20 federal law amends the Banking Act
The National Council has decided:
Amendment of the Banking Act
The Banking Act, Federal Law Gazette No. 532/1993, as last amended by Federal Law Gazette I no. 145/2011, is amended as follows:
01 § 23 paragraph 4b Z 3 is: "3. an even after termination or early repayment of hybrid capital adequate financial and equity situation, with the FMA can require a proven procurement by at least the same amount and quality of capital the replacement shall be documented. Termination or early repayment until 31 December 2012, the FMA with regard to ensuring a sustainable eligibility of own funds items to be procured as a replacement can approve even a subsequent replacement. The condition of replacement is omitted, if the FMA is proved that the Bank and the Group of credit institutions have even after termination or early repayment of hybrid capital adequate financial and equity situation."
02. § 23 para 7 Z 5 is: "5. whose remaining time at least three years; the credit institution may terminate effective before the expiry of the maturity of three years without notice, if contractually permitted and the Bank previously has demonstrably raises capital in equal and at least equal quality of own funds. Upon termination by 31 December 2012 the FMA with regard to ensuring can approve also a subsequent replacement a sustainable eligibility of own funds items to be procured as a replacement. The replacement shall be documented. The condition of replacement is omitted in all aforementioned cases, if the FMA is proved that the credit institution and the credit institution group have even after termination of the supplementary capital sufficient own resources that are required for an adequate risk coverage."
03. § 23 paragraph 8 No. 1 is: "1 the total running time has at least five years to be; a term is not set or a termination by the credit institution or of the creditor is possible to provide for a notice period of at least five years; the credit institution may, however, terminate without notice after a period of five years, if it has previously procured capital in the same height and at least equal quality of own funds; the period of five years is not maintained also, if debt securities due to change be prematurely terminated the taxation, which results in an extra payment to the creditor, or if the legal eligibility of the subordinated capital changes not foreseeable at the time of the emission type and the credit institution previously has obtained capital in the same height and at least equal quality of own funds. Upon termination by 31 December 2012, the FMA with regard to a sustainable eligibility of own funds items to be procured as a replacement may authorize also a subsequent replacement. In the event of termination of subordinated capital the credit institution has documented the replacement; the condition of replacement is omitted in all aforementioned cases if the FMA is proved that the credit institution and the credit institution group have even after termination of the subordinated capital sufficient own resources that are required for an adequate risk coverage;"
04. According to § 23 paragraph 10, the following section 10a is inserted:
"(10a) credit unions can set in the cooperative agreement, that the liability of its members limited to the share (§ 86a GenG). The necessary amendment to the cooperative contract may be decided only if an auditor to bestellender under the legislation on the cooperative review confirmed in a written opinion that compliance with the regulatory provisions in accordance with the articles 22 to 29 without crediting a prison Sum aggregate is ensured. In addition, § 33a GenG, with the proviso that the immediate understanding of known creditors according to § 33a paragraph 1 last sentence GenG can be avoided, if the auditor expresses in his opinion, that the limitation of liability on the ownership interest with the interests of the creditors of the cooperative is compatible applies to limitation of liability on the share. The liability of the auditor for the contents of its opinion is GenRevG according to § 10 1997 in connection with section 62a."
1. in § 30 par. 4 3 will be added following Z: "3. the credit institution with headquarters in Germany, except the Central Organization, is a member of a credit institutions network (section 30a)."
2. the heading of the VI. section is as follows:
"Group of credit institutions and credit institutions composite"
3. According to article 30, the following article 30a is inserted:
"section 30a. (1) credit institutions with headquarters in Germany, which are constantly associated with a credit institution with headquarters in Germany as a central organization, can make a Federation of credit institutions together with the central body, if 1 the Central Organisation is credit institution in accordance with § 1 para 1, 2. the liabilities of the central body and the credit institutions associated with it are common liabilities or the Central Organization in full for the liabilities of the associated credit institutions shall be liable and 3. the central body is empowered , the associated banks instructions to give, as far as this is necessary for the fulfilment of the commitments of the central body in accordance with this paragraph.
The banks bond through a contract between the Central Organization and the associated financial institutions. To its validity in all participating companies, such a contract requires the consent of the main or General Assembly with the majority required for an amendment of the statutes. The companies have also to adapt their articles of Association.
(2) a Federation of credit institutions is no group of credit institutions in accordance with article 30, paragraph 1.
(3) the formation of a group of credit institutions requires the approval of the FMA; the central organization called the Central Organization and the associated credit institutions is eligible to apply. Documents are the request to join, which set out in particular the control, control and risk management processes, the long-term feasibility of regulatory requirements through the Federation and other significant items.
(4) the FMA has to approve the formation of the banks association when the conditions referred to in paragraph 1. The approval decision may contain appropriate terms and conditions. The approval decision is three months from the date to which were all documents required for assessing the FMA and information, to adopt. The decision shall be notified to the Central Organization. With delivery to the Central Organization of the decision is considered to be delivered to all members of the financial institutions group. The Central Organization has the decision to bring all associated banks. The FMA may prescribe a date until which the intended education of a group of credit institutions must be completed.
(5) changes in the composition of the members of credit institutions network are to display the FMA, enclosing the documents referred to in paragraph 3 of the central organization before performing in writing. If the conditions referred to in paragraph 1 or if the banks Federation no longer capable of is to comply with the prudential requirements referred to in paragraph 7, the FMA with notice to determine that and at what point a credit Institute network no longer exists. The composition of the banks Association and its modification is to publish on the Internet page of the central body. With regard to the non-recurrence of the conditions referred to in paragraph 1 or, if the banks Federation is no longer able to meet the regulatory requirements in accordance with paragraph 7, this is the FMA by the Central Organization in writing.
(6) on the associated credit institutions the provisions of §§ 4 para 3 see Nos. 3 and 4, 5 para 1 Z 5, 10, 16, 22-22e 22f para 1 and 2, 22 g 22q, 25 para 1 to 12 and 14, 26, 27, 29, 39 para 2, 39a and § 70 para 4a no application. The Central Organization for purposes of article 22f para 4 apply as EEA parent bank and the associated credit institutions as subordinate institutions. Associated credit institutions are exempt from those display and reporting requirements (sections 73 to 75), which serve exclusively the monitoring of these provisions.
(7) the credit institutions Federation has the provisions of §§ 22-22e, 22f para 1 and 2, to meet par. 1 to 12 and 14, 26, 27, 29 and 39a on the basis of the consolidated financial statements 22 g 22q, 25. The Central Organization for credit institutions Federation display applicable to parent credit institutions and groups of credit institutions and reporting requirements (sections 73 to 75) has to comply with. For purposes of sections 38, 39, 42 and 93a, § 2 para 3 EKEG and for the use of data (§ 4 Z 8 DSG 2000) the credit institutions-composite is considered a credit Institute.
(8) the Central Organization has the basis for credit risk in accordance with article 22, paragraph 2, the positions of the trading book according to the rules of section 24a, open foreign currency positions and gold positions pursuant to section 24 (b) and the own resources (article 23) of the central body, the associated credit institutions and by those institutions that are the central organization or associated credit institutions in accordance with article 30, paragraph 1 subordinated to consolidate the process of consolidation. For the purposes of this consolidation, the Central Organization parent institution and any associated credit institution as a central institution is to treat. These are interests in associated institutions that are held not by the central organization or associated institution to expel as minority shareholders in accordance with article 259, paragraph 1 UGB nor as minority interests within the meaning of section 24 para 2 to treat Z 1, unless the associated credit institutions directly or indirectly have the majority of the voting shares of the Central Organization. Measures referred to in article 1 have to financial market stability Act shall be disregarded in calculating the majority of the voting shares.
(9) the credit institutions-composite is considered a credit institutions for purposes of calculating the costs of financial market supervision, the central organization is subject to a charge. The Central Organization has to share the costs of banking supervision after the scale of assessment section 69a paragraph 2 on the associated credit and charge.
(10) the central organization is responsible for the compliance with the provisions of this Federal Act, that apply to the credit institutions-composite, and has to monitor in particular the solvency and liquidity of the banks Association on the basis of consolidated accounts, as well as the associated credit institutions in the context of this commitment. The Central Organization has to ensure that the Managing Director of associated banks meet the requirements pursuant to § 4 para 1 No. 6 and the requirements pursuant to § 5 para 1 are Z 6 to 13, and that the credit institutions Federation of banking and banking operations risk and remuneration policies and practices (§ 39 para 2) has administrative, accounting and control procedures for the acquisition, evaluation, control, and monitoring. The necessary instruction rights referred to in paragraph 1 are Z 3 of the central body by Treaty and statute to justify. Associated banks are due to this instruction rights relative to the central body not as a dependent for purposes of section 23 paragraph 16 as a subsidiary for purposes of § 51 para 2, 65 paragraph 5 last sentence and 66 AktG. The Central Organisation does not apply because this instruction rights as the parent company of associated banks for purposes of section 66a of the German Stock Corporation Act. However, the right of instruction of the central body can article 70, paragraph 1 or article 84, paragraph 1 German Stock Corporation Act will not oppose.
(11) the credit institutions Federation is entitled to exert its activities in the Member States through a branch or by way of free services through the central organization or individual associated banks, as far as the activities of the concessions of the central body or the associated institutions concerned are covered. The ads in accordance with section 10 para 2, 5 and 6 are the Central Organization, which also indicate has, the activities are exercised by which banks of the banks Association. section 16 is to apply to the financial institutions group.
"(12) the provisions of sections 29a, 30 para are first set of 7, 8 and 10 and 70 para 1, 4a and 4B apply to a credit institutions together with the proviso that the central organization is considered as the parent Institute and the banks Association Group of credit institutions."
3A. in article 43, paragraph 1 and 2 is inserted each after the word "Banks" the phrase "and credit institution groups".
3B. The following paragraph 8 is added to article 44:
"(8) para 1 to 7 shall apply in the same way for credit institutions associations."
3 c. is inserted each in § 43 para. 1 and 2 after the word "Banks" the phrase "and credit associations".
3D. in article 60, paragraph 1 the phrase "and any credit bond" is inserted after the word "Bank".
3E. in section 63 para 4 is in Z 8, at the end, the point replaced with a semicolon and following Z 9 added: "9th at credit unions compliance with section 30a."
3F. Article 70, paragraph 1 reads:
"(1) in the area of its competence as supervisory authority (article 69, paragraph 1 Z 1 and 2) the FMA without prejudice to the can you on the basis of other provisions of this Federal Act powers related to at any time to the supervision of credit institutions, credit institution team and the credit institution Group 1 banks, Bank associations and parent credit institutions for the credit institution group require the submission of interim financial statements, of ways in certain form and structure and audit reports" , also by the credit institutions, credit institution associations and parent credit institutions for the credit institution group and whose bodies request information about all business matters in the books, documents and data carriers take insight; the scope of the rights of information, template - and a show of FMA and the commitment to the availability of documents in the domestic section 60 paragraph 3 is to apply;
2. by the bank auditors of the credit institutions, credit institution associations and groups of credit institutions and by the competent review and revision associations information collect; It can also backup facilities and pursuant to par. 2 Z 2 all necessary information obtain ordered Commissioner of the Government and grant them;
2A. the bank auditors of the credit institutions, credit institution team and groups of credit institutions, other accountants and accounting firms, the competent testing and auditing associations and other experts be all required checks personnel; the exclusion grounds referred to in section 62 shall apply; Provision of information by the FMA to the examiner appointed by you is permitted, insofar as this is relevant to the performance of the audit mandate;
3. the Austrian National Bank examining the credit institution associations, banks, their branches and representative offices outside Austria, by credit institutions, which are subject to additional supervision FKG pursuant to § 5 para 1 and charge by the credit institution group. The competence of the Austrian National Bank to the preliminary on-site inspections in the area of bank supervision and credit institutions and groups of credit institutions in financial conglomerates 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;
4. to check the credit institution group companies as well as branches and representative offices in Member States and third countries in accordance with article 77, paragraph 5 request Nos. 2 and 3 the competent authorities of the host Member State the performance of the test if it simplifies the procedure compared to a test in accordance with no. 3 or accelerated or if this is; located in the interest of practicality, simplicity, quickness, or cost savings under these conditions may be required to participate in such an examination the Austrian National Bank and our own employees of the FMA can participate in such an examination."
paragraph 4a is 3 g. Article 70:
"(4a) without prejudice to the paragraph 4 has the FMA over the minimum capital requirement according to section 22 para 1 going beyond capital requirement in a limiting of banking and banking operations and the risks of reasonable remuneration policy and remuneration practices and necessary extent to prescribe when a credit institutions, credit institutions composite, or a group of credit institutions no reasonable limitation of banking and banking operations and the risks of the remuneration policy and the remuneration practices of the credit institution or credit institution Group (§§ 39 a a credit institution, a credit Institute group or a group of credit institutions" and 39a) exists and is a short-term appropriate acquisition and limit these risks by the credit institution, not to expect the credit institutions Federation or the credit institution group. The FMA has to prescribe additional own funds immediately under this paragraph if other measures did not expect after this federal law with regard to the circumstances of the case, that through them a reasonable collection and limitation of risks or the legal state; produced in a reasonable period of time While the FMA is not obliged to be in the notices of payment due of additional own funds no. 1 first in accordance with para 4."
4. § 97 para 1 sentence is:
"(1) the FMA has to impose interest to the credit institutions and the Central Organisation in interconnected credit institutions in accordance with section 30a for the following amounts:"
5. 98 para 2 introductory paragraph:
"(2) who was responsible (§ 9 VStG) a credit institution or, if interconnected credit institutions in the case of no. 1, b 2, 4, 7, 7a, 8 and 11 as the person responsible (§ 9 VStG) the Central Organization"
6. in article 98, paragraph 2, 5 following Z 5a is inserted after Z: '5a.
the central organisation not all consolidation necessary information pursuant to article 30a, paragraph 8 granted;"
6a. According to section 98 subsection 2 No. 7 following Z 7a inserted: '7a.
the written notification about changes in the composition of the members of credit institutions network or with respect to the non-recurrence of the conditions referred to in paragraph 1 or, if the banks Federation is no longer able to comply with the prudential requirements in accordance with paragraph 7, in accordance with section 30a para 5 BWG fails;"
8. in article 99 par. 1 Z 6a is following Z 6 (b) added: "6. as responsible (§ 9 VStG) an Institute that is subordinate a central organization or a credit institution associated with the Central Organization, Central Organization all necessary information pursuant to article 30a, paragraph 8 issued for consolidation;"
8A. Article 103n receives the sales designation (1). The following paragraph 2 is added:
"(2) after the entry into force of the Federal Act Federal Law Gazette I no. 20/2012 apply following transitory provisions: § 23 paragraph 4 b Z 3, paragraph to apply 7 Z 5 and 8 Z 1 in the version of Federal Law Gazette I no. is 20/2012 also on instruments, issued before the date of entry of into force of this federal law."
8B. The following § 103 p is inserted after article 103o:
"section 103 p. Entry in force of the Federal Act Federal Law Gazette I no. 20/2012 shall apply until 31 December 2013 following transitory provisions: (to section 30a): credit institutions within the framework of the establishment of a network of credit institutions the central organizational operating of part of in a corporation or cooperative contribute. The transferring are liable if they remain, with their total assets for all the liabilities, incurred up to the time of the contribution, including from the bottom to already existing contractual obligations from rights. § 92 para 4 through 7 and 10 are to apply subject to the proviso that even public companies can bring, and that the legal person is brought into the (Central Organisation) can have the legal form of a corporation or cooperative."
8 c. in section 108 Z 4 is for the phrase "§ 21 para 2 and 3", the expression "section 23 paragraph 10a," added.