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

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160. Federal Law, which enacted the Banking Intervention and Restructuring Act, as well as the Banking Act and the Financial Market Supervisory Authority Act are amended

The National Council has decided:

table of contents

Article 1

Banking intervention and restructuring law

Article 2

Amendment of the Banking Act

Article 3

Amendment of the Financial Market Supervisory Authority Act

Article 1

The Banking Intervention and Restructuring Act (BIRG)

table of contents

Type/Clause

Object/Label

Article 1

The Banking Intervention and Restructuring Act (BIRG)

1. Section: General provisions

§ 1.

Scope

§ 2.

Exceptions

§ 3.

Definitions

2. Section: The Sanation Plan

§ 4.

Cremation Plan

§ 5.

Proportionality principle

§ 6.

Content of the refurbelling plan

§ 7.

Group Recovery Plan

§ 8.

Examination of the refurbelling plan

§ 9.

Measures for the elimination of a defect

§ 10.

Change Order

3. Section: The settlement plan

§ 11.

Obligation to create settlement plan

§ 12.

Proportionality principle

§ 13.

Content of the settlement plan

§ 14.

Group fulfillment plan

§ 15.

Audit of the settlement plan

§ 16.

Method in determining an obstacle for unwinding

§ 17.

Measures to remove an obstacle to unwinding

§ 18.

Minimum requirements for financial instruments

§ 19.

Change Order

4. Section: Supervision

§ 20.

Competent authorities

§ 21.

Cost Determination

§ 22.

Procedural and criminal provisions

Section 5: Transiting and closing provisions

§ 23.

References

§ 24.

Linguistic equality

§ 25.

Enforcement

§ 26.

entry into force

§ 27.

Transitional provisions

Annex to § 6

Annex to § 13

1. Section: General provisions

Scope

§ 1. This federal law is on credit institutions in accordance with § 1 Section 1 of the Banking Act-BWG, BGBl. No 532/1993, as well as financial holding companies in accordance with 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 136, 30.4.2004, p. No. 1 and § 2 Z 15 Financial Conglomerates Act-FKG, BGBl. I No 70/2004.

Exceptions

§ 2. This federal law is not applicable to the legal entities according to § 3 (1), (2) and (3) (1) to (5) and § 3 (4), (4a) and (7) BWG.

Definitions

§ 3. For the purposes of this Federal Act, the following definitions shall apply:

1.

Institute: any legal entity in accordance with § 1;

2.

Parent undertaking: a parent undertaking in accordance with Article 4 (1) (15) of Regulation (EU) No 575/2013;

3.

Subsidiary: a subsidiary undertaking in accordance with Article 4 (1) (16) of Regulation (EU) No 575/2013;

4.

Group: a group of credit institutions according to § 30 BWG, a credit institution group according to § 30a BWG or an institutional security system in accordance with Art. 113 (7) of Regulation (EU) No. 575/2013;

5.

Branch: a branch in accordance with Article 4 (1) (17) of Regulation (EU) No 575/2013;

6.

Financial contracts shall include the following contracts and agreements:

a)

Securities contracts, including:

aa)

contracts relating to the purchase, sale or gluing of a security, a group of securities or an index of securities;

bb)

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

cc)

a pension or reverse pension business with such a security, a set of securities or such an index of securities;

(b)

Commodity contracts, including:

aa)

contracts for the purchase, sale or purchase of a product, a product group or a commodity index for the purpose of future delivery;

bb)

an option on a commodity, a commodity group, or a commodity index;

cc)

a pension or reverse pension business with such goods, a category of goods or a commodity index;

(c)

Futures contracts (futures and Forwardcontracts), including contracts (other than contractions) relating to the purchase, sale or transfer of goods or other goods, services, rights or shares the price fixed at a future date;

(d)

Swap agreements, which include:

aa)

Interest rate swaps, options, futures or forwards; Kassa or other foreign exchange, precious metal or commodity trading arrangements; currencies; a share index or a share; a debt index or a debt; commodity indices or goods; weather; emissions or inflation;

bb)

Total return, credit rating or credit swaps,

cc)

all agreements or transactions that are under sublit. aa. or bb. , and are widely used in the swap or derivatives markets;

(e)

Framework agreements for the under the lit. a to e mentioned contracts or agreements;

7.

Critical functions: activities, services and business which are expected to be subject to shocks to the national economy or to financial markets in one or more Member States;

8.

Core business units: business units and related services, which represent an essential source of income, profits or franchise value for an institution.

2. Section: The Sanation Plan

Cremation Plan

§ 4. (1) Each institution shall, unless it is part of a group in accordance with § 3 Z 4, draw up a recovery plan and submit it to the Financial Market Supervisory Authority (FMA). In a group, the parent institute, the central organization or the central institute has to draw up a group training plan according to § 7 and to submit the FMA.

(2) The FMA has to examine the recovery plan submitted in accordance with § 8. In accordance with Section 8 (4), it may have to ask the Institute to improve it. Section 13 (3) General Administrative Procedure Act-AVG, BGBl. No 51/1991 is to be applied mutatily.

(3) The institution may, in the course of the submission of the recovery plan, submit the reasoned request to be exempted from individual requests for content or to reduce the level of detail in respect of the information to be submitted. are subject to

(4) In order to grant an application in accordance with paragraph 3, the FMA has to consider the possible consequences of the insolvency of the Institute for the financial markets, other institutions, or the financing conditions. In doing so, it has the size of the institute to take into account its business model and its linkages with other institutions or with the financial system in general.

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

(6) The recovery plan shall be updated immediately and submitted to the FMA after a change in the legal or organisational structure of the institution, its business activities or its financial position has taken place, if the change could have a significant impact on the recovery plan.

Proportionality principle

§ 5. (1) The FMA may, in accordance with paragraphs 2 and 3, completely renounce the preparation or updating of the remediation plan. The waiver must be made by the FMA with a decision on the basis of a reasoned request from the Institute.

(2) A waiver of the preparation or updating of the remediation plan shall be permitted only if, in the event of the insolvency of an institution, on the basis of its size, business model or its interrelationships with other institutions or with the Financial system in general, no significant negative effects on financial markets, other major institutions or financing conditions are to be feared.

(3) A waiver of the preparation or updating of the refurbelling plan shall not be permitted, provided that one of the circumstances is in accordance with Z 1 to 3:

1.

The institution or the group shall have one or more subsidiaries or major branches in another Member State or a third country;

2.

the balance sheet total of the institution or group exceeds five billion euros; or

3.

the ratio of the balance sheet total of the institute or the group to the Austrian gross domestic product exceeds 3 vH.

(4) The FMA has, in the procedure referred to in paragraph 1, to seek an expert opinion of the Oesterreichische Nationalbank (OeNB) on the existence of the requirements in accordance with paragraph 2.

(5) As a result of a change in the legal or organisational structure of the Institute, its business activities or its financial position, the Institute of FMA has to notify this immediately. The FMA has to examine whether a waiver is still justified. If this is not the case, the FMA must immediately call upon the Institute to draw up a recovery plan.

Content of the refurbelling plan

§ 6. (1) The Institute shall set out in the recovery plan the measures to be taken to restore the financial stability of the Institute if the financial situation deteriorates significantly.

(2) In the recovery plan, the information provided by the Annex to § 6 be included. The FMA can provide the institute with the inclusion of additional information. In addition, the FMA may apply to the Institute to conduct detailed records of financial contracts in which the Institute is involved.

(3) The recovery plan shall, in a framework, determine one or more triggering events in the presence of which remedial action is taken.

(4) The triggering event shall be expressed in the recovery plan in qualitative and quantitative indicators related to the risk-bearing capacity of the institution. The indicators must be forward-looking and easy to monitor. The FMA has to examine whether the Institute adequately monitors the occurrence of the triggering event.

(5) If a triggering event occurs, the Institute shall notify the FMA immediately.

(6) An institution may also take remedial measures if a triggering event is not present.

(7) The recovery plan must not be based on the possibility of exceptional financial support from public funds. However, in the recovery plan, it is necessary to analyse how and when an institution in a stress situation can apply for the use of central bank facilities and what could be used as security.

Group Recovery Plan

§ 7. (1) The group recovery plan has a recovery plan for

1.

the parent institution, the central organization, or the central institute,

2.

the whole group and

3.

for each of the main subordinated, associated or participating institutes

to be included.

(2) It should be stated how in a stresssituation the stabilisation of the group as a whole or of an institute of the group can be achieved.

(3) The group recovery plan shall have the information referred to in § 6 for:

1.

the parent institution, the central organization, or the central institute,

2.

the whole group and

3.

for each of the main subordinated, associated or participating institutes

to be included.

(4) Before submission to the FMA, any part of the grouping plan, which rules measures that would be implemented by managing bodies of essential subordinate, associated or participating institutions, shall be , unless the scope of the implementation of the recovery plan is that of the parent institution, the central organisation or the central institution, on the basis of the group structure or contractual agreement. are sufficient.

(5) The FMA has to determine the criteria for the materiality of a subordinated, associated or participating institution with a regulation. It has to comply with international standards, in particular in accordance with the guidelines, recommendations, standards and other measures adopted by the EBA.

Examination of the refurbelling plan

§ 8. (1) The FMA has to examine whether the recovery plan contains all the information referred to in § 6 and whether an employee request for substantive exceptions or a reduction in the degree of detailiation is justified and whether the recovery plan is the The requirements of paragraph 2 are met. To this end, the FMA has to obtain an expert statement from the OeNB.

(2) The FMA has to assess

1.

whether the framework concept, which determines the triggering event for refurbishment measures, complies with the requirements set out in Article 6 (4);

2.

whether the recovery plan establishes appropriate conditions and procedures so that the reorganisation measures can be carried out in good time and whether a wide range of rehabilitation options is available;

3.

whether the recovery plan takes into account a selection of different, appropriate scenarios, such as financial emergencies of varying degrees of severity, including system-wide events;

4.

whether the measures proposed in the recovery plan are capable of restoring the existence and financial soundness of the institution;

5.

whether the recovery plan can be effectively implemented without any significant negative impact on the financial system in a financial stress situation, even if other institutions implement recovery plans in the same period.

(3) The examination of a group recovery plan shall also take into account the requirements of § 7.

(4) If changes are necessary in the recovery plan submitted, either because of the deficiencies or because the implementation of the recovery plan is in conflict with potential obstacles, the FMA has, within six months, of an improvement order to the Institute. , to be complied with within three months.

Measures for the elimination of a defect

§ 9. If an institution does not comply with a request for improvement in accordance with Section 8 (4), or if the FMA reaches the conclusion that the deficiencies or potential obstacles are not adequately met, the FMA shall, in the examination of the improved recovery plan, fail to comply adequately with the requirements of the , the FMA may order one or more of the following measures to the Institute:

1.

the reduction of the risk profile of the Institute;

2.

to ensure the timely feasibility of recapitalisation measures;

3.

to change the financing strategy to increase the resilience of core business areas and critical operations;

4.

to change the governance structure.

Change Order

§ 10. The FMA may apply amendments to the restructuring plan to the Institute within a reasonable period of time, if this is necessary on the basis of a substantial change in the circumstances. The FMA is not bound by exceptions granted in accordance with Section 4 (3).

3. Section: The settlement plan

Obligation to create settlement plan

§ 11. (1) Each institution shall, where it is not part of a group, draw up a settlement plan and shall submit it to the FMA. In a group, the parent institute, the central organization or the central institute has to draw up a group settlement plan according to § 14 and to submit the FMA.

(2) The FMA has to examine the submitted settlement plan in accordance with § 15. If necessary, it shall require the institution to improve it in accordance with § 16. Section 13 (3) of the AVG is to be applied in a sense.

(3) The institution may, in the course of the submission of the settlement plan, submit the reasoned request to be exempted from individual requests for content or to a reduced level of detail in respect of the information to be submitted. are subject to

(4) In order to grant an application in accordance with paragraph 3, the FMA has to consider the possible consequences of the insolvency of the Institute for the financial markets, other institutions, or the financing conditions. In doing so, it has to take into account the size of the institute, its business model and its linkages with other institutions or with the financial system in general.

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

(6) The settlement plan shall be updated immediately and submitted to the FMA after a change in the legal or organisational structure of the institution, its business activities or its financial position has taken place, if the change is likely to have a significant impact on the settlement plan. In this case, the FMA has to re-examine the settlement plan in accordance with paragraph 2.

Proportionality principle

§ 12. (1) The FMA may dispense entirely with the preparation or updating of the settlement plan in accordance with para. 2 and 3. The waiver must be made by the FMA with a communication at the request of the institute.

(2) A waiver of the preparation or updating of the settlement plan shall be permitted only if, in the event of the insolvency of an institution, on the basis of its size, business model or its interrelationships with other institutions or with the Financial system in general, no significant negative effects on financial markets, other major institutions or financing conditions are to be feared.

(3) A waiver of the preparation or updating of the settlement plan shall not be permitted, provided that one of the circumstances is in accordance with Z 1 to 3:

1.

The institution or the group shall have one or more subsidiaries or major branches in another Member State or a third country;

2.

the balance sheet total of the institution or group exceeds five billion euros; or

3.

the ratio of the balance sheet total of the institute or the group to the Austrian gross domestic product exceeds 3 vH.

(4) The FMA has, in the procedure referred to in paragraph 1, to seek an expert opinion of the OeNB on the existence of the requirements in accordance with paragraph 2.

(5) As a result of a change in the legal or organisational structure of the Institute, its business activities or its financial position, the Institute of FMA has to notify this immediately. The FMA has to examine whether a waiver is still justified. If this is not the case, the FMA shall immediately call upon the Institute to draw up a settlement plan.

Content of the settlement plan

§ 13. (1) The institution shall set out in the settlement plan how an orderly winding-up or restructuring of the institute can take place.

(2) All persons involved in the settlement plan shall be bound by strict secrecy. The Institute shall make appropriate arrangements to ensure that those employees who are involved in the settlement plan are not subject to conflicts of interest.

(3) The settlement plan shall contain, in particular, the following information:

1.

a summary of the main elements of the plan;

2.

a summary of the major changes that have occurred within the institute since the last settlement plan was presented;

3.

to specify how critical functions and core business areas could be legally and economically separated from other functions to the required extent in order to ensure their continuation in the event of the insolvency of the Institute;

4.

an estimate of the time-frame for the implementation of each substantial part of the plan;

5.

a detailed description of the unwinding capacity;

6.

a description of any measures to be taken to remove or remove obstacles to unwinding;

7.

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

8.

a detailed description of the rules to ensure that all information on the settlement plan is up-to-date and how new information from the FMA is available at all times;

9.

a presentation by the Institute on how the various resolution options could be financed, without the possibility of exceptional financial support from public funds;

10.

a detailed description of the different resolution strategies, which could be applied in the context of the different conceivable scenarios;

11.

Explanations 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 the media and the public;

15.

a list of the indispensable personnel for the continuous maintenance of the Institute's operational capacity.

(4) The information provided by the Annex to § 13 be included in the settlement plan.

Group fulfillment plan

§ 14. (1) The group settlement plan has a plan for the settlement

1.

the parent institution, the central body, or the central institution,

2.

the whole group and

3.

for each of the main subordinated, associated or participating institutes

to be included.

(2) It should be stated how an orderly settlement in relation to

1.

to the parent institution, the central organization or the central institute,

2.

to the group as a whole or

3.

to an essential parent, associated or participating institution of the Group

may take place. In particular, it should be based on the relevant implications of the group.

(3) The group resolution plan shall specify measures which are necessary to facilitate the processing at the group level. This also includes the legal and economic outsourcing of certain functions or business areas.

(4) The group settlement plan shall have the information referred to in § 13 for:

1.

the parent institution, the central organization, or the central institute,

2.

the whole group and

3.

for each of the main subordinated, associated or participating institutes

to be included.

(5) In the case of the FMA, those parts of the group settlement plan that govern measures that would be implemented by management bodies of major, associated or participating institutions shall be submitted to the FMA by these managing bodies. , unless the scope of the implementation of the settlement plan is that of the parent institution, the central organisation or the central institution, on the basis of the group structure or contractual agreement. are sufficient.

(6) The FMA has to lay down the criteria for the materiality of a subordinated, associated or participating institution with a regulation. It has to comply with international standards, in particular in accordance with the guidelines, recommendations, standards and other measures adopted by the EBA.

Audit of the settlement plan

§ 15. (1) The FMA has to examine whether the settlement plan contains all the information referred to in § 13 and whether an submitted request for substantive exceptions or a reduction of the degree of detailiation is justified and has to assess whether the institute is is unwindable in accordance with paragraph 2. In addition, a group settlement plan shall meet the requirements of § 14.

(2) An institution shall be deemed to be unwinding if it appears feasible and is credible that the Institute shall reorganize, reorganize or reorganize by applying the provisions on business supervision and insolvency of credit institutions (§ § 81 ff BWG); or liquidate, without this having a significant negative impact on financial systems in the context of a general financial instability or other systemic events. The settlement plan must provide the opportunity for critical functions to be maintained.

(3) In the proceedings referred to in paragraph 1, the FMA has to obtain a legal statement from the OeNB on the existence of the requirements of paragraph 2.

Method in determining an obstacle for unwinding

§ 16. (1) The FMA shall give an improvement order to the Institute, within a reasonable period determined by the FMA, in accordance with § 15 that the unwinding capacity of an institution is contrary to potential significant obstacles. which may be four months at the latest.

(2) If an institution does not comply with an order for improvement in accordance with paragraph 1, the FMA shall, when examining the improved settlement plan, arrive at the conclusion that the obstacles to unwinding are not in place in the , the FMA has to order one or more of the measures referred to in § 17.

(3) The FMA may disregard the arrangement of a measure in accordance with paragraph 2 if it is inappropriate in the manner of the unwinding capacity and the production of the unwindability within a renewed period as referred to in paragraph 1. can be expected.

Measures to remove an obstacle to unwinding

§ 17. (1) The FMA may order the institute:

1.

to conclude service agreements within the group or with third parties on the guarantee of critical economic functions;

2.

limit its maximum individual or aggregated risk positions;

3.

to comply with, or regular, information requirements relevant for settlement purposes;

4.

to sell certain assets;

5.

to restrict or refrain from certain existing or planned activities;

6.

Restrict or refrain from developing new business areas or products;

7.

To make changes in the legal or operational structure of the institute in order to reduce complexity and to ensure that critical functions can be separated legally and organizationally from other functions.

(2) The FMA may apply to the parent company of the Institute to establish a parent financial holding company.

(3) The FMA may apply to the parent undertaking or a financial holding company, to issue subordinated debt or subordinated loans which fulfil the conditions laid down in § 18.

(4) Where an institution is a subsidiary of a mixed holding company, the FMA may apply to establish a separate financial holding company, to the extent that this is necessary in order to ensure that the institution is liquidated. .

Minimum requirements for financial instruments

§ 18. The financial instruments referred to in § 17 (3) shall fulfil the following conditions:

1.

the instruments are issued and paid in full;

2.

the instruments are not acquired by

a)

the institution or its subsidiary, or

b)

by an undertaking in which the institution holds, directly or by way of control, a holding in the form of at least 20 vH of the voting rights or the capital of the undertaking;

3.

the acquisition of the instruments shall not be financed directly or indirectly by the institution;

4.

the instruments shall not be backed up or guaranteed by a company belonging to the same group as the institution concerned;

5.

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

Change Order

§ 19. Even after the granting of an authorization in accordance with § 11, the FMA may apply to the Institute any changes to the settlement plan within a reasonable period of time, if this is due to a substantial change in the conditions of the agreement. is required. The FMA is not bound by exceptions granted in accordance with Section 11 (3).

4. Section: Supervision

Competent authorities

§ 20. The FMA has to monitor that the provisions of this federal law are complied with by institutes. It has to take into account the economic interest in a functioning financial market and the stability of the financial markets.

Cost Determination

§ 21. Institutions according to § 1 are subject to a charge. The allocation of the costs of the intervention and restructuring supervision must be carried out within the accounting circuit 1 (for the costs of banking supervision) in accordance with § 19 (1) Z 1 FMABG.

Procedural and criminal provisions

§ 22. (1) Anyone who, as the person responsible (§ 9 VStG) of an institute, violates the obligation to create or update a reorganization or settlement plan, unless the facts do not fall within the competence of the courts. Constitutes a criminal offence and is punishable by the FMA with a fine of up to 150 000 euros.

(2) If the person in charge (§ 9 VStG) of an institute makes inaccurate statements in a restructuring or settlement plan, if the crime does not constitute the offence of a criminal act falling within the jurisdiction of the courts, a Administrative surrender and is punishable by the FMA with a fine of up to 150 000 euros.

(3) The fines imposed by the FMA pursuant to this Federal Act shall be paid to the Federal Government.

Section 5: Transiting and closing provisions

References

§ 23. Insofar as other federal laws are referred to in this Federal Act, these are to be applied, if nothing else, in their respectively valid version.

Linguistic equality

§ 24. Insofar as personal names are only mentioned in male form in this federal law, they refer to women and men in the same way. The gender-specific form is to be used in the application to certain persons.

Enforcement

§ 25. The Federal Minister of Finance is responsible for the enforcement of this federal law.

entry into force

§ 26. This federal law comes with 1. Jänner 2014 in force.

Transitional provisions

§ 27. Following the entry into force of this Federal Act, the following transitional provisions shall apply:

1.

This federal law is not applicable to credit institutions that are in liquidation, as well as to credit institutions for which, according to § 2 para. 2 Z 4 Stability Procurement Act-StabAbgG, BGBl. I No 111/2010, a settlement or restructuring plan has been approved by the European Commission in accordance with EU rules and decisions on State aid pursuant to Article 107 et seq. of the TFEU, provided that the credit institution is unwound and will not be allowed to complete a new business.

2.

(to § 4 (1))

The first transmission of the refurbelling plan must be carried out by 1 July 2015 at the latest. If the balance sheet total of the institution or group exceeds 30 billion euros or if direct financial support is provided by the European Financial Stability Facility (EFSF) or the European Stability Mechanism (ESM), the first-time transmission of the recovery plan must be made by 1 July 2014 at the latest.

3.

(to § 11 (1))

The first transmission of the settlement plan shall be effected by 31 December 2015 at the latest. If the balance sheet total of the institution or group exceeds EUR 30 billion, or if direct financial support is provided by the EFSF or the ESM, the initial transmission of the settlement plan shall be 31 December 2014 at the latest. shall be made.

In the determination of the balance sheet total of a credit institution group referred to in Z 2 and 3 in accordance with Section 30 of the Federal Elections Act, those subordinated institutions shall not be included, which shall be wound up in accordance with a settlement plan or restructuring plan referred to in Z 1. .