Amendment Of The Banking Act

Original Language Title: Änderung des Bankwesengesetzes

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20. Federal Law, which changes the Banking Act

The National Council has decided:

Amendment of the Banking Act

The Banking Act, BGBl. No 532/1993, as last amended by BGBl. I No 145/2011, shall be amended as follows:

01. § 23 para. 4b Z 3 reads:

" 3.

an appropriate financial and own resources situation, even after termination or early repayment of the hybrid capital, whereby the FMA may require a demonstrable acquisition of capital at least the same amount and quality; the Replacement procurement is to be documented. In the event of termination or early repayment by 31 December 2012, the FMA may also provide a subsequent replacement for the purpose of ensuring a sustainable creditability of the own resource components to be replaced as a replacement. . The condition of the replacement procurement shall be waived if the FMA is proved that the credit institution and the credit institution group, even after dismissal or early repayment of the hybrid capital, shall be subject to an appropriate financial and Own resources situation. "

02. § 23 (7) Z 5 reads:

" 5.

the remaining maturity of which shall be at least three years; the credit institution may terminate, with effect from the expiry of the remaining period of three years without notice, if this is contractually permissible, and the credit institution has previously held capital in the same The height and at least the same own resources quality has been demonstrably procured. In the event of termination by 31 December 2012, the FMA may also approve subsequent replacement procurement with a view to ensuring the sustainable creditability of the own resource components to be purchased as a replacement. The replacement is to be documented. In all cases mentioned above, the condition of the replacement procurement shall be waived if the FMA is satisfied that the credit institution and the credit institution group have sufficient own resources, even after dismissal of the supplementary capital, to be used for the purposes of an adequate risk coverage is required. "

§ 23 (8) Z 1 reads as follows:

" 1.

The total duration shall be at least five years; if a term of maturity is not established or termination is possible on the part of the credit institution or the creditor, provision should be made for a period of notice of at least five years; the credit institution shall: may, on the other hand, terminate without notice period after a period of five years if it has previously obtained capital of the same amount and at least the same quality of own resources; the five-year period shall also not be met if: Debt securities due to changes in taxation, which are subject to an additional payment to the Creditors shall be terminated prematurely or if the legal creditability of subordinated capital changes in a manner not foreseeable at the time of the issuance and the credit institution previously capital at the same level and at least the same Own resources quality has been obtained. In the event of termination by 31 December 2012, FMA may also approve subsequent replacement procurement with a view to the sustainable creditability of the own resource components to be purchased as a substitute. In the event of resignation of subordinated capital, the credit institution shall document the replacement; the condition of the replacement shall be waived in all cases mentioned above, if the FMA is proved that the credit institution and the credit institution Credit institution group shall also have sufficient own resources necessary for adequate risk coverage, even after termination of the subordinated capital; "

04. In accordance with § 23 (10), the following paragraph 10a is inserted:

" (10a) Credit cooperatives can stipulate in the cooperative contract that the liability of their members is limited to the business share (§ 86a GenG). The necessary modification of the Cooperative Treaty may only be decided if a auditor to be ordered under the Cooperative Review legislation confirms in a written opinion that the compliance with the Ordinal standards in accordance with § § 22 to 29 are also guaranteed without the consideration of an adhesion sum surcharge. In addition, the limitation of liability to the business share § 33a GenG shall apply with the proviso that the direct understanding of known creditors pursuant to section 33a (1) of the last sentence of the GenG may not be accepted if the auditor in his opinion Declares that the limitation of liability to the business share is compatible with the interests of the creditors of the cooperative. The liability of the supervisor for the content of its opinion is based on § 10 GenRevG 1997 in conjunction with § 62a. "

1. In § 30 (4), the following Z 3 is added:

" 3.

the credit institution with its registered office in Germany, with the exception of the central organisation, is a member of a credit institution (§ 30a). "

2. The title of the VI. Section is:

"Group of credit institutions and credit institutions-Verbund"

3. In accordance with § 30, the following § 30a is inserted:

" § 30a. (1) National credit institutions which are permanently assigned to a credit institution with a registered office in the territory of the country as a central organization may, together with the central organization, form a credit institution group if:

1.

the central organisation credit institution is in accordance with Article 1 (1),

2.

the liabilities of the central organisation and its associated credit institutions are common liabilities or the central body is fully liable for the liabilities of the associated credit institutions; and

3.

the central body shall be empowered to give instructions to the associated credit institutions in so far as it is necessary to fulfil the obligations of the central body in accordance with this paragraph.

The credit institution network shall be established by the conclusion of a contract between the central organisation and the associated credit institutions. Such a contract shall be valid in all participating companies with the approval of the main or general assembly with the majority required to amend the Articles of Association. In addition, the companies have to adapt their statutes accordingly.

(2) A credit institution group is not a group of credit institutions in accordance with Section 30 (1).

(3) The formation of a credit institution-association shall be subject to the approval of the FMA; the central organization name of the central organisation and the associated credit institutions shall be eligible for application. The application shall be accompanied by documents setting out, in particular, the tax, control and risk management processes, the permanent fulfilment of the supervisory requirements by the network and other essential facts.

(4) In the event of the conditions set out in paragraph 1, the FMA has to approve the formation of the credit institution's association. The grant notice may contain conditions and conditions. The notification of authorisation shall be adopted within three months from the date on which the FMA has sent all the documents necessary for the assessment and information has been provided. The communication shall be sent to the central organisation. The notification to the central organization shall be deemed to be delivered to all members of the credit institution's association. The central organisation shall immediately inform all the credit institutions associated with the communication. The FMA may prescribe an appointment by which the intended formation of a credit institution must be completed.

(5) Changes in the composition of the members of the credit institution-association shall be notified in writing to the FMA, accompanied by the documents referred to in paragraph 3 above, by the central organization prior to its implementation. If the conditions set out in paragraph 1 are omitted or if the credit institution group is no longer in a position to comply with the supervisory requirements set out in paragraph 7, the FMA has to state that and from which point in time a Credit institution network no longer exists. The composition of the credit institution association and its modification shall be published on the Internet site of the central organisation. With regard to the removal of the conditions laid down in paragraph 1 or, if the credit institution network is no longer in a position to satisfy the supervisory requirements laid down in paragraph 7, this shall be notified in writing by the central organization of the FMA.

(6) The provisions of Sections 4 (3) and (4), 5 (1) (Z) 5, 10, 16, 22 to 22e, 22f (1) and (2), 22g to 22q, 25 (1) to 12 and 14, 26, 27, 29, 39 (2), 39a and Section 70 (4a) shall not apply to the associated credit institutions. For the purposes of section 22f (4), the central organisation shall be considered as an EEA parent credit institution and the associated credit institutions shall be considered as subordinate institutions. The associated credit institutions are exempted from the notification and reporting obligations (§ § 73 to 75), which are used exclusively for the monitoring of these provisions.

(7) The credit institution group shall comply with the provisions of Sections 22 to 22e, 22f (1) and (2), 22g to 22q, 25 (1) to (12) and (14), 26, 27, 29 and 39a on the basis of the consolidated accounts. The central organisation for the credit institution network has to comply with the notification and reporting requirements applicable to higher-level credit institutions and credit institutions (§ § 73 to 75). For the purposes of § § 38, 39, 42 and 93a as well as § 2 para. 3 ECEC and for the use of data (§ 4 Z 8 DSG 2000) the credit institution association shall be considered as a credit institution.

(8) The central organization has the basis of assessment for the credit risk according to Article 22 (2), the positions of the trading book in accordance with the rules of section 24a, open foreign currency positions and gold positions according to § 24b and the own funds (§ 23) of the to consolidate, in accordance with the full-consolidation procedure, the central organisation, the associated credit institutions and those institutions subordinate to the central organisation or associated credit institutions in accordance with Article 30 (1). For the purposes of this full consolidation, the central organization shall be treated as a parent institution and each associated credit institution shall be treated as a downstream institution. In this case, shares in affiliated institutions which are not held by the central organization or an associated institute are not to be issued as non-foreign shares pursuant to Section 259 (1) of the UGB nor are the shares of other members within the meaning of § 24 para. 2 Z 1, provided that the associated credit institutions have directly or indirectly a majority of the voting shares in the central organization. In the calculation of the majority of the voting shares, measures pursuant to Section 1 of the Financial Market Stability Act shall not be taken into account.

(9) For the purpose of measuring the costs of financial market supervision, the credit institution group shall be deemed to be a credit institution, and the central organisation shall be subject to a charge. The central organisation shall allocate and offset the costs of banking supervision in accordance with the calculation key of section 69a (2) on the associated credit institutions.

(10) The central organisation shall be responsible for compliance with the provisions of this Federal Law which apply to the credit institution network and, within the framework of this obligation, shall in particular be responsible for the solvency and liquidity of the To supervise credit institutions on the basis of consolidated financial statements and the associated credit institutions. The central organization shall ensure that the directors of the associated credit institutions meet the requirements in accordance with § 4 (1) Z 6 and that the requirements are met in accordance with § 5 (1) Z 6 to 13 and that the credit institution network on administrative, accounting and control procedures for the collection, assessment, management and supervision of banking and banking risks and remuneration policies and practices (§ 39 para. 2). The right to give instructions pursuant to Section 1 (1) (3) of the Central Organisation shall be justified by the Treaty and the Statute. The associated credit institutions shall not be deemed to be dependent companies for the purposes of Section 23 (16) or as subsidiaries for the purposes of § § 51 (2), 65 (5), last sentence, and 66 AktG. The central organization shall not be deemed to be the parent company of the associated credit institutions for the purposes of § 66a AktG on the basis of these rights of instructions. However, Section 70 (1) or Section 84 (1) of the German Stock Corporation Act (AktG) cannot be held against the right of instruction of the central organization.

(11) The credit institution group shall be entitled to carry out its activities in the Member States through a branch or by means of the freedom to provide services by the central organisation or by individual associated credit institutions, to the extent that: the activities are covered by the concession of the central organisation or the associated institutes concerned. The advertisements referred to in § 10 (2), (5) and (6) shall be the responsibility of the central organisation, which shall also indicate the credit institutions of the credit institution's association with the activities carried out. § 16 shall apply to the credit institution network.

(12) The provisions of Sections 29a, 30 (7), 8, first sentence and 10 and 70 (1), 4a and 4b are to be applied to a credit institution network with the proviso that the central organization as a parent institution and the credit institution group as a The credit institution group shall apply. "

3a. In § 43 (1) and (2), in each case after the word "credit institutions" the word group "and credit institution's allies" inserted.

3b. The following paragraph 8 is added to § 44:

"(8) (1) to (7) shall apply in the same way to credit institutions ' allies."

3c. In § 43 (1) and (2), the following shall be given after the word "credit institutions" the word group "and credit institution's allies" inserted.

3d. In Section 60 (1), after the word "credit institution" the word group "and every credit institution-association" inserted.

3e. In Section 63 (4), in Z 8, the point at the end is replaced by a line-point and the following Z 9 is added:

" 9.

in the case of credit institution allies, compliance with § 30a. "

3f. § 70 (1) reads:

" (1) In its jurisdiction as a banking supervisory authority (§ 69 (1) (1) and (2)), FMA may, without prejudice to the powers conferred on it under other provisions of this Federal Law, at any time to supervise the credit institutions, Credit institution's groupings and the credit institution groups

1.

by credit institutions, credit institution and credit institutions as well as by higher-level credit institutions for companies of the credit institution group, the submission of interim financial statements, statements of specific form and structure, and audit reports require credit institutions, credit institutions and credit institutions, as well as the parent credit institutions, to request information on all matters relating to the business of the credit institution's group and its institutions; Inspect documents and data media; to the extent of the information, § 60 (3) applies to the FMA's submission and registration rights and to the obligation to make documents available on the domestic market;

2.

obtain information from the bank auditors of credit institutions, credit institutions and credit institution groups and from the relevant audit and audit associations; furthermore, it may be consulted by the security institutions and by the competent authorities in accordance with paragraph 2 (2) (2) collect all necessary information and give it to the Government Commissioner;

2a.

by the bank auditors of credit institutions, credit institutions and credit institution groups, other auditors and accounting firms, the competent audit and audit associations, and by other experts, all -the necessary examinations must be carried out; the grounds for exclusion referred to in § 62 shall apply; the issuing of information by the FMA to the examiner appointed by the FMA shall be admissible in so far as this is appropriate for the performance of the examination contract is;

3.

the Oesterreichische Nationalbank (Oesterreichische Nationalbank) with the examination of credit institution's allies, credit institutions, their branches and representative offices outside of Austria , of credit institutions subject to supplementary supervision pursuant to Article 5 (1) of the FKG, as well as by companies of the credit institution group. The competence of the Oesterreichische Nationalbank for the on-the-spot audit in the area of banking supervision and of credit institutions or credit institution groups in financial conglomerates extends comprehensively to the examination of all business fields and all Risk types. The Oesterreichische Nationalbank (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 allow its own employees to participate in audits of the Oesterreichische Nationalbank;

4.

for the examination of undertakings of the credit institution group and of branches and representative offices in Member States and in third countries, in accordance with Article 77 (5) (2) and (3), the competent authorities of the host State shall also ask for the examination to be carried out if: this is simplified or accelerated in relation to a test according to Z 3, or if it is in the interest of convenience, simplicity, convenience or cost savings; under these conditions, the Oesterreichische shall also be able to: The National Bank shall be obliged to take part in such an audit and may Employees of the FMA take part in such a review. "

3g. § 70 (4a) reads:

' (4a) Without prejudice to paragraph 4, the FMA shall have a credit institution, credit institution or credit institution ' s own resources requirement in excess of the minimum capital requirement in accordance with Article 22 (1) in one for the limitation period. to make the banking and banking risks and the risks arising from remuneration policies and remuneration practices appropriate and necessary in the case of a credit institution, a credit institution or a credit institution, or a credit institution Credit institution group no adequate limitation of banking business and the risks arising from the remuneration policy and the remuneration practices of the credit institution or the group of credit institutions (§ § 39 and 39a) and a short-term adequate collection and limitation of such risks is not to be expected from the credit institution, the credit institution network or the credit institution group. The FMA shall immediately require additional own funds under this paragraph if other measures under this Federal Act do not allow, in the light of the circumstances of the case, to ensure that they have adequate coverage and limitation. the risks or the legal condition may be established over a reasonable period of time, and the FMA is not obliged to proceed with the pre-depreciation of additional own resources in accordance with paragraph 4 (1) of this Regulation. "

4. § 97 (1) Submission sentence is:

"(1) The FMA has to impose interest on the credit institutions and the central organisation in the case of a credit institution collective in accordance with Article 30a for the following amounts:"

Section 98 (2) of the introduction is the following:

"(2) Anyone who is responsible (§ 9 VStG) of a credit institution or, in the case of a credit institution, in the case of Z 1, 2, 4b, 7, 7a, 8 and 11 as the responsible person (§ 9 VStG) of the central organisation"

6. In Section 98 (2), the following Z 5a is inserted after Z 5:

" 5a.

the central organisation does not provide all the information required for consolidation pursuant to Article 30a (8); "

6a. In accordance with § 98 (2) Z 7 the following Z 7a is inserted:

" 7a.

the written notification of changes in the composition of the members of the credit institution or of the removal of the conditions laid down in paragraph 1, or, if the credit institution is no longer capable, of the conditions laid down in paragraph 1, or comply with the prudential requirements laid down in paragraph 7 above, in accordance with Section 30a (5) of the BWG; "

8. The following Z 6b shall be added to Section 99 (1) (6a):

" 6b.

as the person responsible (§ 9 VStG) of an institute subordinate to a central organisation or a credit institution assigned to the central organisation, the central organisation not all the information required for consolidation pursuant to § 30a paragraph 8; "

8a. § 103n receives the sales designation "(1)" . The following paragraph 2 is added:

" (2) After the entry into force of the Federal Law BGBl. I n ° 20/2012 is the following transitional provision: § 23 para. 4b Z 3, para. 7 Z 5 as well as paragraph 8 Z 1 in the version of the Federal Law BGBl. I n ° 20/2012 should also be applied to instruments, before the date of the entry into force of this Federal Law. "

8b. According to § 103o, the following § 103p is inserted:

" § 103p. After the entry into force of the Federal Law BGBl. As of 31 December 2013, I N ° 20/2012 shall be subject to the following transitional provision:

(on § 30a):

In the context of the establishment of a credit institution, credit institutions may contribute the central organisational part-operation to a capital company or a cooperative. The submission shall continue to be held liable, provided that they remain, with all its assets for all liabilities that have been incurred up to the date of the introduction, including the basis of the existing liabilities, including the amount of contractual obligations arising out of a service. Section 92 (4) to (7) and (10) shall apply with the proviso that public limited liability companies may also contribute, and that the legal entity to which it is incorporated (central organisation) shall have the legal form of a capital company or a cooperative can. "

8c. In § 108 Z 4, after the expression "§ 21 (2) and (3)," the expression "§ 23 (10a)," inserted.

Fischer

Faymann