Accounting Control Act And Amendment Of The Financial Market Authority Act

Original Language Title: Rechnungslegungs-Kontrollgesetz sowie Änderung des Finanzmarktaufsichtsbehördengesetzes

Read the untranslated law here: http://www.ris.bka.gv.at/Dokumente/BgblAuth/BGBLA_2013_I_21/BGBLA_2013_I_21.html

21 federal law, which enacted a law of accounting control and changed the financial market supervisory authority Act

The National Council has decided:

Article 1

Federal law on the establishment of a test procedure for financial reporting by companies, whose securities (accounting control Act RL-KG) are admitted to trading on a regulated market

1 section: Authority

FMA

1. (1) the FMA is authority for compliance with accounting standards by companies, whose securities (companies) are admitted to trading on a regulated market in the country. She has to make an examination of accounting of an enterprise in accordance with the public interest in the accuracy of financial reporting or to order by the Review Board pursuant to section 3 para 3. The audit scope for the testing laboratory is to set in the test arrangement.

(2) the FMA has to create an annual inspection plan for tests pursuant to section 2 para 1 No. 2. She has set annual audit priorities and to make them public. The testing laboratory has proposals to reimburse the FMA for this purpose.

(3) the FMA has to take into account the completion of this Federal Act in the rules of procedure in accordance with article 6 FMABG.

Test subject

2. (1) the FMA has to examine whether the annual financial statements, management reports, consolidated financial statements and group management report and the other prescribed information referred to in section 81a para 1 No. 9 Austrian Stock Exchange Act 1989 - BörseG, BGBl. No. 555/1989, of companies comply with the national and international accounting standards. 1. when concrete evidence of a violation of accounting rules is working in accordance with the public interest;

2. no special occasion.

The FMA can use their duties appropriate third parties.

(2) a check has only to cover the annual accounts, provided no financial statements were compiled by the company. It includes established only last year and consolidated financial statements and the interim financial report of the previous and current fiscal year. You does not relate to the audit report of the statutory auditor. An examination has to be avoided, if a procedure according to § 201 or § 255 No. 98/1965, is pending AktG - German Stock Corporation Act, Federal Law Gazette or the test ff AktG would touch the subject of a special audit in accordance with the sections 130.

Audit work, unless you have a testing laboratory

3. (1) has the FMA, if a club as a testing in accordance with article 8, paragraph 1 is approved, then perform tests himself and if 1 the inspection body told her, that a company denied his involvement during a test or does not agree with the outcome of the examination, or 2 significant doubt on the accuracy of the test result of the inspection body or the proper conduct of the examination by the testing laboratory or 3 under the examination carried out by the FMA account of public interest in the accuracy of financial reporting respecting which is offered in article 18, paragraph 1 referred to AVG principles in individual cases.

(2) the limitations of the test item in section 2, paragraph 2 apply also to this audit work of the FMA. However, in cases covered by paragraph 1 Z may 1 and 2 also previously observed annual and consolidated financial statements and other information from the audit scope be includes if they have formed the subject of the examination of the inspection body or would have.

(3) in the case of the conduct of the examination, the FMA of the testing laboratory, as well as other appropriate organisations and individuals can enjoy. At the request of the FMA, the Review Board has to explain the result and the conduct of tests and to submit a report.

(4) If no inspection body pursuant to article 8, the FMA is in article 2, paragraph 1 anyway, even perform these tests, where she can use for which appropriate third parties.

Duty of companies and Auditors

4. (1) the company, the members of its organs, his employees, his company to be included in the consolidated financial statements, as well as its auditor have to submit the FMA and the people used by the FMA in carrying out their duties, to provide information and documents, as far as this is necessary for the test. The auditor information disclosure is limited to facts which have become known to them in the framework of the audit.

(2) the obligation provided for in paragraph 1 does not apply if the mentioned people themselves or a family member referred to in § 36a AVG would expose the risk of criminal prosecution. The FMA has the debtor about his right to refuse testimony (section 157 StPO) Entschlagungsrecht to teach. The template shall remain unaffected.

(3) the information and submission of documents referred to in paragraph 1 obliged to have the FMA staff or the persons responsible for it, insofar as this is necessary for the exercise of their functions, to allow access to their land and business premises during regular working hours.

Result of the test

§ 5 (1) evaluates the examination by the FMA, that the financial reporting is faulty, the FMA has the error with notice to determine.

(2) the FMA may in accordance with the public interest in the accuracy of financial reporting administrative decision order, that the company together with the error identified by the testing authority in agreement with the company or the FMA the essential parts of the grounds of determining pursuant to § 10 par. 3 Z 3 to 5 capital market law - KMG, BGBl. No. 625/1991 and notice in accordance with § 10 par. 4 KMG that has to make immediately. At the request of the company, the FMA can refrain from one arrangement after the first set when the publication is liable to harm the legitimate interests of the company.

(3) the examination by the FMA makes no objections, so the FMA shall inform the company.

Duty of disclosure

Section 6 (1) has the FMA facts that suggest the existence of a breach of professional duty by the statutory auditors, to report of the Chamber of Auditors. Facts that imply the existence of a breach of exchange rules, has to perceive them by virtue and to inform the Exchange operating company. The FMA has the Working Committee for external quality audits to inform in case of justified suspicion of the existence of significant defects in the quality assurance of an auditor. This has to inform the FMA as well as the quality control authority within four weeks, if and when a special inspection according to § 16 para 2 No. 3 audit quality assurance Act A-QSG, Federal Law Gazette I no. 84/2005, is carried out. In relation to the facts giving rise to the suspicion of a crime in connection with the accounting of an enterprise, a display within the meaning of § 78 can be avoided StPO in particular, if and so long a test procedure by the testing laboratory or the FMA that pending and no serious harm to the company or its creditors to fear; the notice of identified error pursuant to § 5 para 2 is considered Z for purposes of seeing the display anyway damage rectification measures pursuant to § 78 para 2 2 StPO.

(2) the suspicion that a transaction is money laundering or the financing of terrorism, is the FMA in its activities in accordance with this federal law, it has the Authority (§ 6 SPG) subject immediately to inform.

Data protection and international cooperation

Section 7 (1) of the FMA is the cooperation with institutions abroad, who are responsible for the investigation of possible violations of accounting rules by companies, whose securities on a regulated market or on a recognized stock exchange of a third country approved. In the framework of this cooperation a mutual information and data exchange can be done, as far as he is limited to the amount necessary for the cooperation and thus neither bank secrecy (§ 38 BWG) yet the tax legal obligation of secrecy (§ 48a BAO) are violated. The provision of information to an authority in a third country is also only permitted if there is a level of data protection according to European data protection rules in this country.

(2) the FMA may cooperate with the competent authorities of Member States of the European Union or parties to the agreement on the European economic area, to ensure a uniform enforcement of international accounting rules across borders. This can be also the wording of decisions these places available, which have made them or the testing authority in individual cases. The wording of the decisions must be available only in an anonymous form.

(3) the FMA is the testing laboratory of the international cooperation of the FMA pursuant to to inform paragraphs 1 and 2. The Department in turn is obliged to support the FMA in international cooperation.

2 part: Testing laboratory

Legal status, recognition and subject to audit


§ 8 (1) of the Federal Ministry of finance may after consultation with the Federal Minister of justice by ruling an independent, non-profit-making Association at whose request a testing for compliance with accounting standards by companies, whose securities are admitted to trading on a regulated market in the domestic (companies), acknowledge. Such a club has the name "Austrian Department for accounting" to lead and be bound in the exercise of his occupation on any instructions.

(2) an association may be recognised as a testing if the bylaws of this Association provide a sufficient guarantee for an expert, independent and confidential performance of the tasks of the Association and appropriate organizational arrangements for the audit work in a procedure are laid down. Any amendment of the statutes or the rules of procedure is approved by the Federal Minister for finance after consultation with the Federal Minister of Justice. Let moderate recognition can be temporary for a period by five years; a repeated recognition is allowed.

(3) people may not take on the conduct of the examination, which, especially relations of business, financial, or personal kind, reasons, which consists of partiality. People, which are one in § 271 par. 2-excluded from participation in any case Z 1, 2, 4, 5 or 7 of the company law book - UGB, Federal Law Gazette I no. 120/2005, referred to circumstances in the past three years located above is.

(4) the review board must inform the FMA by performing tests pursuant to § 2 para 1 subpara 1.

(5) the FMA may adopt guidelines on the testing activities to the Office after which they proceed has. The testing laboratory has proposals to reimburse the FMA for this purpose.

Ratio of the testing laboratory to companies

If the company is involved in a review by the review board, the legal representatives of the company are § 9 (1) and the other persons use the legal representatives of the participation is obliged to provide correct and complete information of the testing laboratory and to submit accurate and complete documents, unless the persons would expose themselves or a family member referred to in § 36a AVG so the threat of a criminal prosecution. The Review Board has the debtor about his right to teach. The template shall remain unaffected.

(2) the Review Board has to communicate the result of the audit the company. Examination reveals that the financial reporting is faulty, it must justify their decision and companies determine a reasonable opportunity to submit its observations to give, whether it agrees with the result of the inspection body.

Display, reporting obligations and liability of the testing laboratory

§ 10 (1) the Review Board has to report the FMA on: 1 the refusal of the company to participate in an examination, 2. the result of the test and about whether or not the company with the test results has agreed.

(2) the staff of the inspection body are bound to the diligent and impartial examination. The Department and its employees are working in the public interest in a reliable and consistent financial reporting on the capital market.

(3) the Review Board has the facts giving rise to the suspicion of a crime in connection with the accounting of a company, to report the FMA. She has facts giving rise to the suspicion of the existence of a breach of professional duty by the statutory auditors, to report of the Chamber of Auditors.

(4) for the damage inflicted by the inspection body, the Federal Government is liable according to the provisions of the official liability Act - AHG, BGBl. are those directly added to legal entities, which are subject to the inspection activity of the inspection body under this Federal Act No. 20/1949 damage within the meaning of this provision. The testing laboratory and its staff and institutions are not liable to the injured party.

(5) has the Federal Government made an injured the damage referred to in paragraph 4, it can demand from institutions or staff of the inspection body Radebe set according to the provisions of the AHG.

(6) the Review Board has the Federal in the Amtshaftungs - and Radebe set procedures according to par. 4 and 5 in every appropriate way to support. It has in particular all information and documents relating to the Amtshaftungs - or Radebe set procedures, to provide, as well as to ensure that the Federal Government can take the testing of those inspection activities throughout the knowledge and skills of the institutions and officials.

Obligation of secrecy

Employees of the inspection body may 11 (1) the facts known to them in their activities and findings, whose Geheimhaltung lies in the interest of a debtor under this Act or a third party, in particular business and trade secrets as well as personal data, unauthorized disclose or exploit, even if they no longer are in the service or terminates its activity is. This does not apply in the case of statutory reporting obligations. Messages to the fulfilment of the obligation according to § 10 represent no unauthorized disclosure or use.

Financing of the testing laboratory

12. (1) has the testing laboratory to create a business plan that is approved by the Federal Minister of Finance on the required funding for each subsequent calendar year. The estimated costs for the coming year be pre-financed by the individual companies by means of a fixed amount of EUR 7 500 per calendar year and dues of the members of the Association in the amount of EUR 10 000 per member per calendar year. An any remaining balance is pro rata to charge the companies according to their market capitalisation by the inspection body.

(2) the review board regardless of their actual income and expenditure as an association according to § 22 para 2 Associations Act 2002 - past, Federal Law Gazette I no. 66/2002.

Sanctions

13. (1) who deliberately violates article 4 of the FMA or contrary to section 9 of the testing laboratory information given incorrectly or incompletely or incorrectly or incompletely presented a document, commits an administrative offence and is to punish up to 100 000 euro fine by the FMA.

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

3 section: Transitional and final provisions

Linguistic equal treatment

§ 14. 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.

References and regulations

As far as referenced in this Federal Act other federal laws that are 15 (1) if nothing else is arranged, to apply in their respectively valid version.

Transitional provision

§ 16. The provisions of this Act shall apply for the first time to accounts and any other prescribed information of that business year, that ends after December 30, 2013. Organizational set-up and financing the inspection body measures I no. 21/2013 from the promulgation of the Federal Act Federal Law Gazette.

In force

§ 17. This federal law shall enter into force 1 July 2013.

Enforcement

§ 18. 1. with respect to section 8, paragraph 1 and 2 and § 12 of the Federal Minister of finance in agreement with the Federal Minister of Justice, 2nd is responsible with regard to the other provisions of the Federal Minister of finance with the execution of this Federal Act.

Evaluation

§ 19. The Federal Minister of Finance has to evaluate the accounting control law by 31 December 2015 at the latest.

Article 2

Amendment of the financial market Authority Act

The financial market Authority Act, Federal Law Gazette I no. 97/2001, as last amended by Federal Law Gazette I no. 97/2012, is amended as follows:

1 in § 2 para 3 is after the phrase "in the central counterparties full law ZGVG, Federal Law Gazette I no. 97/2012"the phrase", in the accounting control Act RL-KG, Federal Law Gazette I no. 21/2013," added.

2. the existing text of § 22c receives the sales designation (1). The following paragraph 2 is added:

"(2) he may request a review of the legality of the publication or Beauskunftung referred to in paragraph 1 in a administrative decision affected by the publication or Beauskunftung to be procedure by the FMA. The FMA has announced the initiation of such proceedings in the same way in this case to make. The illegality of the publication or Beauskunftung is found in the context of the review, which has FMA the publication or Beauskunftung right to make or to revoke either at the request of the person concerned, or to remove from the website. In proceedings before the courts of public law on suspensive effect attributed to a complaint against an administrative decision, which had made known pursuant to paragraph 1, so the FMA has known this in the same way to make. The publication or Beauskunftung is to set or to revoke either at the request of the person concerned, or to remove, if the notice is lifted from the website."


4. § 28 21 the following paragraph is added:

"(21) § 2 para. 3 and art. 22c in the version of Federal Law Gazette I no. 21/2013 with 1 July 2013 into force."

Fischer

Faymann