Central Counterparties Full Law Zgvg As Well As Change Of The Financial Market Authority Act And The Settlement Finality Law

Original Language Title: Zentrale Gegenparteien-Vollzugsgesetz - ZGVG sowie Änderung des Finanzmarktaufsichtsbehördengesetzes und des Finalitätsgesetzes

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Federal law, which enacted a federal law on the effective application of Regulation (EU) No 648/2012 on OTC derivatives, central counterparties and trade repositories (central counterparty law enforcement law-ZGVG), as well as the The Financial Market Supervisory Authority Act and the Finality Act are amended

The National Council has decided:

Article 1

Federal law on the effective implementation of Regulation (EU) No. 648/2012 on OTC derivatives, central counterparties and trade repositories (central counterparty law enforcement law-ZGVG)

table of contents

§ 1.

Purpose of this Act

§ 2.

Competent authority

§ 3.

Supervision

§ 4.

Support for European supervision of trade repositories

§ 5.

Cost

§ 6.

Criminal provisions

§ 7.

Procedural rules and publication

§ 8.

Qualifying holdings

§ 9.

Linguistic equality

§ 10.

Enforcement

§ 11.

References

Purpose of this Act

§ 1. This federal law is used for the effective implementation of Regulation (EU) No 648/2012 on OTC derivatives, central counterparties and trade repositories, OJ L 124, 20.6.2012, p. No. OJ L 201 of 27.07.2012 p. 1.

Competent authority

§ 2. (1) The FMA is the competent authority for Austria pursuant to Art. 10 (5) and Article 22 (1) of Regulation (EU) No 648/2012 and, without prejudice to the tasks assigned to it in other federal laws, takes the responsibility of the competent authorities in accordance with Art. 10 (5) and Article 22 (1) of Regulation (EU) No 648/2012, and has to monitor compliance with the provisions of this Federal Law and of Regulation (EU) No 648/2012.

(2) The FMA and the Oesterreichische Nationalbank shall cooperate closely in order to carry out their respective duties effectively in accordance with the provisions of this Federal Act. Section 79 (1) to (4a), 4b (4) and (5) of the Banking Act (BWG), Federal Law Gazette (BGBl). 532/1993, is subject to the proviso that the tasks of the Oesterreichische Nationalbank for the purposes of this federal law governing the supervision of central counterparties are to be applied to the tasks of the Oesterreichische Nationalbank for the area of banking supervision.

(3) The tasks, rights and obligations of the Oesterreichische Nationalbank in the area of payment system supervision in accordance with Section 44a of the National Bank Act 1984 (NBG), BGBl. No. 50/1984, remain unaffected by the provisions of this Federal Law.

Supervision

§ 3. (1) The FMA is in the context of monitoring compliance with the provisions of this Federal Law and Regulation (EU) No 648/2012 by central counterparties without prejudice to the powers conferred on it by other federal legislation at any time:

1.

to inspect the books, records and media of central counterparties and to obtain copies of them;

2.

to request information from central counterparties and their institutions and to preload and interview persons in accordance with the administrative procedure laws;

3.

to carry out on-the-spot audits by auditors and audit firms or by other experts;

4.

Commission the Oesterreichische Nationalbank with the examination of central counterparties; the competence of the Oesterreichische Nationalbank for the on-the-spot audit in the area of oversight of central counterparties extends comprehensively to the Audit of all business areas and all types of risk; the Oesterreichische Nationalbank has to ensure that it has sufficient human and organisational resources to carry out the above-mentioned audits; the FMA is entitled to: Own staff in examinations of the Oesterreichische Nationalbank be allowed to participate;

5.

to request existing records of telephone calls and data transfers from central counterparties;

6.

obtain information from the auditor of central counterparties;

7.

the suspicion of criminal acts in accordance with Section 78 of the Criminal Procedure Code 1975 (StPO), Federal Law Gazette (BGBl). No 631/1975, a public prosecutor's office or a safety authority.

(2) In the case of an examination in accordance with Section 1 (3) and (4), the examination bodies must be provided with a written examination order and have to show unsolicly before the start of the examination, as well as to show the examination order. § 71 of the Federal Elections Act is also to be applied. With regard to the cooperation of the FMA with the Oesterreichische Nationalbank and the taking of exams by these, § § 70 (1a) to (1c) and 79 (1) to (4a), 4b (4) and (5) of the BWG are to be applied.

(3) In order to avoid a risk for the fulfilment of the obligations of a central counterparty to clearing members and customers, the FMA may order temporary measures, which are not later than 18 months after the date of the effective date of the effective date of the Force. The FMA may, in particular,

1.

prohibit in whole or in part capital and profit-making, capital and profit distributions;

2.

appoint a competent supervisory body (government commissioner) who is a member of the profession of lawyers or auditors; the supervising person, who is responsible for all the rights in accordance with Section 3 (1), has

a)

prohibit all transactions that are likely to increase the above risk, or

b)

in the event that the legal entity has been banned in whole or in part from the continuation of the business, to allow individual transactions which do not increase the risk above;

3.

Directors of the legal entity, subject to the simultaneous understanding of the institution responsible for appointment of the directors, shall prohibit in whole or in part the management of the undertaking; the competent institution shall have, within one month, the appropriate management of the undertaking. The number of managers to be reordered; the order shall be subject to the legal validity of the consent of the FMA, which is to be refused if the newly appointed managers do not seem likely to cause a waste of the above risk. ,

4.

Prohibit the continuation of business operations in whole or in part.

(4) The FMA may, at the request of the supervising person appointed pursuant to paragraph 3 (2) or (5), appoint a deputy if and as long as this is due to important reasons, in particular because of temporary prevention of the supervising person, is required. The appointment of the Deputy as well as the rights and obligations of the Deputy shall apply the provisions applicable to the supervisory staff. The supervisory authority (Government Commissioner) may, with the approval of the FMA, be able to meet professionally qualified persons in order to fulfil their duties, to the extent that this is necessary in accordance with the scope and difficulty of the tasks. The approval of the FMA has to name these persons in particular and must also be granted to the legal entity. These persons act on instructions and on behalf of the supervisory staff (government commissioner) or their deputy.

(5) The FMA has to obtain reports on appropriate government commissioners from the Austrian Bar Association and from the Chamber of Economic Scatterers. If a government commissioner pursuant to paragraph 3 (2) or a deputy is to be ordered pursuant to paragraph 4 and if no order is possible on the basis of these reports, the FMA shall have the attorney's chamber or the chamber responsible for the seat of the legal entity to notify the accountant to make it known to a professional lawyer or auditor as a government commissioner. In case of danger in default, the FMA

1.

a lawyer or

2.

an auditor

provisionally order as government commissioner. This order shall not apply to the appointment of a lawyer or chartered accountant after the first sentence.

(6) The Government Commissioner is to be paid a fee (function fee) by the FMA, which is proportionate to the work involved in the supervision and to the costs of the work. The Government Commissioner shall be entitled to invoice for the preceding quarter and after the end of his activity. The FMA has to pay the remuneration immediately after auditing the invoice.

(7) insults with which heads of business are prohibited in whole or in part from the management of a central counterparty (paragraph 2). 3 and Section 8), as well as any cancellation of this measure, are to be sent by the FMA to the Company's Book Court for entry in the Company Book.

(8) Finally, a central counterparty provisions of this federal law or of the Regulation (EU) No. 648/2012 may be the FMA

1.

the central counterparty shall, under threat of a penalty, apply to establish the lawful condition within that period, which is appropriate in view of the circumstances of the case;

2.

in the event of a repetition or continuation, the directors of the central counterparty shall prohibit the management in whole or in part, unless this would be inappropriate in the nature and seriousness of the infringement, and the restoration of the legal status can be expected by repeated actions in accordance with Z 1; in this case the first imposed penalty is to be carried out and the order shall be repeated under threat of a higher penalty.

(9) Proceedings in accordance with Regulation (EU) No 648/2012 shall be deemed to have been deposited with the FMA without an earlier delivery attempt as defined in Regulation (EU) No 648/2012. In relation to the addressees, the time-limits bound to the service remain according to the general administrative procedure rules and the rules of the delivery law, BGBl. No 200/1982.

Support for European supervision of trade repositories

§ 4. The FMA supports the European Securities and Markets Authority (ESMA) and its authorised representative in accordance with the provisions of Regulation (EU) No 648/2012. The FMA can also provide assistance in accordance with § 21 (1), (2) and (4) of the German Financial Markets Authority Act (FMABG), BGBl. I n ° 97/2001.

Cost

§ 5. (1) The costs incurred by the FMA as the competent authority of the home Member State are the costs of the securities supervision unit (Section 19 (1) (3) and (4) of the FMABG) and are from those central counterparties for which the FMA functions as the competent authority of the home Member State and to reimburse the clearing members of the competent authority of the home Member State. To this end, the FMA has, in addition to the provisions of Section 90 (1) of the Securities and Markets Act 2007 (WAG 2007), BGBl. (i) No 60/2007, to form an additional sub-accounting for central counterparties and for their clearing members in each of the accounting circuits provided for in the Securities and Markets Authority (Securities and Markets) accounting system.

(2) The amounts to be paid on the basis of charges pursuant to paragraph 1 shall be required by the FMA; the fixing of flat-rate amounts shall be permitted. The FMA has set out more detailed rules on this division of costs and on its terms of reference with regulation. In particular, the following rules shall apply:

1.

The tax bases for the different types of cost prescriptions;

2.

The dates for the costs and the time limits for the payment of the payer.

In the case of the omission of Regulations pursuant to Z 1 and 2, the extent of the clearing services provided and the sub-accounting for clearing members shall be based on the proportion of the clearing services provided for the central counterparties to the sub-accounting group. To take care of the clearing services provided. The central counterparties have to provide the FMA with all necessary information on the fundamentals of cost measurement.

Criminal provisions

§ 6. (1) Those who are responsible (§ 9 of the 1991 Administrative Criminal Law-VStG, BGBl. No 52/1991) of a central counterparty, a financial counterparty or a non-financial counterparty violates the provisions of this Federal Act or of Regulation (EU) No 648/2012, or who does not have the right to provide clearing services without the Pursuant to Article 14 (1) of Regulation (EU) No 648/2012, an administrative surrender shall be issued and shall be punished by the FMA with a fine of up to EUR 150 000.

(2) In order to pursue the transgressions referred to in paragraph 1 above, the FMA may exercise the powers specified in § 22b FMABG, without prejudice to the application of § 3 (1).

(3) The FMA has regularly published reports on the evaluation of the effectiveness of the penal provisions of this law. The use of personal data in accordance with § 4 Z 1 of the Data Protection Act (DSG 2000), BGBl. I No 165/1999.

Procedural rules and publication

§ 7. (1) The FMA is responsible in the first instance for the imposition of administrative penalties in accordance with § 6 para. 1.

(2) In the case of administrative prosecution proceedings pursuant to Section 6 (1), a limitation period of 18 months shall apply instead of the period of limitation of § 31 para. 2 VStG of six months.

(3) For the execution of a file pursuant to this Federal Act or Regulation (EU) No. 648/2012, it is replaced by the provisions of Section 5 (3) of the Administrative Enforcement Act 1991 (VVG), BGBl. No 53/1991, the amount of the sum of EUR 30 000.

(4) The FMA may disclose the measures it has taken pursuant to § 3 (3), (5) and (8) as well as sanctions in accordance with § 6 (1) by the Internet, print in the "Official Journal of the Wiener Zeitung" or in a newspaper with distribution throughout the Federal territory. Any publication of measures or sanctions may be carried out only where this is necessary in the light of the nature and seriousness of the breach of information to the public and is proportionate to the potential disadvantages of the person concerned. Penalties for infringements of Articles 4, 5 and 7 to 11 of Regulation (EU) No 648/2012 shall be notified unless such disclosure would seriously jeopardie the stability of the financial markets or impose a disproportionate amount of to cause high damage. These publication measures may also be taken cumulatively. The use of personal data in accordance with § 4 Z 1 DSG 2000 has to be maintained in the publication of sanctions for infringements of Articles 4, 5 and 7 to 11 of Regulation (EU) No 648/2012.

(5) The person affected by the publication may request a review of the legality of the publication in accordance with paragraph 4 in a procedure to be carried out in a modest way at the FMA. The FMA has to make known the introduction of such a method in the same way. If, in the context of the review, the unlawfulness of the publication is determined, the FMA shall correct the publication correctly or, at the request of the person concerned, either withdraw it or remove it from the internet presence. If a complaint against a communication which has been made known in accordance with paragraph 4 is granted suspensive effect in proceedings before the courts of the courts, the FMA shall disclose this in the same way. The publication shall be correct or, at the request of the person concerned, either to be revoked or to be removed from the internet presence if the communication is cancelled.

Qualifying holdings

§ 8. In accordance with Article 32 (4) of Regulation (EU) No 648/2012, the FMA has to determine, by means of a regulation, which information is to be transmitted to the FMA as part of an ad pursuant to Article 31 (2) of Regulation (EU) No 648/2012.

Linguistic equality

§ 9. 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

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

References

§ 11. Insofar as other federal laws are referred to in this Federal Act, these are to be applied in their respectively applicable version.

Article 2

Amendment of the Financial Market Supervisory Authority Act

The Financial Market Supervisory Authority Act (FMABG), BGBl. I n ° 97/2001, as last amended by the Federal Law BGBl. I No 145/2011, shall be amended as follows:

1. In § 2 para. 3, after the word order " Ratingagenturenvolltraction Act-RAVG, BGBl. I No 68/2010 " the phrase " , in the central counterparty law enforcement law-ZGVG, BGBl. I No 97/2012, " inserted.

2. In § 19, para. 4, last sentence, after the word order "the E-Money Act 2010" the phrase " , the ZGVG " inserted.

Article 3

Amendment of the Finality Act

The Finality Act, BGBl. I n ° 123/1999, as last amended by the Federal Law BGBl. I. No 145/2011, shall be amended as follows:

In Article 17, the following sentence shall be inserted after the second sentence:

" If a system operator has provided a security to another system operator within the framework of an interoperable system, the rights of the system operator providing security shall be subject to the security of insolvency proceedings against the security system operator. the receiving system operator shall not be affected. "

Fischer

Faymann