97. Federal law, with the issued a federal law on the effect be of Regulation (EU) No. 648/2012 on OTC derivatives, central counterparties and trade repositories (central counterparties Enforcement Act ZGVG) as well as the financial market supervisory authority Act and the finality Act be changed
The National Council has decided:
Federal law on the effect be of Regulation (EU) No. 648/2012 on OTC derivatives, central counterparties and trade repositories (central counterparties Enforcement Act ZGVG)
Table of contents
Purpose of this law
Support in the European supervision of transaction register
Rules of procedure and publication
Linguistic equal treatment
References purpose this law
§ 1. This federal law is the effect be of Regulation (EU) No. 648/2012 on OTC derivatives, central counterparties and trade repositories, OJ No. L 201 of the 27.07.2012 p. 1.
2. (1) the FMA is the authority responsible for Austria in accordance with article 10 paragraph 5 and article 22 paragraph 1 of the Regulation (EU) No. 648/2012 and is without prejudice to the tasks assigned to it in other federal laws which the competent authorities pursuant to article 10 paragraph 5 and article 22 para 1 of the Regulation (EU) No. 648 / 2012 tasks coming to and powers and compliance with the provisions of this Federal Act and the Regulation (EU) No 648 / 2012 to monitor.
(2) the FMA and the OeNB cooperate closely to effectively fulfill of their respective tasks in accordance with this federal law. § 79 para 1 to 4a, 4B Nos. 4 and para 5 BWG (Austrian Banking Act), Federal Law Gazette is no. 532/1993, with the proviso to apply that which apply there controlled tasks of the Austrian National Bank for the area of banking supervision for the purposes of this federal law regarding the supervision of central counterparties.
(3) the tasks, rights and obligations of the Austrian National Bank in the area of payment system supervision according to § 44a of the National Bank Act (NBA), Federal Law Gazette 1984. No. 50/1984, remain unaffected by the provisions of this Federal Act.
3. (1) is the FMA within the framework of the monitoring of compliance with the provisions of this Federal Act and no. 648/2012 by central counterparties without prejudice to the powers their provisions bundesgesetzlicher on the basis of other at any time entitled the Regulation (EU): 1 in the books, to inspect documents and data carriers of central counterparties and obtaining copies of them;
2. of central counterparties and their organs to request information and to summon persons in accordance with the administrative procedure laws and to consult;
3 by auditors and audit firms or by other experts on spot checks carried out;
4. the Austrian National Bank with the inspection of central counterparties to hire; the competence of the Austrian National Bank to of site inspections in the area of supervision of central counterparties extends this comprehensive examination of all business areas and all types of risk; the Austrian National Bank has to ensure that it has sufficient human and organizational resources to carry out the above checks; the FMA is entitled to its own employees take part in tests of the Austrian National Bank;
5. of central counterparties to request existing records of telephone calls and data transmission;
6. from the statutory auditors of central counterparties to obtain information;
7. the suspected of criminal acts in accordance with section 78 of the code of criminal procedure (StPO) 1975 to display BGBl. No. 631/1975, public prosecutor's Office or security authority.
(2) in the case of an examination referred to in paragraph 1 Nos. 3 and 4, shall be provided to the audit organs with a written audit and have to identify themselves without being asked before the exam begins, as well as to present the audit engagement. In addition, section 71 shall apply BWG. With regard to the cooperation of the FMA with the Austrian National Bank and carry out tests by these sections are the 70 para 1 to 4a para 1a to 1 c and 79, apply 4 b Z 4 and para 5 BWG.
(3) in order to avert a threat to the fulfilment of obligations a central counterparty clearing members and customers the FMA can order temporary measures by ruling that occur no later than 18 months after the start of effective override. The FMA may by decision in particular 1 capital and profit withdrawals as well as capital and profit distributions fully or partially prohibit;
2. a competent supervisor (Government Commissioner) order that belongs to the profession of lawyers or the auditor; has the supervisory person, is entitled to all rights pursuant to § 3 para 1) this legal entity all local businesses to prohibit, which are likely to increase the risk of above, or
(b) in the event that the continuation of the business is wholly or partly prohibited legal entity was to allow individual transactions which do not increase the risk of the above;
3. wholly or partially prohibit managers of the legal entity under simultaneous understanding of the organ competent to order the General Manager the management of the company; the competent body shall have within a month to order the appropriate number of business managers; the order to their legal validity of the consent the FMA that is to fail, when the newly appointed Managing Director seem not to be able to bring about a turning away of the above risk;
4. the continuation of business activities entirely or partially prohibit.
(4) the FMA may request which supervisor (Government Commissioner) ordered Z 2 or paragraph 5 order a Deputy in accordance with paragraph 3, if and as long as this is necessary for important reasons, in particular because of temporary prevention of the Invigilator,. For the order of the Deputy as well as its rights and obligations the provisions applicable to the Invigilator shall apply. The Invigilator (Government Commissioner) can serve their duties professionally suitable persons with approval of the FMA to meet as far as this is necessary to scope and difficulty of the tasks. The approval of the FMA has to call these individuals by name and is to deliver also the legal entity. These persons acting under the direction and on behalf of the supervisor (Commissioner of the Government) or their Deputy.
(5) the FMA by the Austrian day of Chamber of lawyers, and by the Chamber of Auditors gather messages about appropriate government Commissioners. A Government Commissioner is no. 2 or a Deputy according to para 3 to section 4 to order and no order on the basis of these messages is possible, the FMA has to notify the Bar Association competent under the law carrier or the Board of Auditors, so make this call a professionally appropriate lawyer or accountant as a Government Commissioner. In imminent danger, the FMA 1 may appoint a lawyer or 2. an auditor for the time being as a Government Commissioner. This order occurs after the first set aside with the appointment of a lawyer or accountant.
(6) the Commissioner of the Government to provide compensation (feature fee) that is in a reasonable proportion to the work associated with the supervision and the expenses for this purpose by the FMA. The Commissioner of the Government is entitled to the accounting on the preceding each quarter, as well as after his occupation. The FMA has to make the payment immediately after invoice verification.
(7) notices that the leadership of a central counterparty wholly or in part is prohibited from business managers (para 3 Z 3 and para 8), are, as also any repeal this measure to submit the registration Court for registration in the commercial register by the FMA.
(8) a central counterparty violated provisions of this Federal Act or regulation (EU) No. 648/2012 as the FMA 1 the central counterparty under threat of a coercive penalty can apply, to establish the lawful conditions within that period of time that is reasonable in regard to the circumstances of the case;
2. in the repeat or where the business leaders of the central counterparty management prohibit, wholly or partially except that this would be inappropriate according to type and severity of the violation, and the restoration of the lawful condition can be expected again approach in accordance with no. 1; in this case is the first compulsory sentence to understand and the job under threat of a higher penalty of forced to repeat.
(9) No 648 / 2012 apply with depositing at the FMA without previous delivery attempt notices in proceedings under the Regulation (EU) as adopted in the Regulation (EU) No. 648/2012. The addressees of the decision the deadlines the General administrative procedures according to linked to the delivery and the rules of the delivery Act, Federal Law Gazette remain with no. 200/1982, untouched.
Support in the European supervision of transaction register
§ 4. The FMA supports the European Securities and markets authority (European Securities and markets authority (ESMA), and their representatives in accordance with the provisions of the Regulation (EU) No. 648/2012. The FMA can take I no 97/2001, claim also aid in accordance with article 21, paragraph 1, 2 and 4 of the financial market Authority Act (FMABG), Federal Law Gazette.
5. (1) the costs incurred by the FMA from her occupation as the competent authority of the Member State of origin are costs of the accounting group securities (§ 19 para 1 Nos. 3 and para 4 FMABG) and from those central counterparties for which the FMA performs functions as the competent authority of the Member State of origin, and reimburse their clearing members. The FMA has to do this, in addition to the in article 90, paragraph 1, of the securities supervision Act 2007 (WAG 2007), Federal Law Gazette I no. 60/2007, to make an additional sub accounting group for central counterparties and their clearing members provided sub accounting groups in the accounting group securities.
(2) the amounts relating to the fee referred to in paragraph 1 are to prescribe the FMA decision; the setting of fixed amounts is permitted. The FMA has more rules about the distribution of these costs and their notices of payment due by regulation to set. This is to regulate in particular: 1. the bases of each type of cost statements;
2. the dates for the cost assessments and the periods for payment of the fee.
With the enactment of regulations made pursuant to Nos. 1 and 2, carefully on the Sub accounting group for central counterparties on the extent of the clearing service provided and on the Sub accounting group for clearing members is on their proportion to the services of the clearing to take. The central counterparties have to furnish all necessary information about the basics of calculating costs of the FMA.
6. (1) who was responsible (§ 9 of the administrative penal code 1991 - VStG, Federal Law Gazette No. 52/1991) provisions of this Federal Act or regulation (EU) No. 648/2012 violates a central counterparty, a financial counterparty or a non-financial counterparty, or if clearing services without the required authorisation according to para 1 No. 648/2012 providing Regulation (EU), article 14 commits an administrative offence and is to be punished by a fine of up to EUR 150 000 by the FMA.
(2) for the prosecution of the offences referred to in paragraph 1, the FMA without prejudice to the application of § 3 para 1-led powers exercised b FMABG in section 22 May.
(3) the FMA regularly publish reports on the assessment of the effectiveness of the criminal provisions of this Act. While the use of personal data in accordance with § 4 has to no. 1 of the data protection Act (DSG 2000), Federal Law Gazette I no. 165/1999, be avoided.
Rules of procedure and publication
Section 7 (1) for the imposition of administrative penalties pursuant to § 6 para 1 is responsible in the first instance the FMA.
(2) in the case of administrative penal proceedings in accordance with article 6, paragraph 1, a limitation period of 18 months applies VStG instead of the limitation period of § 31 para 2 of six months.
(3) for the enforcement of a permit according to this Federal Act or regulation (EU) No. 648/2012 takes the place of the to § 5 section 3 of the administrative enforcement Act 1991 (VVG), Federal Law Gazette No. 53/1991, provided the amount the sum of EUR 30 000.
(4) the FMA may by their measures taken according to § 3, para. 3, 5 and 8, as well as penalties pursuant to section 6 para 1 by proclamation in the Internet, print in the "Amtsblatt zur Wiener Zeitung" or make known in a newspaper with circulation in the entire Federal territory. Publications of measures or sanctions may be made only if this is necessary and proportionate in terms of possible disadvantages of the person concerned to the type and severity of the violation to the public. Sanctions for violations of articles 4, 5 and 7 until 11 of the Regulation (EU) No. are 648/2012 to announce, unless such a disclosure would the stability of financial markets significantly jeopardize, or inflict disproportionate harm those involved. This publication measures may be taken also cumulatively. The use of personal data in accordance with § 4 Z 1 DSG 2000 has the publication of sanctions for violations of article 4, to be avoided 5 and 7 to 11 of Regulation (EU) No. 648/2012.
(5) he can apply for a review of the legality of the publication referred to in paragraph 4 in one administrative decision affected by the publication to be procedure by the FMA. The FMA has announced the initiation of such proceedings in the same way in this case to make. Is the illegality of the publication is determined in the context of the review, the FMA has the publication to set 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 4, so the FMA has known this in the same way to make. The publication 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.
§ 8. The FMA has in accordance with article 32 para. 4 of Regulation (EU) No. 648/2012 by regulation to assess what information as part of a display in accordance with article 31 are to transmit paragraph 2 of Regulation (EU) No. 648/2012 to the FMA.
Linguistic equal treatment
§ 9. 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.
§ 10. The Federal Minister of finance is entrusted with the execution of this Federal Act.
§ 11. As far as other federal laws are referenced in this Federal Act, these are to apply in their up-to-date version.
Amendment of the financial market Authority Act
The financial market Authority Act (FMABG), Federal Law Gazette I no. 97/2001, as last amended by Federal Law Gazette I no. 145/2011, is amended as follows:
1 in § 2 para 3 is after the phrase "rating agency enforcement Act - RAVG, Federal Law Gazette I no. 68/2010" the phrase ", in the central counterparties full law ZGVG, Federal Law Gazette I no. 97/2012," inserted.
2. in section 19 subsection 4 last set is after the phrase "of the E money law 2010" the phrase ", the ZGVG" inserted.
Amendment of the Act of finality
The finality Act, Federal Law Gazette I No 123/1999, as last amended by Federal Law Gazette I. No. 145/2011, is amended as follows:
In article 17 the following sentence is inserted after the second sentence: "a system operator made a security another system operator within an interoperable system, the rights of the system operator the security on this security by insolvency proceedings against the system operator receiving the security are not affected."