z 1 or Z 2 lit. (a) or (c) AIFMG (providers of investment services);

d)

the central counterparty pursuant to Article 2 (1) (1) of Regulation (EU) No 648/2012, OJ L 206, 22.7.2012, p. No. 1, (hereinafter referred to as EMIR) are established domestily (central counterparty);

e)

who as a clearing member according to Art. 2 Z 14 EMIR at one in lit. (d) the central counterparty (clearing members);

f)

have a concession as an operating pension fund according to § 18 paragraph 1 BMSVG, as a management company pursuant to § 5 paragraph 1 InvFG 2011, as a capital investment company for real estate pursuant to § 2 para. 1 ImmoInvFG or as AIFM according to § 4 para. 1 AIFMG or are registered as AIFM pursuant to § 1 paragraph 5 Z 1 AIFMG as well as branch offices and non-EU-AIFM established pursuant to § 36 para. 2 InvFG 2011 or pursuant to § 33 AIFMG pursuant to § 39 paragraph 3 AIFMG (liquidator collective portfolio); "

5. § 6 (1) Z 1 reads:

" 1.

for the accounting unit 1:

a)

Section 69a (2) of the Federal Elections Act, in conjunction with Section 74 (2) of the BWG,

b)

Section 60 (2) of the ZaDiG in conjunction with Section 20 (2) of the ZaDiG,

c)

Section 22 (2) of the E-Money Act 2010 in conjunction with Section 60 (2) of the ZaDiG, "

6. Section 6 (1) Z 3 reads as follows:

" 3.

for the accounting unit 3:

a)

§ 2 (2) and (3), 64, 73, 74 and 90 WAG 2007 in conjunction with Section 14 (2) and (15),

b)

Section 5 (2) of the ZGVG in conjunction with Section 17 (2),

c)

§ 56 (6) AIFMG, § 45a sec. 2 BMSVG, § 144 sec. 2 InvFG 2011 and § 2 paragraph 13 ImmoInvFG in conjunction with § 19 paragraph 2, as well as "

7. In Section 6 (2), the phrase " 6. Monthly expulsion order, BGBl. II No 447/2001, as last amended by BGBl. II No 503/2002, ' replaced by the phrase " Order of the Order of the Order of Order, BGBl. II No 472/2006, as amended " .

8. § 7 para. 3 Z 1 reads:

" 1.

a credit institution or other taxable persons in accordance with Article 3 (1) (1) (1) with the minimum amount pursuant to section 69a (4) of the BWG, "

9. In Section 7, Section 3, Z 4, after the quote "§ 11" the expression " 3 Z 1 and 2 " .

10. In § 7 para. 3 Z 5 at the end, a supplement shall be added, in Z 6 at the end the word shall be added. "and" shall be replaced by a dash, and the following Z 7 to 9 shall be added:

" 7.

a central counterparty with the minimum flat rate in accordance with section 11 (3) Z 4,

8.

a clearing member with the minimum flat rate in accordance with Section 11 (3) Z 5,

9.

one of those in § 3 paragraph 1 Z 3 lit. (f) persons with a minimum flat rate according to § 11 (3) Z 6 or 7 "

11. In § 10 Z 3, at the end the point is replaced by a stroke point and the following Z 4 to 6 are added:

" 4.

central counterparties pursuant to § 3 paragraph 1 Z 3 lit. d (sub-accounting circuit 4);

5.

Clearing members according to § 3 para. 1 Z 3 lit. e (Subaccounting circuit 5);

6.

Management of collective portfolios according to § 3 paragraph 1 Z 3 lit. f (Subaccounting circuit 6). "

12. § 11 together with the title is:

" Minimum flat rate

§ 11. (1) On the basis of the cost measurement established in accordance with the provisions of this Regulation, a percentage of the costs to be charged which is less than the minimum flat-rate amount for the taxable person referred to in paragraph 3 shall be given to the To prescribe a fee for the minimum flat-rate amount.

(2) The FMA shall be entitled to apply the minimum flat-rate amounts, as laid down in paragraph 3, per person liable for costs, when the annual costs are apported. The accounting surpluses resulting from the introduction of minimum flat-rate amounts shall be offset in such a way that the compensation shall be made in stages within the group of taxable persons, with institutions subject to reporting requirements in accordance with § 10 Z 1, which shall be subject to the following: The central institute, on the one hand, and other institutions subject to reporting requirements in accordance with § 10 Z 1, on the other hand, are in each case considered as a group of chargeable

(3) The minimum flat rate is for paid

1.

Institutions subject to notification in accordance with § 10 Z 1

500 euro;

2.

Issuers pursuant to § 10 Z 2

500 euro;

3.

Providers of investment services in accordance with § 10 Z 3

500 euro;

4.

central counterparties pursuant to § 10 Z 4

EUR 1 000;

5.

Clearing members according to § 10 Z 5

500 euro;

6.

Managing collective portfolios according to § 10 Z 6,
as far as there are no registered AIFM in accordance with § 3 para. 1 Z 3 lit. f are

EUR 1 000;

7.

Registered AIFM according to § 3 para. 1 Z 3 lit. F

500 euros. "

13. In Section 14 (2), the date shall be: "31 March" by the date "30th June" replaced.

14. § 16 (1) last sentence reads:

" In the case of management companies, 67 vH of the proceeds from services pursuant to § 5 (2) (2) (3) and (4) of the InvFG 2011, with AIFM 67 vH of the revenues from services pursuant to § 4 (4) (4) (1) and (2) (2) (lit). a and c AIFMG shall be taken into account. "

15. In § 16 para. 2, after the quote "§ 11 (3)" the expression "Z 3" .

16. The previous § 17 receives the paragraph designation "§ 20" .

17. The previous § 18 receives the paragraph designation "§ 21" .

18. § § 17 to 20 together with headings and article names are:

" Subaccounting Circle 4 (Central Counterparties)

§ 17. (1) The FMA shall determine the amount of the amounts paid to the taxable persons in accordance with § 10 Z 4, calculated in accordance with their share of the clearing services provided domestily. The share is calculated according to the ratio of the total volume of all transactions in financial instruments according to § 1 Z 6 WAG 2007, which the individual paid according to § 10 Z 4 completed in the past financial year, to the total volume of all transactions. Transactions in financial instruments according to § 1 Z 6 WAG 2007, all of which have been carried out in accordance with § 10 Z 4 in the past year.

(2) The taxable persons according to § 10 Z 4 have the FMA the reference data.

1.

the total volume of all transactions in financial instruments which they have unwound in accordance with § 1 Z 6 WAG 2007 and

2.

The absolute share of each of their clearing members in the total volume of all transactions in financial instruments reported by them according to Z 1 in accordance with § 1 Z 6 WAG 2007

by 30 June of the following year. Any foreign currency amounts are to be converted into euros at the exchange rate, which has been valid at the time the transaction was concluded.

Subaccounting Circle 5 (clearing members)

§ 18. In accordance with § 10 Z 5, the FMA has taken advantage of the amounts paid out in detail in accordance with § 10 Z 5, calculated according to their share of the central counterparties established by them as a clearing member for one or more central counterparties established in the domestic territory. Clearing service performance in the total volume of clearing services provided by these central counterparties. In doing so, the total volume of the clearing services provided shall be based on the reference data for the relevant FMA financial year referred to in Article 17 (2). For the calculation of the share in the total volume of clearing services provided, § 17 para. 1 second sentence shall apply accordingly.

Subaccounting Circle 6 (liquidator collective portfolio)

§ 19. (1) The taxable persons in accordance with § 10 Z 6 shall forward to the FMA the reference data of the previous financial year audited by auditors by 30 June of the following year.

(2) As reference data in accordance with paragraph 1, the administrative costs of the operating pension funds and the commissions received by the AIFM, management companies and capital investment companies shall apply to persons liable for costs pursuant to § 10 Z 6. for real estate for the FMA financial year in question. These revenues do not include those proceeds which have been passed on by a person liable to a charge in accordance with § 10 Z 6 to other chargeable persons in accordance with § 10 Z 6 and which are to be reported by the latter as reference data in accordance with paragraph 1. Any foreign currency amounts are to be converted into euros at the exchange rate, which was valid at the time the administrative costs or commission received the order.

(3) The FMA has the amounts paid to the taxable persons in accordance with § 10 Z 6 in detail, calculated on the basis of their share in the total volume of the administrative costs of the operating pension funds and the commission received by the company. AIFM, management companies and capital investment companies for real estate. The proportion shall be measured according to the ratio of the total volume of all administrative costs or commission income received by the individual responsible for payment in accordance with § 10 Z 6 in the previous financial year, minus those proceeds which are to be paid pursuant to section 16 (1) of the , to the total volume of all administrative costs and commissions received, all of which have been charged in accordance with § 10 Z 6 in the previous year. In the case of registered AIFM, only 50 vH of the commissions received are to be taken into account.

Article III

Final provisions

References

§ 20. (1) As far as in this Regulation, provisions of the Financial Market Supervisory Authority Act-FMABG (BGBl. I n ° 97/2001), this is in the version of the Federal Law BGBl. I No 184/2013.

(2) Insofar as the provisions of the Banking Act-BWG (BGBl) in this Regulation are applicable. No 532/1993 is referred to in the version of the Federal Law BGBl (Federal Law Gazette). I No 184/2013.

(3) Insofar as this Regulation provides for provisions of the Payment Services Act-ZaDiG (BGBl. I n ° 66/2009), this is in the version of the Federal Law BGBl. I No 184/2013.

(4) As far as in this Regulation the provisions of the E-Money Act 2010 (BGBl. I n ° 107/2010), this is in the version of the Federal Law BGBl. I No 184/2013.

(5) As far as the provisions of the Banking Intervention and Restructuring Act-BIRG are referred to in the Regulation, this is in the version of the Federal Law BGBl. I No 160/2013 (Art. I).

(6) As far as in this Regulation, provisions of the Insurance Supervision Act-VAG (BGBl. No. 569/1978), this is in the version of the Federal Law BGBl. I No 184/2013.

(7) Insofar as this Regulation provides for provisions of the Securities Supervision Act 2007-WAG 2007 (BGBl. I n ° 60/2007), this is in the version of the Federal Law BGBl. I No 184/2013.

(8) As far as in this Regulation the provisions of the Börsegesetz-BörseG 1989 (BGBl. No. 555/1989), this is in the version of the Federal Law BGBl. I No 184/2013.

(9) As far as in this Regulation provisions of the Central Counterparty Enforcement Act-ZGVG (BGBl. I n ° 97/2012), this is in the version of the Federal Law BGBl. I No 70/2013.

(10) As far as in this Regulation the provisions of the Investment Fund Act 2011-InvFG 2011 (BGBl. I n ° 77/2011), this is in the version of the Federal Law BGBl. I No 184/2013.

(11) Where reference is made in this Regulation to provisions of the Alternative Investment Fund Manager Law-AIFMG, this is in the version of the Federal Law BGBl. I No 135/2013.

(12) As far as in this Regulation, provisions of the Real Estate Investment Fund Act-ImmoInvFG (BGBl. I n ° 80/2003), this is in the version of the Federal Law BGBl. I No 184/2013.

(13) As far as this Regulation is based on provisions of the Operational Staff Regulations and Self-Employment Welfare Provisions (BMSVG) (BGBl. I n ° 100/2002), this is in the version of the Federal Law BGBl. I No 184/2013.

(14) Insofar as this Regulation is based on provisions of the Pensionskassengesetz-PKG (BGBl. No. 281/1990), this is in the version of the Federal Law BGBl. I No 184/2013.

(15) As far as this Regulation is applicable to the provisions of the Financial Conglomerates Act-FKG (BGBl. I n ° 70/2004), this is the BGBl version. I No 184/2013. "

19. The title of § 21 reads:

"Entry into force and transitional provisions"

20. The following paragraphs 8 and 9 are added to § 21:

" (8) It shall enter into force:

1.

§ 1 Z 2, as amended by Z 1 of the BGBl Regulation. II No. 302/2013 as well as § 3 para. 1 Z 3 lit. a to e, § 6 para. 1 Z 1 and Z 3 lit. a and b, § 6 para. 2, § 7 para. 3 Z 4, 7 and 8, § 10 Z 4 and 5, § 11 para. 1, 2 and 3 Z 1 to 5, § 14 para. 2, § 16 para. 2, § 17, § 18, § 20 and § 21 in the version of the Ordination BGBl. II No 302/2013 at the end of the day of the event;

2.

§ 1 Z 2, as amended by Z 2 of the BGBl Regulation. 1 and Z 3 lit. f, § 6 para. 1 Z 3 lit. c, § 7 para. 3 Z 1 and 9, § 10 Z 6, § 11 para. 3 Z 6 and 7, § 16 para. 1 last sentence and § 19 in the version of the Ordination BGBl. II No 302/2013 with 1. Jänner 2014.

(9) By way of derogation from § 9, the following shall apply:

1.

Subject to the obligation to pay a fee in accordance with Section 3 (1) (1) (1), the costs of which as a financial holding company result in accordance with § 21 BIRG, are required for the performance of advance payments for the 2014 financial year if they are to be paid by the FMA on 31 December 2014. October 2013 as a financial holding company.

2.

Subject to a fee according to § 3 (1) Z 3 lit. f are committed to the performance of advance payments for the fiscal year 2014, if they are at 31. October 2013 on a concession as an operating pension fund in accordance with § 18 para. 1 BMSVG, as a management company in accordance with § 5 paragraph 1 InvFG 2011, as a capital investment company for real estate pursuant to § 2 paragraph 1 ImmoInvFG or as AIFM pursuant to § 4 para. 1 AIFMG have or are registered as AIFM according to § 1 paragraph 5 Z 1 AIFMG, in accordance with § 36 paragraph 2 InvFG 2011 or according to § 33 AIFMG established branch offices or non-EU-AIFM according to § 39 paragraph 3 AIFMG are.

3.

The prepayment for the financial year 2014 shall be to be submitted no later than 31 March 2014 to the persons referred to in Z 1 and Z 2. "

Ettl Kumpfmüller