247. Regulation of the financial market authority (FMA) on the information that a notifiable, who is considering an acquisition or an increase of a qualifying holding in a central counterparty to submit the FMA has (central counterparties shareholder control regulation ZG-EKV)
On the basis of article 8 of the central counterparties Enforcement Act ZGVG, Federal Law Gazette I no. 97/2012, is prescribed:
Scope of application
§ 1 (1) is this regulation to apply to ads that the FMA pursuant to article 31 paragraph 2 first subparagraph of Regulation (EU) No. 648/2012 on OTC derivatives, central counterparties and trade repositories, OJ No. L 201 of the 27.07.2012, to transmit p. 1, are.
(2) the display of a proposed acquisition of participation by a financial counterparty pursuant to article is to convey 2 Z 8 of the Regulation (EU) No. 648/2012, which is subject to supervision by the FMA, are Z 1-5 on this indicator § 3 para 2, not to apply article 4, paragraph 1 Z 2-5, article 5 and article 7.
Information on natural persons and non-natural persons, as well as person associations
2. (1) the under this regulation by the notifiable pursuant to article 31 paragraph 2 of Regulation (EU) individuals payable to no. 648/2012 (notifiable) shall be indicated with
1. full name, 2. date of birth, 3. place of birth and 4. address of the main residence.
(2) non-natural persons payable under this regulation by the notifiable, person associations and purpose assets shall be indicated with
1 company or label, 2. legal form, 3rd seat and seat land, 4 seat and 5 the number of or the order features of a similar registration, unless such registration is.
Information referring to
Supplement collection, General information
The General documents and declarations referred to in paragraph 2 and the other documents referred to in this section and declarations subject to § 1 para 2 are § 3 (1) a display of a proposed acquisition of participation under indication of the extent of the intended participation to be attached; a curriculum vitae of the notifiable, provided that it is a natural person, and curriculum vitae of each natural person referred to in paragraph 2 are indicating Nos. 3 and 5 be accompanied with CVS have to contain the relevant training and experience as well as the current activities and additional functions of the respective person. Supplement collection to be annexed to the display a supplement directory is anyone then to precede that maps to the continuously numbered inserts of the corresponding provision in this regulation.
(2) the following are an advertisement to attach general documents and statements:
1. a 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 on the respective register site can be referenced instead of the template of extracts from public registers under Austrian jurisdiction.
2. officially certified copies of the current statute, the current partnership agreement or equivalent agreements, unless the notifiable is not a natural person; instead of the template of officially certified copies of documents that Harvesters are part of the document collection of the companies book in accordance with section 1, paragraph 1, can be referenced on this.
3. unless the notifiable no natural person is a list of the management bodies 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. a statement whether intended is Managing Director of the central counterparty, in which the participation is proposed (hereinafter: central counterparty), Exchange, and they should be replaced by which persons.
Information about the reliability
§ 4 (1) which is notifiable to specify when the display
1. whether a judicial criminal proceedings is conducted against him or whether a criminal proceedings for a crime or offence; been performed earlier This is to prove by appropriate evidence;
2. against him in connection with a business an administrative penal proceedings or comparable proceedings to any other jurisdiction is or has been completed, with a sentence or admonition, in the last ten years;
3. a debtor in bankruptcy proceedings, composition proceedings or comparable proceedings is involved or was;
4. whether a supervisory authority, whose rules he is or was, any other authority or another court against him has launched an inquiry or an action taken in the last ten years, 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 referred to in 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 has been tested such as 3 or 5 as the acquirer of qualifying holding in a credit institution, insurance company, an investment firm, at an investment service providers, a payment institution or an electronic money institution by a supervisory authority under applicable supervisory law for the supervision pursuant to section 3 para 2. 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 regarding companies that derived from him and every person according to § 3 para 1 Nos. 3 and 5.
Ownership and group affiliation, as well as other opportunities to exert influence
§ 5. The following information on direct and indirect ownership, to add to the group membership and other influence of the notifiable are a display:
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 responsible authorities in Member States or third countries, the financial institutions other for the supervision of credit institutions, insurance companies, payment institutions, electronic money institutions, or the financial markets , be supervised 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
Section 6 (1) of the display is to include a presentation of financial and other interests of the notifiable to the qualifying holding. The representation must describe the business relationships, which maintains the notifiable or derived from him or controlled, each check company to
1. the central counterparty and the companies controlled by it;
2. the holders of the amount callable capital and voting rights to the central counterparty;
3. the clearing members of the central counterparty, including the amount of any unilateral or reciprocal participation;
the managers and the members of the Board of supervisors of the central counterparty.
(2) close links within the meaning of article 2 Z 24 of the Regulation (EU) No. 648/2012 by persons pursuant to section 3 para 2 No. 3 to in para 1 second sentence are persons referred to name the representation referred to in paragraph 1.
(3) it shall be indicated in the representation referred to in paragraph 1:
1 according to § 3 para 2 Z 3, empowered at the same time on the basis of law, statutes, memorandum of association or an equivalent agreement referred to in paragraph 1 to conduct the business of an owner of capital or voting rights no. 2 or the central counterparty themselves or their business actually lead. those persons.
2. those persons who are also owners of capital or voting rights on notifiable and owners of capital or voting rights to the central counterparty, being the amount of capital or voting rights to specify.
(4) on the interests or activities of the notifiable, which could conflict with the interests of the central counterparty to a sound and prudent management, is to deal with separately in the representation referred to in paragraph 1 and to explain how to prevent that these interests adversely affect the central counterparty.
Financial condition and creditworthiness of the notifiable
Section 7 (1) which is notifiable to represent its economic conditions.
(2) when preparers notifiable, the representation must contain following information to the notifiable pursuant to paragraph 1:
1. annual financial statements and, if they are to set up or voluntarily provided on management reports of the last three financial years;
2. reports on the audit of annual financial statements independent auditors of the past three business years, are to set up or established voluntarily.
A notifiable registrants in a corporation is involved, are the information display to Nos. 1 and 2 for the group level to present.
(3) in not denominated notifiable, representing must contain the following information and documents referred to in paragraph 1:
1. a complete list and description of the sources of income;
2. a current statement of assets, stating all liabilities;
3. unless 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 documents are not available the notifiable pursuant to the first sentence, he has to justify this.
Financing of the acquisition, disclosure all agreements
§ 8. A meaningful representation and appropriate evidence of the presence of vegetation 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
§ 9 (1) when the notifiable by the proposed acquisition or the planned increase of the qualifying holding is control over the central counterparty learns a business plan to be attached, you followed the qualified participation in the central counterparty to 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 business and organizational structure of the central counterparty (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 central counterparty;
4. the possible realignment of the business activities;
5. a planned change in the financial structure of the central counterparty;
6. General specifications and requirements for the inclusion and integration of the central counterparty 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 versions of readiness and the economic ability to the central counterparty in the future further capital, unless this is necessary, available to provide for.
(3) the details of the planned development of the assets, financial and earnings situation include the plan balances, the plan profit and loss forecasts, as well as the budgets for both the next three fiscal years after the acquisition or the planned increase of the qualifying holding for the central counterparty as well as for the group. They have in particular
1. the projected capital indicators, 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 business and organizational structure of the central counterparty 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 used, 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 the proposed acquisition or the planned increase of the qualifying holding of the central counterparty capital or voting rights shares by 20 per cent until held 50 per cent of the notifiable or of this on the central counterparty 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 central counterparty , shall be attached to the display documents contain the following information:
1. meaningful information on the planned strategic development in accordance with paragraph 2 and 2. meaningful information referred to in paragraph 4; and these must include detailed statements about the nature of the intended future influence on the budget and the allocation of capital in the central counterparty.
(6) if through the proposed acquisition or the planned increase of the qualifying holding to the central counterparty capital or voting rights are held vH under 20 the notifiable, that no significant influence can be exercised on the CCP but and the notifiable has no control over the CCP 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 expected the shares are held 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 central counterparty, stating the reasons therefor;
3 versions to the readiness and the economic ability to the central counterparty in the future further capital, unless this is necessary, to make.
Ettl Kumpf Müller