Bank Intervention And Restructuring Act, As Well As Amendments Of The Banking Act And The Financial Market Authority Act

Original Language Title: Bankeninterventions- und -restrukturierungsgesetz sowie Änderung des Bankwesengesetzes und des Finanzmarktaufsichtsbehördengesetzes

Read the untranslated law here: https://www.global-regulation.com/law/austria/2996266/bankeninterventions--und--restrukturierungsgesetz-sowie-nderung-des-bankwesengesetzes-und-des-finanzmarktaufsichtsbehrdengesetzes.html

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160. Federal law, enacted and amended the banking law and the financial market Authority Act the Bank intervention and restructuring Act

The National Council has decided:

Table of contents article 1 Bank intervention and restructuring Act article 2 amendment to the Banking Act article 3 amendment of the financial market Authority Act article 1

Bank intervention and restructuring Act (BIRG)

Table of contents



Type / clause



Subject / title



Article 1



Bank intervention and restructuring Act (BIRG)



1 section: General provisions



§ 1.



Scope of application



§ 2.



Exceptions



§ 3.



Definitions



2 part: The recovery plan



§ 4.



Create mandatory rehabilitation plan



§ 5.



Principle of proportionality



§ 6.



Content of the rehabilitation plan



§ 7.



Group restructuring plan



§ 8.



Examination of the restructuring plan



§ 9.



Measures for the removal of a



§ 10.



Change request



3 article: The settlement plan



§ 11.



Creation of compulsory settlement plan



§ 12.



Principle of proportionality



§ 13.



Contents of the execution plan



§ 14.



Group management plan



§ 15.



Examination of the settlement plan



§ 16.



Procedure for finding an obstacle for the ability to unwind



§ 17.



Measures to tackle an obstacle for the ability to unwind



§ 18.



Minimum requirements for financial instruments



§ 19.



Change request



4 section: Supervision



§ 20.



Competent authorities



§ 21.



Cost determination



section 22.



Procedural and penal provisions



5 article: Transitional and final provisions



section 23.



References



§ 24.



Linguistic equal treatment



§ 25.



Enforcement



section 26.



Entry into force



§ 27.



Transitional provisions



Appendix to article 6



Appendix to article 13



1 section: General provisions

Scope of application

§ 1. This federal law is to credit institutions in accordance with § 1 para 1 Bankwesengesetz - BWG, BGBl. No. 532/1993, as well as on financial holding companies referred to in article 4 paragraph 1 number 20, 30 and 31 of Regulation (EU) No. 575/2013 through prudential requirements to credit institutions and investment firms and for amending the Regulation (EU) No. 648/2012, OJ No. L 176 of the 27.6.2013 p. 1 and § 2 Z 15 financial conglomerates Act - FKG, Federal Law Gazette I no. 70/2004, to apply.

Exceptions

§ 2. This federal law is not applicable to the entities referred to in § 3 ABS. 1, 2 and 3 Z 1 to 5 and § 3 ABS. 4, 4a and 7 BWG.

Definitions

§ 3. In the meaning of this federal law the following definitions shall apply: 1 Institute: any legal entity referred to in paragraph 1;

2. parent company: a parent undertaking in accordance with article 4 paragraph 1 number 15 of the Regulation (EU) No. 575/2013;

3. subsidiary company: a subsidiary company in accordance with article 4 paragraph 1 number 16 of the Regulation (EU) No. 575/2013;

4. Group: a group of credit institutions in accordance with section 30 BWG, a credit Institute Federation in accordance with section 30a of the BWG or an institutional assurance system in accordance with article 113 paragraph 7 of the Regulation (EU) No. 575/2013;

5. branch: a branch office in accordance with article 4 paragraph 1 point (17) of Regulation (EU) No. 575/2013;

6 financial contracts include following contracts and agreements: a) paper contracts of value of, including: aa) contracts on the purchase, sale or borrowing securities, a group of securities or a value paper index;

BB) an option on a security, a group of securities or a securities index;

CC) a repurchase or reverse repurchase agreement with such a security, such a group of securities or a such securities index;

(b) goods contracts, including: aa) contracts on the purchase, sale or rental of goods, goods group, or an index of goods for the purpose of future delivery;

BB) an option on a commodity, a product group or a product index;

CC) a repurchase or reverse repurchase agreement with a such goods, a group of goods or such goods index;

(c) futures contracts (futures and forward contracts), including contracts (except contracts for goods) for the purchase, the sale or the transfer of a commodity or an other good, a service, a right or a share at a fixed price at a future time;

(d) swap agreements, which include the following: aa) interest rate swaps, options, futures or forwards; Cash or other foreign currency, precious metals or trade agreements; Currencies; a stock market index or a stock; an index of debt securities or a debt; Indices of goods or commodities; Weather; Emissions or inflation;

BB) total return, credit bonus or credit swaps cc) all agreements or transactions, the one subject to sublit. AA. or bb. mentioned agreement are similar and are widely used on the swap or derivative markets;

(e) agreements for the see the lit. a through e listed contracts or agreements;

7 critical features: activities, services and shops, shocks the economy or the financial markets in one or more Member States are expected at its setting;

8 core businesses: business units and related services, which represent a major source of its revenue, its profits or the value of his franchise for the institution.

2 part: The recovery plan

Create mandatory rehabilitation plan

4. (1) having each institution's § 3 Z is not part 4 a group according to, to create a remediation plan and submit the financial market authority (FMA). In a group, the parent Institute, the central organization or the Central Institute has to create a group restructuring plan in accordance with section 7 and to submit to the FMA.

(2) the FMA has to consider the proposed rehabilitation plan pursuant to section 8. If necessary, it has the institution according to § 8 para 4 to improve to urge. § 13 para 3 General Administrative Procedure Act - AVG, Federal Law Gazette No. 51/1991 is to apply mutatis mutandis.

(3) the Institute can be the reasoned request in the course of the submission of the restructuring plan, to be taken out by individual content requirements or are subject to a reduced level of detail with respect to the submitted information.

(4) for the grant of an application under paragraph 3, the FMA that is carefully to take, what possible consequences due to insolvency of the Institute for financial markets, other institutions or financing conditions to worry about. While it has the size of the Institute to consider its business model and its linkages with other institutions or the financial system in General.

(5) in any case, the Institute has annually to update its rehabilitation plan. The FMA is entitled to apply an update at a shorter interval to the Institute.

(6) the restructuring plan is to update without delay and to submit the FMA, after a change in the legal or organizational structure of the Institute, its activities or its financial situation has taken place, if the change could impact significantly on the recovery plan.

Principle of proportionality

5. (1) the FMA do without in accordance with par. 2 and 3 completely on the creation or updating of the rehabilitation plan. The waiver is to pronounce the FMA decision upon a reasoned request of the Institute.

(2) a waiver of the creation or updating of the rehabilitation plan is allowed only when in the case of the insolvency of an institution due to its size, its business model and its linkages with other institutions or the financial system in General, no significant adverse effects on the financial markets, other major institutions or financing conditions to worry about are.

(3) a waiver of the creation or update of the recovery plan is not allowed, unless one of the circumstances referred to in no. 1 to 3: 1 the institution or group has one or more subsidiaries or major branch offices in another Member State or a third country;

2. the assets of the Institute or of the group exceeds EUR 5 billion; or 3. ratio of total assets of the Institute or of the group to the Austrian gross domestic product exceeding 3 VH.

(4) which has the FMA to obtain an expert statement of the Oesterreichische Nationalbank (OeNB) on the existence of the requirements laid down in paragraph 2 in the proceedings referred to in paragraph 1.

(5) in the result of a change in the legal or organizational structure of the Institute, its activities or its financial situation, the Institute of the FMA has to show this without delay. The FMA has to check whether a waiver is still justified. This is not the case, the FMA has immediately to ask the Institute, to create a remediation plan.

Content of the rehabilitation plan

Section 6 (1) has the Institute to set out what measures the financial stability of the Institute can be restored if significant worsening of the financial situation in the redevelopment plan.

(2) in the restructuring plan, in particular the information of the annex to section 6 must be included. The FMA can apply at the Institute the inclusion of additional information. Furthermore, the FMA can the Institute apply, detailed records of financial contracts, in which the Institute participates, to lead.


(3) the reorganisation plan determines one or more Auslöseereignisse, whose occurrence, remedial measures are taken in a framework.

(4) the Auslöseereignis is to express the redevelopment plan in qualitative and quantitative indicators, which are related to the risk-bearing capacity of the Institute. The indicators must be easy-to-monitor and event. The FMA has to check whether the Institute adequately monitored the occurrence of Auslöseereignisses.

(5) an Auslöseereignis occurs, the Institute has to show this the FMA without delay.

(6) an Institute can also apply remedial measures if an Auslöseereignis does not exist.

(7) the restructuring plan must not assume the possibility of extraordinary financial support from public funds. In the restructuring plan must be how and when an institution in a stressful situation may apply for the use of Central-Bank facilities and what could be used as safety analyzed however.

Group restructuring plan

7. (1) the Group restructuring plan has a reorganization plan for 1 the parent Institute, the central organization or the Central Institute, 2. to include the entire group and 3 for each major subsidiary, associated or participating institution.

(2) it is to explain how the stabilization of the group as a whole or an institution of the group can be reached in a stressful situation.

(3) the Group restructuring plan has the information referred to in paragraph 6 both for: 1. the parent Institute, the central organization or the Central Institute, 2. the whole group and 3 for each major subsidiary, associated or participating institution to contain.

(4) those parts of the Group restructuring plan, regulating measures that would be to implement, by governing bodies of essential subsidiary, associated or participating institutions shall be approved prior to submission to the FMA by these management bodies, unless, of course, that the necessary for the implementation of the rehabilitation plan penetration capabilities of the parent Institute, the central organization or the Central Institute on the basis of the group tree or contractual agreement are sufficiently.

(5) the FMA has the criteria for the significance of a subordinate, associated or participating institution with regulation to set. She thereby according to international standards, in particular to the guidelines, recommendations, standards, and other measures adopted by the EBA.

Examination of the restructuring plan

8. (1) has the FMA to determine whether the restructuring plan contains all of the information referred to in article 6 and whether an employee application for content-related exceptions or a reduction in the level of detail is justified and assessed whether the recovery plan meets the requirements of paragraph 2. For this purpose, the FMA is to obtain an expert statement of the OeNB.

(2) who has to write a FMA, 1 whether the framework that determines the Auslöseereignis for rehabilitation measures comply with § 6 section 4 is equal to;

2. whether the restructuring plan sets appropriate conditions and procedures, so that remedial measures can be performed in a timely manner and whether is a wide range of remedial options available;

3. whether the restructuring plan included a selection of several appropriate scenarios such as, for example, financial crises of different degrees of severity, including system-wide events;

4. whether the actions proposed in the recovery plan are suitable, restore the viability and financial soundness of the Institute;

5. whether the restructuring plan without significant negative impact on the financial system effectively can be implemented in financial stress conditions, even if other institutions implement rehabilitation plans in the same period.

(3) the examination of a group restructuring plan has to take into account the requirements of § 7.

(4) required in the proposed rehabilitation plan changes, because this is flawed or because potential there are barriers to the implementation of the restructuring plan, has the FMA to place an improvement order the Institute within six months, is to meet within three months.

Measures for the removal of a

§ 9 comes an improvement order pursuant to § 8 para 4 not timely to an Institute or reaches the FMA when assessing improved restructuring plan concludes that fixed the shortcomings or potential obstacles in a reasonable manner, so the FMA may order one or more of the following measures the Institute: 1. reducing the risk profile of the Institute;

2. the timely feasibility of recapitalisation measures to ensure;

3. the financing strategy to change increasing the resilience of critical operations and core business area;

4. the governance structure to change.

Change request

§ 10. The FMA can apply changes the reorganization plan the Institute within a period that is reasonable in the circumstances, if this is necessary due to a substantial change of circumstances. The FMA is thereby not bound by exemptions granted pursuant to article 4 paragraph 3.

3 article: The settlement plan

Creation of compulsory settlement plan

§ 11 (1) has any institution as long as it is not part of a group to create a settlement plan, and to submit to the FMA. In a group, the parent Institute, the central organization or the Central Institute has to create a group settlement plan in accordance with section 14 and to submit to the FMA.

(2) the FMA has to check the submitted implementation plan pursuant to article 15. If necessary, it has the Institute in accordance with § 16 to improve to urge. AVG is § 13 para 3 apply accordingly.

(3) the Institute can be the reasoned request in the course of the submission of the settlement plan, to be taken out by individual content requirements or are subject to a reduced level of detail with respect to the submitted information.

(4) for the grant of an application under paragraph 3, the FMA that is carefully to take, what possible consequences due to insolvency of the Institute for financial markets, other institutions or financing conditions to worry about. While it has the size of the Institute to take into account its business model and its linkages with other institutions or the financial system in General.

(5) in any case, the Institute has annually to update its implementation plan. The FMA is entitled to request an upgrade at a shorter interval.

(6) the management plan is to update without delay and to submit the FMA, after a change in the legal or organizational structure of the Institute, its activities or its financial situation has taken place, if the change could impact significantly on the settlement plan. In this case, the FMA has again to consider the settlement plan in accordance with paragraph 2.

Principle of proportionality

12. (1) the FMA do without in accordance with par. 2 and 3 completely on the creation or updating of the management plan. The waiver is to pronounce the FMA with notice at the request of the Institute.

(2) a waiver of the creation or updating of the management plan is allowed only when in the case of the insolvency of an institution due to its size, its business model and its linkages with other institutions or the financial system in General, no significant adverse effects on the financial markets, other major institutions or financing conditions to worry about are.

(3) a waiver of the creation or updating of the management plan is not allowed, unless one of the circumstances referred to in no. 1 to 3: 1 the institution or group has one or more subsidiaries or major branch offices in another Member State or a third country;

2. the assets of the Institute or of the group exceeds EUR 5 billion; or 3. ratio of total assets of the Institute or of the group to the Austrian gross domestic product exceeding 3 VH.

(4) which has the FMA to obtain an expert statement of the OeNB on the existence of the requirements laid down in paragraph 2 in the proceedings referred to in paragraph 1.

(5) in the result of a change in the legal or organizational structure of the Institute, its activities or its financial situation, the Institute of the FMA has to show this without delay. The FMA has to check whether a waiver is still justified. This is not the case, the FMA has to create a settlement plan, immediately prompting the Institute.

Contents of the execution plan

Section 13 (1) in the settlement plan has the Institute to demonstrate how an orderly unwinding or restructuring of the Institute can be done.

(2) all persons involved in the management plan are obligated to strict confidentiality. The Institute has to take precautions to make sure that those employees who are involved with the settlement plan, are exposed to a conflict of interest.

(3) the settlement plan has to contain in particular the following information: 1. a summary of the main elements of the plan;

2. representation a summary of the significant changes occurred since submission of the last settlement plan of the Institute;

3.

Versions to like critical functions and core businesses legally and economically be separated to the extent necessary by other functions could ensure their continuation in the event of insolvency of the Institute;

4. an estimate of the time frame for the implementation of each essential element of the plan;

5. a detailed representation of the ability to unwind;

6. a description of any measures to reduce or to remove obstacles for the ability to unwind;

7. a description of the procedures for determining the value and marketability of the critical functions, the core business area and the assets of the institution;

8. a detailed description of the rules, which is to ensure that all details of the settlement plan up to date are and how new information of the FMA always available;

9 explanations of the Institute to do so, as the various processing options are funded could and not an extraordinary financial support; be assumed public

10. a detailed description of the different processing strategies of that could be applied in the context of the different scenarios.

11 understanding of critical interdependencies;

12. an analysis of the impact of the plan on other institutions within a group;

13. a description of the options for maintaining access to payment and clearing services and other infrastructure;

14. a plan for communication with media and the public;

15. a collection of essential personnel for the continuous maintenance of the operating capability of the Institute.

(4) Furthermore the information of annexed to article 13 in the settlement plan must be included.

Group management plan

Section 14 (1) which has 1 of the parent Institute, the central organization or the Central Institute, 2. the entire group and 3 for each major subsidiary, associated or participating institution to include a plan for the settlement group settlement plan.

(2) it is to explain how an orderly unwinding in terms of 1 the parent Institute, the central organization or the Central Institute, 2 to the group as a whole or 3 on an essential downstream, associated or participating institution of the group can be done. It is in particular to respond to group relevant implications.

(3) the Group settlement plan has to call measures that are required to facilitate a settlement at group level. This includes also the legal and economic spin-off of certain features or areas of the business.

(4) the Group settlement plan has the information referred to in section 13 both for 1 the parent Institute, the central organization or the Central Institute, 2. the whole group and 3 for each major subsidiary, associated or participating institution to contain.

(5) those parts of the Group settlement plan, regulating measures that would be to implement, by governing bodies of essential subsidiary, associated or participating institutions shall be approved prior to submission to the FMA by these management bodies, unless, of course, that the necessary for the implementation of the settlement plan penetration capabilities of the parent Institute, the central organization or the Central Institute on the basis of the group tree or contractual agreement are sufficiently.

(6) the FMA has the criteria for the significance of a subordinate, associated or participating institution with regulation to set. She thereby according to international standards, in particular to the guidelines, recommendations, standards, and other measures adopted by the EBA.

Examination of the settlement plan

Section 15 (1) the FMA has to consider whether the settlement plan contains all of the information referred to in article 13 and whether an employee application for content-related exceptions or a reduction in the level of detail is justified and has to assess whether the Institute referred to in paragraph 2 is processed. A group settlement plan has in addition to the requirements pursuant to § 14.

(2) an Institute is to consider if it appears feasible and credible, as processed that the Institute under the application of the provisions for business supervision and insolvency of credit institutions (§§ 81 ff BWG) to renovate, reorganize or liquidate without having this has significant negative effects on the financial systems in the context of a general financial instability or other system-wide events. The settlement plan has to offer the possibility that critical functions will be maintained.

(3) that has the FMA to obtain an expert statement of the OeNB on the existence of the requirements laid down in paragraph 2 in the proceedings referred to in paragraph 1.

Procedure for finding an obstacle for the ability to unwind

16. (1) the logical_test pursuant to § 15, potential key barriers to preclude the ability to unwind an institution, has the FMA to place an improvement order the Institute, which is to comply within a reasonable time determined by the FMA, which no longer than four months may be.

(2) an institution an improvement order referred to in paragraph 1 not timely comply with, or enters the FMA in the examination of the improved processing plan to the conclusion that you of unwinding ease obstacles in an appropriate manner were reduced or eliminated, the FMA has to order one or more of the measures referred to in article 17.

(3) the FMA may waive the arrangement of a measure referred to in paragraph 2, if this would be inappropriate according to the type of circumstance hindering the ability to unwind and making the ability to unwind can be expected within a deadline again set in accordance with paragraph 1.

Measures to tackle an obstacle for the ability to unwind

17. (1) the FMA can the Institute arranged: 1. concluded the service agreements within the group or with third parties through ensuring critical economic functions;

2. its maximum individual or aggregated exposure limit;

3. event-related or regular information requirements to comply with, that are relevant for settlement purposes;

4. certain assets to sell;

5. certain existing or planned activities to restrict or to refrain from;

6. the development of new businesses or products to limit or refrain from;

7. changes in the legal or operational structure of the Institute is to perform, in order to reduce the complexity and to ensure that critical functions can be separated from other functions legally and organisationally.

(2) the FMA can apply the parent company of the Institute, to set up a financial holding company.

(3) the FMA can apply the parent company or a financial holding company to issue subordinated debt or subordinated loans, which fulfil the conditions referred to in article 18.

(4) If a bank to a subsidiary of a joint holding company, the FMA can apply to build a separate financial holding company, insofar as this is necessary to facilitate a settlement of the Institute.

Minimum requirements for financial instruments

§ 18. The financial instruments in accordance with article 17, paragraph 3 have following requirements to meet: 1 the instruments are issued and fully paid up;

2. the instruments are not purchased by a) the institution or its subsidiaries or b) from a company in which the Institute directly or by way of control of a participation in the form of at least 20 vH of the voting rights or of the capital of the company holds.

3. the purchase of the instruments directly or indirectly funded by the Institute;

4. the instruments will not be by a company that belongs to the same group as the institution, secured or guaranteed;

5. the instruments have an original maturity of at least one year.

Change request

§ 19. Even after the granting of a permit according to § 11 the FMA can apply changes of the management plan the Institute within a period that is reasonable in the circumstances, if this is necessary due to a substantial change of circumstances. The FMA is bound not to exceptions granted in accordance with article 11 para. 3.

4 section: Supervision

Competent authorities

§ 20. The FMA has to monitor that the provisions of this Federal Act are held by institutions. She has to take into account the national economic interest in a functioning financial market and the financial market stability.

Cost determination

§ 21 institutions referred to in article 1 are charged. The allocation of costs of intervention and restructuring supervision has to be done Z within the accounting group 1 (for the cost of the banking supervisory authority) in accordance with article 19, paragraph 1 1 FMABG.

Procedural and penal provisions

Section 22 (1) who was responsible (§ 9 VStG) an institution breaches the obligation to create or update a restructuring or settlement plan, commits an administrative offence, unless the Act constitutes not a criminal offence falling within the jurisdiction of the courts and by the FMA to punish up to 150 000 euro fine.


(2) whoever was responsible (§ 9 VStG) an institution in a restructuring or settlement plan gives incorrect information, commits an administrative offence, unless the Act constitutes not a criminal offence falling within the jurisdiction of the courts and is the FMA with fines up to EUR 150 000 to punish.

(3) the financial penalties imposed by the FMA in accordance with this Federal Act accruing to the Federal Government.

5 article: Transitional and final provisions

References

section 23. As far as referenced in this Federal Act other federal laws, which if nothing else is arranged, to apply in their respectively valid version.

Linguistic equal treatment

§ 24. As far as this federal law are personal names only in the male form, they relate to women and men in the same way. When applied to certain persons, the respective gender-specific form is to use.

Enforcement

§ 25. The Federal Minister of finance is entrusted with the execution of this Federal Act.

Entry into force

section 26. This federal law shall enter into force 1 January 2014.

Transitional provisions

§ 27. After the entry into force of this federal law the following transitional provisions shall apply: 1 is this federal law do not apply to credit institutions, which are in liquidation, as well as credit institutions, for which according to § 2 para 2 Z 4 stability levy Act - StabAbgG, Federal Law Gazette I no. 111/2010 by the European Commission after the Union legislation and decisions on State aid in accordance with type 107 ff TFEU a settlement or restructuring plan has been approved , provided that the credit institution will be processed and no new business can be completed.

2. (to § 4 para 1) the initial delivery of the restructuring plan has to be carried out no later than 1 July 2015. If the balance sheet total of the Institute or of the group exceeds 30 billion euros, or if a direct financial support is provided by the European financial stability facility (EFSF) or the European stability mechanism (ESM), the initial delivery of the restructuring plan has to be 1 July 2014 at the latest.

3. (to § 11 para 1) the initial delivery of the settlement plan has to be made no later than 31 December 2015. If the balance sheet total of the Institute or of the group exceeds 30 billion euros, or if a direct financial support is provided by the EFSF or the ESM, the initial delivery of the settlement plan has to be 31 December 2014 at the latest.

In determining the balance sheet total referred to in Nos. 2 and 3 a group of credit institutions pursuant to § 30 BWG are those subordinate institutions not to include, which are provided for a settlement referred to in subpara 1 or restructuring plan on handling.