Modification Of The Rehabilitation And Settlement Act, The Financial Market Stability Act, And Of The Abbag Law On The Occasion Of The General Comparison With The Free State Of Bavaria

Original Language Title: Änderung des Sanierungs- und Abwicklungsgesetzes, des Finanzmarktstabilitätsgesetzes und des ABBAG-Gesetzes aus Anlass des Generalvergleichs mit dem Freistaat Bayern

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127. Federal Law on the occasion of the General Comparison with the Free State of Bavaria, which amends the Sanation and Settlement Act, the Financial Stability Act and the ABBAG Act

The National Council has decided:

table of contents

Article 1

Amendment of the Sanation and Settlement Act

Article 2

Amendment of the Financial Stability Act

Article 3

Amendment of the ABBAG Act

Article 1

Amendment of the Sanation and Settlement Act

The Sanation and Settlement Act-BaSAG, BGBl. I n ° 98/2014, as last amended by the Federal Act BGBl. I No 117/2015, shall be amended as follows:

1. The entry in the table of contents is § 99:

" § 99. Application of stabilisation measures "

2. In § 2 Z 108, the point at the end is replaced by a stroke, and the following Z 109 is added:

" 109.

Stabilization measures: the instrument of state capital support (section 99 (3)) and the instrument of the temporary state takeover (Section 99 (4)). "

3. In § 74 (6), the expression "Use of a State Stabilization Instrument" by the expression "Application of Stabilisation Measures" replaced.

4. In § 74, paragraph 7, the expression "the use of state stabilization instruments" by the expression "the application of stabilisation measures" replaced.

5. In § 83 (2) (1) (1), after the word group "the FIMBAG," the word group "the ABBAG," inserted.

(6) The following paragraph 8a is inserted in § 84:

" (8a) A request for the opening of insolvency proceedings can only be submitted by the resolution authority. You are party to the reorganisation or bankruptcy proceedings. The managers of the dismantling unit shall be obliged to prepare and participate in the position of the insolvency application in relation to the resolution authority. "

7. § 99 with title reads:

" Application of stabilization measures

§ 99. (1) If it is essential to maintain financial stability, the Federal Minister of Finance may, within the framework of the provisions of this aid-legal authorisation of the European Commission, take stabilisation measures if a the conditions laid down in paragraph 2. This is only allowed as a last resort after the remaining resolution instruments have been considered as fully as possible to ensure financial stability and, where appropriate, have been used. The FMA, the resolution authority and the Oesterreichische Nationalbank must immediately inform the Federal Minister of Finance of any observations of principle in their respective spheres of competence. In addition, they shall immediately communicate observations of particular importance if they consider that the application of the resolution instruments would not be sufficient to achieve one of the objectives set out in paragraph 2 (1) (1) to (3).

(2) The application of stabilisation measures shall be permitted only if the conditions for settlement are fulfilled and, in addition, one of the following conditions is met:

1.

The Federal Minister of Finance, on the basis of statements by the Oesterreichische Nationalbank, the FMA and the resolution authority, notes that the application of the resolution instruments would not be sufficient to have significant adverse effects on to prevent financial market stability, or

2.

On the basis of an opinion of the resolution authority, the Federal Minister of Finance finds that the application of the resolution instruments would not be sufficient to protect the public interest, after the institution or company referred to in § 1 (1) (2) to (4) has already been granted an extraordinary liquidity assistance to the Central Bank; or

3.

The Federal Minister of Finance, on the basis of an opinion of the FMA and the resolution authority, shall, before the application of the instrument of the temporary state takeover (para. 4) note that the application of the resolution instruments would not be sufficient to protect the public interest after the institution or company has previously already provided state capital support by the institution pursuant to § 1 (1) (2) to (4). Instrument of equity support (par. 3),

where the opinions of the institutions referred to in Z 1 to 3 have to be given in writing the facts and possible options and, in the necessary haste, must be sent to the Federal Minister of Finance.

(3) The Federal Minister of Finance may apply the instrument of state capital support and participate in the recapitalisation of an institution or company in accordance with § 1 (1) (1) (2) to (4) by the institution or by the institution of the Providing capital in exchange for instruments of hard core capital, additional core capital or additional capital in accordance with § 1 (1) (1) (2) to (4) capital, each of which shall be subject to the requirements of the capital instruments as defined in Part 2 of the Regulation (EU) 575/2013 Application. If the instrument of State capital support is applied, the Federal Minister of Finance shall ensure that the participation is transferred to the private sector, as soon as the economic and financial circumstances are . In the exercise of the shareholder's rights, the Federal Minister of Finance has on an economic and professional administration of the Institute, company according to § 1 (1) Z 2 to 4 or other legal subject, in which the instrument of the state capital support shall be applied.

(4) The Federal Minister of Finance may temporarily take over an institution or company in accordance with Section 1 (1) (1) (2) to (4) (instrument of the temporary state takeover). For this purpose, the Federal Minister of Finance may issue one or more transfer orders in which the beneficiary is a commissioner of the Federal Minister of Finance or a company whose shares are wholly or mostly from the Federal Government shall be kept. If the instrument of the temporary state takeover is applied, the Federal Minister of Finance shall ensure that the Institute, companies according to § 1 (1) (1) (2) to (4) or any other legal entity are economically and professionally and will be transferred to the private sector as soon as the economic and financial circumstances permit.

(5) The FinStaG shall not apply to measures pursuant to paragraphs 3 and 4. However, in accordance with Section 2 (4) of the Financial Market Stability Act (BGBl), measures under (3) and (4) have been taken into account. I n ° 136/2008, to cover. "

8. In § 123 (5), the following sentence is added:

"Prescriptions of contributions and special contributions by the resolution authority shall be enforceable with maturity, even if they are subject to the principle and level of payment."

9. In § 126, the following paragraph 6 is added:

" (6) The FMA may, at the request of the Resolution Authority, under the delegated Regulation (EU) 2015/63, OJ L 327, 28.3.2002, p. No. 44., the Regulation shall determine the parameters to be taken into account in the context of the criteria set out in paragraph 5 for the assessment of contributions in 2015. "

10. In § 161, the following paragraph 4 is added:

" (4) The Federal Minister of Finance may, at the request of the resolution authority, make available financial resources for legal entities to which settlement measures pursuant to this Federal Law are applicable (measure of ensuring the Settlement objectives) if:

1.

ensuring that settlement targets are met and settlement measures are implemented;

2.

the settlement measure, which the resolution authority intends to implement, is best suited to achieving the settlement objectives;

3.

it is admissible under the European Union's legal framework for State aid;

4.

no decision of the resolution authority or of the committee is contrary to the use of this measure; and

5.

the settlement measure shall not be the result of financial resources from the Single Resolution Fund (Art. Article 67 of Regulation (EU) No 806/2014).

Measures pursuant to this paragraph shall be based on the total amount according to § 2 para. 4 Financial Market Stability Act, BGBl. I No 136/2008. The decision of the Federal Minister of Finance shall be notified to the resolution authority. "

11. § 167 receives the sales designation "(1)" and the following paragraph 2 is added:

" (2) The table of contents with regard to § 99, § 2 Z 109, § 74 (6) and (7), § 84 (8a), § 99 and § 126 (6) in the version of the Federal Law BGBl. I No 127/2015 will enter into force on 1 July 2015. "

Article 2

Amendment of the Financial Stability Act

The Financial Stability Act-FinStaG, BGBl. I n ° 136/2008, as last amended by the Federal Law BGBl. I No 37/2015, shall be amended as follows:

1. § 1 (1) Z 1 reads:

" 1.

Credit institutions pursuant to Section 1 (1) of the Banking Act (BWG), BGBl. No 532/1993, to which the provisions of the Sanation and Settlement Act (BaSAG), BGBl. I n ° 98/2014 are not applicable, and "

Section 1 (3) shall be replaced by the name "(4)" and the following paragraph 3 is inserted:

" (3) The Federal Minister of Finance is also authorized to take measures pursuant to § 2 (1) Z 1 to 6

1.

for entities in which he/she holds a share of 4 or 5 shares on the basis of measures pursuant to Section 2 (1) Z,

2.

for dismantling companies according to § 2 para. 4 ABBAG Act, BGBl. I No 51/2014 or

3.

for the ABBAG-dismantling management company of the federal government

, provided that such measures are permitted under the European Union's legal framework for State aid. "

3. In accordance with § 1, the following § 1a is inserted:

" § 1a. (1) The Federal Minister of Finance is authorized to conclude an agreement with the Free State of Bavaria, with which all the Bayerische Landesbank, Anstalt des öffentlichen Rechts, in connection with Hypo Alpe-Adria-Bank International AG (FN) 108415i), before domestic and foreign courts, either against the federal government, HETA Asset Resolution AG (FN 108415i), the Land of Carinthia, or the Kärntner Landes-und Hypothekenbank Holding (FN 321737v) claims up to 31 December 2015 at the latest will be finally cleaned up. To this end, the Federal Minister of Finance is authorized to pay a payment of 1,230,000,000 euros (in words: one billion two hundred and thirty million euros) to the Free State of Bavaria, as well as to the one from the Republic of Austria (Bund) Against the Bayerische Landesbank, Anstalt des öffentlichen Rechts, already legally asserted claims from the share purchase contract of 29 December 2009 to waive, if it is ensured that the Bayerische Landesbank, Anstalt public right, to the assertion of all possible claims in the Connection with Hypo Alpe-Adria-Bank International AG against

1.

the Republic of Austria (Federal Government),

2.

the Land of Carinthia,

3.

the Kärntner Landes-und Hypothekenbank Holding,

4.

all the other former partners of Hypo Alpe-Adria-Bank International AG,

5.

Assets that were or are the property of HETA Asset Resolution AG, as well as against the property of HETA Asset Resolution AG, and against

6.

the HETA Asset Resolution AG, to the extent that these claims exceed the amount of 2,400,000,000 euros (in words two billion four hundred million euros),

finally and irrevocably dispensed with. With the agreement, the Free State of Bavaria is obliged to reimburse the payment made to it by the Republic of Austria, provided the Bayerische Landesbank, Anstalt public law, in the context of the settlement of the HETA Asset Resolution AG Payments. The refund shall be limited to the amount paid by the Republic of Austria to the Free State of Bavaria.

(2) Refunds of the Free State of Bavaria from the agreement pursuant to Section 1 are in the Act of the Federal Republic of Germany pursuant to Section 7a (3) of the Stability Procurement Act-StabAbgG, BGBl. I n ° 111/2010, to set up funds for measures under FinStaG.

(3) Payments in accordance with Section 1 and Refunds pursuant to Section 2 are based on the total amount according to § 2 para. 4 Financial Market Stability Act, BGBl. I n ° 136/2008. '

4. In § 2 (1) the sentence is deleted "For measures according to Z 1 to 6, provision should be made for a market-based charge and interest."

5. According to § 2, the following § 2a is inserted:

" § 2a. (1) The Federal Minister of Finance is authorized to acquire debt securities in accordance with the public interests referred to in § 1 and thereby according to Art. 13 of the Federal Constitutional Law (B-VG), BGBl. No 1/1930, for the production or safeguarding of the macroeconomic balance as well as for sustainably ordered households can be contributed. Debt instruments within the meaning of this paragraph are receivables rights, which are based on at least a subordinated liability of a legal entity in accordance with § 1 and are secured directly by a liability ordered by the Land Act.

(2) The acquisition shall be initiated by the public announcement of tenders. An offer is to be made known for debt instruments, which establish liabilities of the same rank and for which the identh legal entities are directly obligated by the Land Act to be held liable. The tenders shall take due account of the economic performance of the legal entity and of the legal entities which are legally responsible for liability. In so far as the contractual conditions on which the debt is based provide for a certain form of contract notice, the public contract notice shall also be equivalent to the contract notice. The public notice must be provided with the following information on the offer:

1.

The exact designation of the debt securities covered by the offer and the rank of the binding nature, together with the name of the contractual basis, in each case,

2.

the compensation in return for the acquisition of the debt instruments and the amount of the debt incurred as a compensatory payment for the transfer of the liabilities carried out by law;

3.

the date of the maturity of the consideration and the compensatory payment to which it is due,

4.

the statement that an appropriate proportion of the difference between the consideration in return to Z 2, minus the compensation payment, and the payments from the settlement of the legal entity pursuant to § 1 from the acquirer to the holders of the the debt instruments which have accepted the offer shall be made within four weeks of a final conclusion of the settlement of the legal entity;

5.

the indication that all liability and security claims between the holder of the debt securities and the liable legal entities are transferred to the acquirer in the case of the acquisition,

6.

the period referred to in paragraph 3, which shall be available for acceptance of the offer, and the body which must accept the adoption within that period;

7.

Information on the manner in which the right to be made available on the debt is to be demonstrated,

8.

any other conditions which make the acquisition of the debt securities conditional on equal treatment for all holders of the debt instruments,

9.

the declaration by the legal entities which, in respect of the debt securities covered by the offer, are directly liable, on the basis of national laws, to agree to the offer and the compensatory amount fixed therein;

10.

the declaration by the legal entities liable, directly on the basis of national orders, for the debt securities covered by the offer that the compensatory payment contained in the offer is in accordance with their economic performance; and confirmation of the institution or auditor designated by law to verify the building of the legal entity, that the information contained in the statement of the legal entity is complete; and

11.

an explicit reference to the condition referred to in paragraph 4 and the legal consequences referred to in paragraph 5.

(3) The holders of the debt securities may, in accordance with a public notice, submit their comments on the offer within a period to be determined in the notice between four and eight weeks, and may declare in writing whether they accept or reject the offer. Adding a condition to the declaration of acceptance shall be invalid and shall invalidate the acceptance. A declaration may be withdrawn or amended by the end of the period.

(4) The acquisition of the debt securities requires that:

1.

each offer is accepted by at least one quarter of the total nominal value of the debt covered by the offer, and

2.

as a result, a qualified majority of at least two-thirds of the aggregate aggregate nominal value of the debt instruments covered by all tenders shall be approved.

Debt securities for which no declaration or an invalid declaration has been made within the time limit laid down in paragraph 3 shall be taken into consideration as a rejection of the offer. The acceptance of tenders by a qualified majority shall be made public in accordance with paragraph 2 of this Article. By the date of the contract notice, the acquisition of the debt securities of the qualified majority shall be effected and the legal effects associated with it under the provisions of this Federal Law shall enter into force.

(5) Following the entry into force of the conditions laid down in paragraph 4, the holders of debt securities may be liable to the legal entities directly liable for liability under a law to the outage which the holders of debt securities fail to pay in respect of the Legal entities in accordance with § 1 suffer, no longer demand. Enforcement by the acquirer and those holders who have rejected the offer shall only be allowed against the legal entities directly liable for liability under a law relating to liability, up to the amount of the compensatory payment, which shall be 2 (2) has been included in the offer. The legal effects shall also arise if a legal entity is authorized by the federal or state law to acquire the debt securities and the acquisition of the debt securities by the same is effected in accordance with the above provisions.

(6) At the request of the acquirer of the debt securities, a holder of a debt title or a legal entity committed to liability, the court in charge of the directly legally liable legal entity shall have a locally competent court in accordance with the Federal Act on the court proceedings in legal matters other than disputes (Non-Dispute Law-External StrG), Federal Law Gazette (BGBl). I n ° 111/2003, which, pursuant to paragraph 2, also publicly announcates that:

1.

the qualified majority of the holders required by the law has accepted the offer to acquire the debt,

2.

the holders who have rejected the offer shall continue to be entitled to a claim in the amount of that debt against the legal entity which is contractually bound by their respective debt instruments, and against those directly under a law relating to: Liability shall be entitled to the compensation paid in the offer provided for in paragraph 2 (2) (2) for the entire hand, and to the entire hand.

3.

in respect of the debt instruments for which the bid for the acquisition has been accepted by a qualified majority, the legal entities directly liable to liability under a liability law from their liabilities to the acquirer and to all other holders shall be exempted from liability for an outage which exceeds the compensation payment, whether the holders have accepted or have rejected the offer. "

6. § 3 (1) reads:

" (1) For all measures under this Federal Act, which constitute state aid, provision should be made for a charge and interest corresponding to the legal framework of the European Union for State aid. The liability in accordance with § 2 (1) Z 1 and 2 can only be made by written agreement. These agreements are subject to Section 83 of the Federal Budget Act 2013, BGBl. I n ° 139/2009 (BHG 2013), deviating regulations are permitted; in any case, provision should be made for rights within the meaning of Section 83 (2) (1) of the BHG 2013. "

7. The last sentence is deleted in Section 3 (2).

8. § 5 together with headline reads:

" Fees and charges

§ 5. (1) The legal transactions, writings and official acts required for the implementation of this Federal Act are governed by the federal law of the Federal Republic of Germany, the Federal Administrative Decorations and the Law of the Court of Law-GGG, BGBl. No 501/1984, regulated judicial and judicial administrative charges.

(2) In addition, the Federal Government and the Company pursuant to Section 3 (5) shall be exempt from payment of the fees regulated by the GGG in proceedings before the ordinary courts, which shall be subject to the affairs of the enforcement of this Federal Law. "

9. § 9 reads:

§ 9. With regard to the exemption of fees pursuant to the GGG 1984, as well as with regard to § 2 para. 2 concerning the implementation of the judicial resettlement procedure of the Federal Minister of Justice, with regard to the enforcement of this federal law, the Federal Minister for Justice Release of a regulation pursuant to § 2 para. 2 of the Federal Minister of Finance in agreement with the Federal Chancellor, with regard to § 2a of the Federal Minister of Finance and the Federal Minister for Justice in common, with the enforcement of the remaining provisions of the Federal Minister of Finance.

10. The following paragraph 3 is added to § 10:

" (3) § 1 para. 3 in the version of the Federal Law BGBl. I No 127/2015 will enter into force on 1 July 2015. "

Article 3

Amendment of the ABBAG Act

The ABBAG Law, BGBl. I No 51/2014, shall be amended as follows:

1. § 1 to § 3 together with the headings:

" ABBAG-degradation management company of the federal government

§ 1. (1) The Federal Government of the Federal Republic of Germany (ABBAG) shall become a member of the German Stock Corporation Act (ABBAG) in accordance with § § 239 ff Stock Corporation Act (AktG), BGBl. No 98/1965, converted into a limited liability company which is based in Vienna. The conversion shall be decided upon in a general meeting to be held without delay after the entry into force of this Federal Act. In this decision, the company is to be changed in the "ABBAG-dismantling management company of the federal government" (ABBAG), hereinafter referred to as the company. The amendments required in accordance with the provisions of this Federal Act must be made. The conversion shall be based on the balance sheet of ABBAG as at 31 December 2014. § 243 Stock Corporation Act is not applicable to the conversion. The majority of the shares in ABBAG have to be owned by the Federal Government. The administration of the shares by the name of the Federal Government is the responsibility of the Federal Minister of Finance, who has the right to exercise the rights of ownership of the Federal Government in the General Assembly.

(2) Unless otherwise specified in this Federal Act, the provisions of the GmbH Act, RGBl. No 58/1906, as amended, to be applied to the ABBAG.

(3) In so far as it is necessary for the operation and an adequate capital endowment of the company, the Federal Minister of Finance is authorized, as a kind of contribution in kind, to the shares which the Federal Government has in respect of the mining companies and legal entities in accordance with § 1 Financial Stability Law-FinStaG, BGBl. I n ° 136/2008, or the associated existing claims and liabilities or a cash deposit into the company.

Business object

§ 2. (1) The corporate object of the company shall consist of:

1.

the administration, including the utilization of shares and property rights of the federal government and the company, to mining companies and legal entities in accordance with § 1 FinStaG, and

2.

the provision of services and the taking of measures to ensure the best possible use of the assets and the liquidation of a mining company, or to safeguard the public interests referred to in § 1 of the FinStaG are available.

(2) For this purpose, the Company shall be responsible for this purpose in accordance with a statutory authorisation or an assignment by the Federal Minister of Finance,

1.

the acquisition and acquisition of shares and property rights in mining companies and entities in accordance with § 1 of the FinStaG,

2.

the exercise of property rights and the holding, management and exploitation of shares and property rights in mining companies and entities in accordance with § 1 FinStaG,

3.

the sale and transfer of shares and assets to mining companies and legal entities in accordance with § 1 of the FinStaG,

4.

the provision of services necessary for the best possible exploitation of the assets and the liquidation of a mining company, or for the protection of the public interests referred to in § 1 of the FinStaG; and

5.

the taking of measures to ensure the settlement of a mining company or a legal entity in accordance with § 1 FinStaG. The measures must be necessary in order to remedy a serious disturbance in the economy of Austria, to ensure the overall balance of the economy or to protect the Austrian economy, and to be appropriate, essential for the production of sustainably ordered households within the meaning of the agreement between the Federal Government, the Länder and the municipalities on an Austrian Stability Pact 2012-ÖStP 2012, BGBl. I No 30/2013.

(3) The above-mentioned tasks shall be included in the articles of association of the company. The Company shall carry out these tasks in accordance with the principles of economy, economy and expediency.

(4) Dismantling companies as referred to in paragraph 1 are

1.

the dismantling unit according to § 3 of the Federal Law for the Creation of a Degradation Unit (GSA), BGBl. I No 51/2014,

2.

Degradation units according to § 83 of the Sanating and Settlement Act (BaSAG), BGBl. I n ° 98/2014 and

3.

Mining companies according to § 162 BaSAG.

(5) The Federal Government shall ensure the financing of the administrative burden of the company in proportion to its shares in the company. The financing of measures pursuant to paragraph 2 shall be carried out in accordance with the legal authorisation or the assignment by the Federal Minister of Finance.

Appointment of the institutions

§ 3. (1) The management of the company shall be the responsibility of the general manager to be appointed by the General Assembly on a proposal from the Federal Minister of Finance in agreement with the Federal Chancellor. The provisions of the Recruitment Act, BGBl. I n ° 26/1998, shall apply. The first managing director is the board of directors appointed by contract with the company for the period of operation of the conversion pursuant to § 1.

(2) In the case of the company, a Supervisory Board shall be established. The more detailed rules must be laid down in the company's statutes. The part of the members of the Supervisory Board, which is not covered by employees, shall be ordered in agreement with the Federal Chancellor on a proposal from the Federal Minister of Finance. "

2. § 5 together with the title is:

" Fees and charges

§ 5. (1) The legal transactions, writings and official acts required for the implementation of this Federal Act are governed by the federal law of the Federal Republic of Germany, the Federal Administrative Decorations and the Law of the Court of Law-GGG, BGBl. No 501/1984, regulated judicial and judicial administrative charges.

(2) In addition, the Federal Government and the Company shall be exempt from payment of the fees regulated by the GGG in proceedings before the ordinary courts, which shall be subject to the affairs of the enforcement of this Federal Law. "

3. In accordance with § 6, the following § 7 shall be added together with the heading:

" Entry into

§ 7. § § 1, 2, 3 and 5 shall enter into force on 1 July 2015. "

Fischer

Faymann