Amendment Of The Securities Supervision Act 2007 And The 1994 Gewerbeordnung

Original Language Title: Änderung des Wertpapieraufsichtsgesetzes 2007 und der Gewerbeordnung 1994

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99. Federal Act to amend the Securities and Markets Act in 2007 and the Industrial Regulations 1994

The National Council has decided:

Article 1

Amendment of the Securities and Markets Act 2007

The Securities and Markets Act 2007-WAG 2007, BGBl. I n ° 60/2007, as last amended by the Federal Law BGBl. I No 77/2011, is amended as follows:

1. § 2 para. 1 Z 15 reads:

" 15.

Investment intermediaries: Natural persons with industrial property rights in accordance with § 94 Z 77 Gewerbeordnung 1994-GewO 1994, BGBl. No. 194/1994, in conjunction with § 136b GewO 1994, which, although self-employed, one or more services pursuant to § 3 (2) (1) and (3) exclusively in respect of financial instruments according to § 1 Z 6 lit. a and c provide in the name and on account of an investment firm or an investment service undertaking, no concession shall be required in accordance with § § 3 or 4. Natural persons with industrial authorization pursuant to § 94 Z 75 GewO 1994 in connection with § 136a GewO 1994 are also entitled to work as an investment broker. Investment intermediaries may only provide such services to investment firms and investment service providers, with a maximum of three representation ratios being permitted. In any event, the respective investment firm or the respective investment service undertaking shall be liable for the fault of the investment intermediaries of which he is serving in the provision of the investment services, in accordance with Section 1313a of the ABGB (German Civil Code), whether or not the securities broker is disclosed to the respective business owners. With regard to compliance with the provisions of this Federal Act and the other laws and regulations applicable to investment services, but not the provisions of the provisions of the 1994 Convention, the conduct of the securities brokers is, in any case, only of the investment firm or of the investment services undertaking itself. "

2. In § 4 (3) (2) (2) the word "and" at the end, replaced by a point; Z 3 is deleted.

(3) The following paragraphs 5 to 8 are added to § 4:

" (5) Investment firms or investment services undertakings may only use securities intermediaries which are in connection with the commercial authorization referred to in § 94 Z 77 GewO 1994 in conjunction with § 136b GewO 1994 or in accordance with § 94 Z 75 GewO 1994 § 136a GewO 1994.

(6) Investment firms or investment service undertakings shall monitor the activities of securities intermediaries acting on them. They shall ensure that an investment broker informs the client when he is in contact or before he enters into transactions with the client, the property in which he is acting and the investment firm or the investment firm, or the investment firm, or the investment firm. securities service providers.

(7) Investment firms or investment service undertakings shall be authorised to use only securities intermediaries registered in a public register.

(8) The public register shall be kept at the FMA. The register shall be updated on an ongoing basis. Investment firms or investment service undertakings shall carry out the registration of the securities intermediaries without delay and shall be responsible for the proper review. "

4. § 28 (5) first sentence reads:

"In Austria, tied agents have the right to have a commercial authorization pursuant to § 136a GewO 1994."

5. The following paragraph 9 is added to § 28:

"(9) Commercial investment advisers acting as tied agents shall not be entitled to act at the same time as securities intermediaries."

6. § 94 (2) first sentence reads:

" Anyone who provides investment services in accordance with Section 3 (2) without the necessary authorization, or who is not registered in accordance with Section 4 (7) or § 28 (4) in a public register, or who is bound by a contractual obligation to provide investment services in accordance with Article 4 (4) or Intermediaries shall not be entitled to any remuneration linked to these transactions, such as commissions, in particular. "

(7) The following paragraph 11 is added to § 95:

" (11) Anyone who, as the person responsible (§ 9 VStG) of an investment firm or an investment service company, is in breach of § 2 (1) Z 15 or § 4 (5) to (8) is subject to an administrative surrender and is fined up to EUR 50 000. punish. "

(8) The following paragraph 11 is added to § 108:

" (11) § 2 (1) Z 15, § 4 (3) (3) and (5) to (8), § 28 (5), first sentence and (9), section 94 (2), first sentence, and § 95 (11) shall enter into force on 1 September 2012. Anyone who works according to § 2 para. 1 Z 15 in the version of the Federal Law BGBl before 31 August 2012. I n ° 60/2007 has been allowed to exercise at least one year, this activity may continue to be carried out on the basis of the current legal situation up to two years after the entry into force of this Federal Law. "

Article 2

Amendment of the Industrial Regulations 1994

The Commercial Code BGBl No. 194/1994, as last amended by the Federal Law of the Federal Republic of Germany (BGBl). I n ° 111/2010, is amended as follows:

1. In § 2 para. 1 Z 14 the word "Financial Services Wizard" by the word "Securities Brokerage" replaced .

2. In § 87 para. 1 in the Z 4a the point is given by the word "or" shall be replaced and the following Z 4b and 4c are inserted:

" 4b.

within the meaning of Section 136a (5) or § 136b (3), the last representative relationship or in the sense of Section 136a (10) the representative relationship has fallen away or

4c.

in the sense of § 136a (12), no liability insurance is taken out of the property or proof in the sense of § 376 Z 2 does not take place in time or "

3. In § 94 the following Z 77 is inserted:

" 77.

Securities intermediaries "

4. § 136a (3) to (4) shall be replaced by the following paragraphs 3 to 12:

" (3) Commercial Property Consultants are entitled to the activities of Section 2 (1) Z 15 WAG 2007 as an investment broker (§ 94 Z 77). Activities as a bound agent pursuant to § 1 Z 20 WAG 2007 may not be carried out in this case.

(4) In the case of the registration of the commercial property advisory business (§ 94 Z 75), if the activity of the securities broker is exercised, in addition to the evidence in accordance with section 339 (3), the proof of the existence of a representative relationship . The applicant may not enter into the trade register only from the date of registration with the pursuit of the activity of the transfer of securities.

(5) The trader shall immediately inform the commercial authority of the final representation of the business. Upon notification of the removal of the last representative relationship, the Authority shall, without delay, initiate an de-cing procedure concerning the activity as an investment agent and, if a representative relationship has not been established without delay. to withdraw the authorization as a securities broker within two months at the latest. Section 361 (2) first sentence shall not be applied in this case. There is no suspensive effect on appeals against withdrawal of education. The opening of the withdrawal procedure is to be noted in the trade register.

(6) Commercial investment advisers have to undergo a regular training course for the activity as an investment broker from the registration of this activity into the business register, at the latest within three years at the latest. Proof of participation in the training shall be available at the location of the business for at least five years to the authority of the Authority at the time of the present inspection. In addition, a mere one-time breach of the obligation to undergo training may result in the trader no longer having the reliability required in accordance with § 87 (1) Z 3 GewO 1994. As training courses in this sense, at least forty hours of relevant courses shall apply to an independent training institution. The competent organisation of the Austrian Chamber of Commerce has to draw up a curriculum for the training content, which requires a confirmation from the Federal Minister for Economic Affairs, Family and Youth. The Financial Market Supervisory Authority (FMA) is to be given the opportunity to deliver an opinion within a reasonable period of time by the Federal Minister for Economic Affairs, Family and Youth before issuing the confirmation.

(7) Commercial investment advisers acting as securities intermediaries may perform the activities referred to in Article 2 (1) Z 15 WAG 2007 for no more than three companies. The commercial investment adviser acting as an investment agent shall clearly disclose to the contractual partner (s) the respective business person (s) in the case of each transaction, and shall draw attention to the registration in the register at the FMA. If no clear disclosure of the contractual business owner is made by the securities broker, all business owners registered in accordance with Section 4 (8) of the WAG 2007 shall be liable in a spirit of solidarity.

(8) Commercial Property Consultants are entitled to the activities of § 1 Z 20 WAG 2007 as a tied agent. Activities as an investment broker in accordance with § 2 para. 1 Z 15 WAG 2007 may not be carried out in this case.

(9) In the case of the registration of the commercial property advisory business (§ 94 Z 75), if the activity of the tied agent is exercised, in addition to the evidence in accordance with section 339 (3), the proof of the existence of the representative relationship . With the performance of the activities of the tied agent, the notifier may not start the business register until the date of entry.

(10) The trader shall immediately inform the commercial authority of the final representation of the business. Upon notification of the removal of the representative relationship, the Authority shall, without delay, initiate an de-cing procedure concerning the activities of a tied agent and, if a representative relationship is not immediately established, withdraw entitlement as a tied agent within two months at the latest. Section 361 (2) first sentence shall not be applied in this case. There is no suspensive effect on appeals against withdrawal of education. The opening of the withdrawal procedure is to be noted in the trade register.

(11) Commercial investment advisors must be involved in the acceptance and transmission of orders in connection with the predisposition to the investment in accordance with § 1 Section 1 (1) Z 3 of the Capital Market Act, KMG, BGBl. N ° 625/1991, § 44 WAG, BGBl. I No 60/2007, as amended.

(12) The trader entitled to pursue the business of investment advisers shall have, for their professional activities, a financial liability insurance with an insurance sum of at least 1,111,675 euros for each individual claim. and from 1,667,513 euros for all claims of a year. This does not apply to activities for which there is a liability insurance within the meaning of para. 4 or para. 9 or § 137c. The minimum amounts of insurance referred to above shall be increased or decreased as of 15.1.2013 and thereafter regularly every five years in accordance with the European Consumer Price Index published by Eurostat, on the basis of the following: next higher full euro amount will be available. The provisions of Section 117 (8) to (10) shall apply in accordance with the relevant provisions. "

5. § 136a following § § 136b to 136d are added:

" Securities Intermediary

§ 136b. (1) A commercial authorization for the business of the securities intermediaries is required for the exercise of the activities referred to in § 2 paragraph 1 Z 15 WAG 2007. Activities as a bound agent pursuant to § 1 Z 20 WAG 2007 may not be exercised.

(2) In addition to the documents in accordance with Section 339 (3), the registration of the business of the securities broker is to be connected with proof of the existence of a representative relationship. The applicant shall not begin to enter the trade register until the date of registration.

(3) The trader shall immediately inform the commercial authority of the final representation of the business. Upon notification of the removal of the last representative relationship, the Authority shall immediately initiate a decision-making procedure and, if a representative relationship is not immediately established, the right to enter the commercial sector shall, at the latest, be granted for two months. Section 361 (2) first sentence shall not be applied in this case. There is no suspensive effect on appeals against withdrawal of education. The opening of the withdrawal procedure is to be noted in the trade register.

§ 136c. Investment intermediaries must undergo training on a regular basis, at the latest within three years, from registration in the industrial register. Proof of participation in the training shall be available at the location of the business for at least five years to the authority of the Authority at the time of the present inspection. In addition, a mere one-time breach of the obligation to undergo training may result in the trader having the reliability required in accordance with the requirements of the Directive. § 87 (1) Z 3 GewO 1994 no longer possesses. As training courses in the above-mentioned sense, at least forty hours of relevant courses shall apply to an independent training institution. The competent organisation of the Austrian Chamber of Commerce has to draw up a curriculum for the training content, which requires a confirmation from the Federal Minister for Economic Affairs, Family and Youth. The FMA shall be given the opportunity to deliver an opinion within a reasonable period of time by the Federal Minister for Economic Affairs, Family and Youth before issuing the confirmation.

§ 136d. Investment intermediaries may perform the activities referred to in Article 2 (1), Z 15 WAG 2007, for no more than three companies. In the event of any transaction, the securities broker must clearly disclose to the contractual partner (securities customers) the respective business owners and point out the registration in the register at the FMA. If no clear disclosure of the contractual business owner is made by the securities broker, all business owners registered in accordance with Section 4 (8) of the WAG 2007 shall be liable in a spirit of solidarity. "

6. § 138 (4) deleted.

7. In § 337 (2), first sentence, after the expression "19 (5)," the expression "136a para. 6, 136c," inserted.

8. In § 365a (1) (12), after the expression " the point is replaced by a dash and the word sequence " Furthermore, a liability insurance pursuant to § 136a (12) and, where applicable, either the activity as a securities broker or a tied agent, the endorsement of the initiation of a withdrawal procedure as well as in the case of the commercial sector, must be entered. Immobilientreuhänders a liability insurance in accordance with § 117 (7), " inserted.

9. In § 365b (1) (9), after the expression " the phrase: " Furthermore, a liability insurance pursuant to § 136a (12) and, where applicable, the activity as a tied agent, the endorsement of the opening of a withdrawal procedure as well as in the trade of the real estate trader is to be entered. Liability insurance pursuant to § 117 (7), " inserted.

10. § 376 Z 1 and Z 2 are:

" 1 .

Who on the day before the entry into force of the Federal Law BGBl. I n ° 99/2011 the activity of a financial services assistant in accordance with § 2 (1) Z 14 Gewerbeordnung 1994 iVm § 2 Abs. 1 Z 15 WAG or of a tied agent pursuant to § 2 sec. 1 Z 14 Gewerbeordnung 1994 iVm § 2 Abs. 1 Z 15 WAG, in each case in the Constitution of the Federal Law BGBl. I No 60/2007, has exercised at least one year on the basis of the current legal situation up to two years after the entry into force of this Federal Law.

2.

Who on the day before the entry into force of the Federal Law BGBl. I n ° 99/2011 carries out the activity of an industrial property consultant, must conclude an asset liability insurance pursuant to § 136a (12) of the German Federal Law Gazette (Bundesgesetz BGBl) 1994. I n ° 99/2011, but no later than 1 April 2013, the Authority will be able to prove it. "

(11) The following paragraph 47 is added to section 382:

" (47) § 2 (1) Z 14, § 87 (1) Z 4b and 4c, § 94 Z 77, § 136a para. 3 to 13, § 136b to 136d with the title, § 337 para. 2, § 365a para. 1 Z 12, § 365b para. 1 Z 9 and § 376 Z 1 and 2 shall enter the following day at the earliest, however, at the earliest 1 September 2012, in force. Section 138 (4) shall enter into force with the day following the event, but at the earliest with 1 September 2012. "

Fischer

Faymann