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118. Federal law amending the Banking Act
The National Council has decided:
table of contents
| Article 1 |
Implementation of European Union directives |
| Article 2 |
Amendment of the Banking Act |
Article 1
| This federal law is designed to implement Directive 2010 /xxx/EC of the European Parliament and of the Council of xxx. xxx 2010 amending Directives 2006 /48/EC, 2006 /49/EC as regards the capital requirements for the trading book and re-securitisations, and the supervisory review of remuneration policies (OJ L 376, 27.9.2006, p. No. L xxx of xx.xx.2010, p. x). |
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Article 2
Amendment of the Banking Act
The Banking Act-BWG, BGBl. No. 532/1993, as last amended by the Federal Law BGBl. I No 107/2010, shall be amended as follows:
1. In the table of contents, the " § 39a. Credit institution procedures for the evaluation of capital adequacy " the following entries are inserted:
| " § 39b. Principles of remuneration policies and practices |
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| " § 39c. Remuneration Committee " |
2. In the table of contents, the entry " § 102. Conversion and recovery of participatory capital " on " § 102. and § 102a. Conversion and recovery of participatory capital " and the entry " § 103. to § 103n. Transitional provisions " on " § 103. bis § 103o. Transitional provisions " changed.
3. In § 2, in Z 75 the point at the end is replaced by a stroke point and the following Z 76 is added:
| " 76. |
Voluntary pension payments: additional pension benefits granted to an employee by a credit institution at the discretion of the variable remuneration package. These services do not include any supplementary pensions to which there is a claim in the context of occupational pension provision. " |
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Section 22g (3) Final section reads as follows:
| " The chosen method is to be applied consistently. Both methods can only be applied simultaneously for the purposes of Section 21a (7) and Article 22b (9). In these exceptional cases, the credit institutions and the credit institutions of the FMA have at all times been able to demonstrate that the application of both methods is not misused in order to reduce the tax base in accordance with § 22 para. 2 and to does not lead to regulatory arbitrage. " |
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5. The following sentence shall be added to section 22h (2):
"This paragraph shall apply subject to the exceptions provided for in Article 22g (3)."
6. § 26 (4) reads:
Credit institutions shall, by means of binding internal rules, ensure the adequacy of the information disclosed, including the verification of the information itself and the frequency of its publication. They shall, in a formal procedure, determine how they comply with their disclosure obligations laid down in paragraph 7 and have rules to assess whether their publications for market participants understand risk profiles . If these publications do not contain comprehensible risk profiles for market participants, credit institutions shall, in addition to paragraph 7, publish the necessary information in addition. However, only those information which is essential, not secret and not confidential within the meaning of paragraph 5 Z 2 shall be published. "
7. § 26 (7) Z 1 reads:
| " 1. |
on their organisational structure, their own resources structure, their minimum own resources requirement, their risk management, their risk capital situation, securitisations, and their remuneration policies and practices and " |
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8. The following paragraph 9 is added to § 26:
" (9) The FMA shall use the information collected in accordance with paragraph 7 (1) (1) on remuneration policy to identify trends in this area and shall forward it to the Committee of European Banking Supervisors (CEBS). Likewise, the information on the number of employees of a credit institution which is in the income level of at least EUR 1 million and of its activities and the essential elements of the salary, the amount of the salary, the To collect bonus payments, long-term premiums and pension contributions and to submit them to CEBS. "
Section 39 (2) reads as follows:
" (2) Credit institutions shall have administrative, accounting and control procedures for the collection, assessment, management and supervision of banking and banking risks, as well as their remuneration policies and practices, which of the nature, extent and complexity of the banking operations being carried out. The administrative, accounting and control procedures have also led to the detection of banking and banking risks, as well as risks arising from remuneration policies and remuneration practices, which may arise. The organisational structure has to avoid conflicts of interests and conflicts of competence due to the business operation of appropriate structures and agreements. The appropriateness of these procedures and their application shall be reviewed at least once a year from the internal audit. "
10. According to § 39a, the following § 39b and heading is inserted:
" Principles of remuneration policies and practices
§ 39b. In the definition and application of remuneration policies and practices, including salaries and voluntary pension payments for staff categories, including management, risk purchasers, staff with control functions, and Staff members of the same remuneration group, such as management and risk purchasers, and whose activities have a significant impact on the risk profile, shall have the credit institutions in Annex to § 39b shall apply in the manner and in the extent to which their size, their internal organisation, the nature, scope and complexity of their operations, categories of staff, type and level of remuneration, and the impact of such operations are applicable their activity on the risk profile is appropriate. "
Section 70 (4a) reads as follows:
" (4a) Without prejudice to paragraph 4, the FMA has a credit institution or a group of credit institutions which has a capital requirement in excess of the minimum capital requirement in accordance with section 22 (1) in one for the limitation of the banking business and to impose appropriate and necessary levels of risk arising from remuneration policies and remuneration policies, if a credit institution or a group of credit institutions does not impose an appropriate limit on the risks associated with the banking system. banking and banking risks as well as 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 these risks by the credit institution or the credit institution group is not to be expected. 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. "
Section 70 (4c) reads as follows:
" (4c) Without prejudice to paragraph 4, the FMA shall arrange for the financial and solvency position of the credit institution to be put at risk:
| 1. |
for hybrid capital: |
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| a) |
suspension of the repayment of fixedterm instruments; |
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| b) |
the failure of the payment of interest or dividends. The credit institution may, in accordance with the requirements laid down in Article 23 (17) (4), replace such failure with core capital at least equal in height and quality; |
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| c) |
its conversion into paid-in capital according to § 23 (4a) (6) (6); |
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| 2. |
the limitation of variable remuneration to a percentage of balance sheet profit; |
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| 3. |
the use of net profits to strengthen the capital base. " |
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Section 75 (1) reads as follows:
" (1) Each credit institution whose claims and shareholders ' rights pursuant to Z 1 reach the sum of a total of at least EUR 350 000 or Euro equivalent in relation to a debtor shall report monthly to the Oesterreichische Nationalbank:
| 1. |
the amount of unweighted exposures, including interbank claims, in the form of assets, off-balance-sheet transactions according to Appendix 1 to § 22 of transactions pursuant to § 1 (1) (3), (4), (6), (8) and (12), (1) (2) (1) and (1) (2) (2) (3), (4) and (6) ZaDiG and derivatives according to Appendix 2 to § 22, as well as their exposure value, titrated claims existing against the debtor, the shareholding rights to be issued on the debtor and other credit derivatives according to Appendix 1 Z 1 lit. k to § 22; |
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| 2. |
the name, address and other information required for the safe identification of the debtor; |
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| 3. |
the amount and the exposure value of the other claims against the debtor in the form of assets and off-balance-sheet items in accordance with Appendix 1 to § 22; |
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| 4. |
the chosen approach to calculate the own funds for the credit risk, the rating system, the credit rating class and, depending on the approach used, the probability of default and the expected loss, and the weighted exposure of the credit institution to the credit risk. the amounts receivable, the claims under Z 1 and 3, the value of the collateral, the amount of the single-value adjustment, and overdue claims, as well as the significant risk characteristics of the securitisation positions; |
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| 5. |
the group of connected clients according to § 27 (11) (1) to (3) and (12), of which the debtor belongs; in this case, groups may, in accordance with § 27 (11) (1) (1), in which the lending credit institution is the parent company, as well as facts pursuant to Article 27 (11) (Z) 2 shall not be taken into account; the scope of the group shall be determined for the purposes of the Grand Credit notification under the Regulation of the FMA in accordance with paragraph 6, and may in particular be restricted to customers who are the creditor of the reporting institution; to the respective Member State of the group member. " |
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(14) The following paragraph 1a is inserted in § 75:
" (1a) Each credit institution group has securitisations (§ 2 Z 61) and credit derivatives (Appendix 1 Z 1 lit. k to § 22), the reference value of which is a securitisation, to be reported on a quarterly basis on a consolidated basis. This notification shall include those wholly or proportionally consolidated undertakings in respect of which the book or market value of the respective sum of the exposures arising from securitisation and credit derivatives, the reference value of which is a securitisation, shall be included in this report. amount of 10 million euros or euro equivalent, or the quotient of book or market values of the sum of these claims and the respective balance sheet total is greater than 5vH. "
15. § 75 (2) and (3) are:
" (2) In the case of financial institutions, paragraph 1 shall apply with the proviso that the reporting obligation pursuant to Z 1 in respect of shares and derivatives pursuant to Appendix 2 to § 22, Z 3 and Z 5 is deleted and the notification according to Z 4 only represents the value of the securities, the amount of the securities, the amount of the securities, the amount of the securities, the amount of the of the individual value adjustment, the credit rating class and the rating system.
(3) Contract Insurance Companies (1) shall be subject to the proviso that, within the framework of the notifications pursuant to Z 1, they must report only single loans, credit limits, profairs, titrated claims and credit derivatives and that they do not have a reporting obligation according to Z 3 to 5. "
16. In § 75 (5), after the word group "pursuant to Appendix 2 to § 22" the word group " and credit derivatives according to Appendix 1 Z 1 lit. k to § 22 " inserted.
17. In § 75 (6), after the word group "determining the classification of the types of receivables," the word group "Certainties and risk characteristics," inserted.
18. § 77c (2) last sentence reads:
" The joint decision shall be set out in a document with a full justification and shall be notified to the parent credit institution by the FMA as the consolidating supervisor. In accordance with the joint decision, a decision must be taken by the FMA as the consolidating supervisor and shall be notified to the parent credit institution. "
19. In § 103e Z 12 the date shall be: "31 December 2010" by the date "30th December 2011" replaced.
20. According to § 103n the following § 103o is inserted:
" § 103o. After the entry into force of the Federal Law BGBl. I No 118/2010 shall apply the following transitional provisions:
| 1. |
(to § 39b): The credit institutions and their respective bodies responsible for concluding contracts and operating agreements shall have the effect of concluding contractual agreements concluded by 31 December 2010 which meet the requirements of the Annex to § 39b does not correspond, to the extent permitted by law, on the basis of an objectively comprehensible legal evaluation of the legal situation and taking into account the concrete success prospects. |
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| 2. |
(to § 75): Regulations of the FMA to § 75 in the version of the Federal Law BGBl. I n ° 118/2010 can be taken from the presentation of the Federal Law BGBl. I No 118/2010 the following day. They shall enter into force at the earliest on 30 June 2011 with respect to Section 75 (1a), otherwise at the earliest with 30 April 2011. " |
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21. § 105 (5) reads:
" (5) Where reference is made in this Federal Act to Directive 2006 /48/EC or Directive 2006 /49/EC, unless otherwise provided, the following text shall be applied in each case:
| 1. |
Directive 2006 /48/EC on the taking up and pursuit of the business of credit institutions (OJ L 177, 30.4.2006, p No. 1), as amended by Directive 2010 /xxx/EC amending Directives 2006 /48/EC, 2006 /49/EC as regards capital requirements for the trading book and re-securitisations, and with regard to the supervisory authorities of the Member States of the European Union Review of remuneration policies (OJ C 327, 22.4. No. L xxx of xx.xx.2010, p. x) and |
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| 2. |
Directive 2006 /49/EC on the capital adequacy of investment firms and credit institutions (OJ L 196, 27.7.2006, p. No. 201), as amended by Directive 2010 /xxx/EC amending Directives 2006 /48/EC, 2006 /49/EC as regards capital requirements for the trading book and re-securitisations, and with regard to the supervisory authorities of the Member States of the European Union Review of remuneration policies (OJ C 327, 22.4. No. L xxx of xx.xx.2010, p. x). " |
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22. The following paragraph 70 is added to § 107:
" (70) The table of contents with regard to § § 39b and 39c, 102a and 103o, § 2 Z 75 and 76, § 22g para. 3, § 22h para. 2, § 26 para. 4, 7 Z 1 and para. 9, § 39 para. 2, § § 39b and 39c along with the headings, § 70 para. 4c, § 77c para. 2 last sentence, § 103o, § 105 Paragraph 5 and Annex to § 39b in the version of the Federal Law BGBl. I No 118/2010 will enter into force 1. Jänner 2011 in force. Section 75 (1), (2), (3), (5) and (6) in the version of the Federal Law BGBl. I No 118/2010 will enter into force on 30 April 2011. Section 75 (1a) in the version of the Federal Law BGBl. I No 118/2010 will enter into force on 30 June 2011. Section 70 (4a) in the version of the Federal Law BGBl. I No 118/2010 shall enter into force on 31 December 2011. '
23. According to Appendix 3 to § 22, the following Appendix to § 39b is inserted:
" Asset
on § 39b
PRINCIPLES OF REMUNERATION POLICIES AND PRACTICES
| 1. |
Remuneration policy is compatible with sound and effective risk management, does not encourage it and does not encourage the taking over of risks beyond the level tolerated by the credit institution. |
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| 2. |
The remuneration policy is in line with the business strategy, the objectives, values and long-term interests of the credit institution and contains provisions to avoid conflicts of interest. |
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| 3. |
The Supervisory Board or a Board of Supervisors of the Credit Institute, which is otherwise responsible under the Law or Articles of Association, approves the general principles of remuneration policy, reviews it regularly and is responsible for its implementation. In the case of credit institutions in which a remuneration committee is established in accordance with § 39c, these tasks may be exercised by the remuneration committee. |
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| 4. |
Within the framework of a central and independent internal review, it shall be determined at least once a year whether the remuneration practice is determined by the supervisory board or by a supervisory body otherwise competent pursuant to the law or the statutes. Remuneration policy has been implemented. |
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| 5. |
Employees who hold control functions must be independent of the business units they control, have sufficient powers and be paid in accordance with the achievement of the objectives assigned to their tasks, and Regardless of the performance of the business units controlled by them. |
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| 6. |
The remuneration of senior management in risk management and compliance functions shall be immediately reviewed by the Compensation Committee. |
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| 7. |
In the case of performance-based remuneration, the overall assessment is based on the performance of the employee and his department as well as on the overall result of the credit institution, and in the evaluation of the individual performance. financial as well as non-financial criteria are taken into account: |
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| a) |
In order to ensure that the assessment is based on the longer-term performance and that the actual payment of performance-based remuneration components is distributed over a period of time, which is the underlying business cycle of the enterprise The performance assessment shall be carried out in a multi-annual framework. |
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| b) |
The total variable remuneration does not limit the credit institution's ability to improve its own resources. |
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| c) |
A guaranteed variable remuneration is only granted in exceptional circumstances in connection with the recruitment of new employees and is limited to the first year. |
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| d) |
Credit institutions, the state support measures based on the provisions of the Financial Markets Stability Act (FinStaG), BGBl. I n ° 136/2008, or in accordance with Section 1 (4) of the Interbank Market Strengthening Act (IBSG), BGBl. I n ° 136/2008, have also complied with the following principles: |
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| aa) |
Should the maintenance of a solid own resources base and a timely termination of such government support measures not be given, the variable remuneration shall be limited to a percentage of the net profit. |
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| bb) |
Credit institutions have a way of structuring their remuneration policies in such a way that they are geared to sound risk management and long-term growth. Where necessary, these measures include, inter alia, the introduction of ceilings for the remuneration of business managers. |
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| cc) |
Business managers shall not be granted variable remuneration, provided that this is not inappropriate. |
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| 8. |
In the case of total remuneration, fixed and variable components are in an appropriate proportion, whereby the fixed remuneration is so high that a flexible policy with respect to the variable remuneration components is possible without restriction and also to be completely waived for the granting of variable remuneration. |
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| 9. |
Payments in connection with the early termination of a contract reflect long-term success and are designed to not reward failure. |
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| 10. |
The measurement of success by which variable remuneration components or pools of variable remuneration components are calculated shall include a correction for all types of ongoing and future risks and shall bear the cost of the requested Own resources and liquidity are taken into account. The distribution of variable remuneration components within a credit institution also takes into account all types of ongoing and potential risks. |
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| 11. |
A significant proportion, which is at least 50 vH of the variable remuneration components, consists of an appropriate ratio: |
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| a) |
shares, equivalent shareholdings as a function of the legal form of the credit institution concerned, shares linked to instruments or equivalent incapable payment instruments in the case of non-listed credit institutions, provided that the , and these instruments are securable and negotiable. |
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| b) |
Convertible capital capable of conversion in accordance with Section 23 (4a) Z 6, which is capable of sufficiently reflecting the creditworthiness of a credit institution to the extent that this is appropriate. |
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| The instruments mentioned are subject to an appropriate policy of restitution, which is designed to align the incentives with the longer-term interests of the credit institution concerned. FMA may impose restrictions on the nature and design of such instruments, or, where appropriate, prohibit certain instruments. The above principles are to be applied to both the share of variable remuneration set out in accordance with Z 12 and the proportion of variable remuneration not repaid. |
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| 12. |
A significant proportion of the variable remuneration, which is at least 40 vH, shall be returned for a period of at least five years and shall be properly based on the nature of the business, its risks and the activities of the relevant parties. Employees aligned. The remuneration to be paid under the provisions for the provision of compensation payments shall not be acquired more quickly than is determined on a proportional basis. If the variable component makes a particularly high amount, the payout of at least 60 vH of the amount shall be returned. The duration of the remission period shall be in accordance with the business cycle, the nature of the business, its risks and the activities of the employee concerned: |
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| a) |
The acquisition or payment of the variable remuneration, including the repaid share, may be effected only if, in view of the financial situation of the credit institution, it is generally sustainable and, after the performance of the relevant Business department and person is justified. Without prejudice to the general principles of civil and labour law, the entire variable remuneration shall be substantially limited if the financial or earnings situation of the credit institution is deteriorated or negative. Account shall be taken of current charges as well as reduced disbursements of recently earned amounts, including those based on the Malus and Withdrawal Agreements. |
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| b) |
The policy on voluntary pension payments is in line with the business strategy, objectives, values and long-term interests of the credit institution. Where an employee leaves the credit institution before retirement, voluntary pension payments shall be made by the credit institution for a period of five years in the form of instruments within the meaning of Z 11 lit. a and b withhold. In the event of a retirement of an employee, this voluntary pension payment shall be in the form of instruments within the meaning of Z 11 lit. a and b are to be paid and are subject to a five-year return period. |
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| c) |
Employees are required not to resort to any personal hedging strategies or insurance and liability related insurance in order to undermine the orientation of the risk behaviour as laid down in their remuneration regulations. |
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| d) |
Variable remuneration is not paid by means of instruments or procedures which permit circumvention of the requirements of this Federal Law. |
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| 13. |
The said principles shall be applied by credit institutions at the level of the parent undertaking, its subsidiaries and branches also in offshore financial centres. " |
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Fischer
Faymann
