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Finality Legislation Amendment Act 2010

Original Language Title: Finalitätsrechtsänderungsgesetz 2010

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91. Federal Act, which amalds the Federal Act on the Effectiveness of Billings in Payment and Securities Settlement Systems (Finality Act) (Finality Law Amendment Act 2010)

The National Council has decided:

Article 1

Amendment of the Finality Act

The Finality Act, BGBl. I n ° 123/1999, as last amended by the Federal Law BGBl. No 75/2002, shall be amended as follows:

1. In § 2 (1), after the word order "Agreement on" the phrase "the clearing, with or without the intervention of a central Contracting Party, or" inserted.

2. In Section 2 (1) (1) (1), after the order of the word "without co-calculation" the phrase "the operator of the system," inserted.

3. In § 2 para. 2 the word shall be "Transfer orders" by the word "Transfer orders" replaced and after the expression "accordingly," the phrase "as well as the system operator" inserted.

4. The following paragraph 5 is added to § 2:

"(5) An agreement between interoperable systems does not constitute a system."

5. § 3 (1) (1) and (2) are:

" 1.

Austrian credit institutions and credit institutions within the meaning of Article 4 (1) (1) of Directive 2006 /48/EC relating to the taking up and pursuit of the business of credit institutions, including the institutions referred to in Article 2 of that Directive;

2.

investment firms within the meaning of Article 4 (1) (1) of Directive 2004 /39/EC on markets in financial instruments, with the exception of the institutions referred to in Article 2 (1) of that Directive; "

6. § 7 (1) reads:

"(1) Participants shall be an institution, a central contracting party, a clearing house, a clearing house or a system operator."

7. § 7 (3) reads:

" (3) In the case of a system subject to domestic law, the Oesterreichische Nationalbank may, at the request of a participant in the individual case, authorise an indirect participant to be considered as a participant for the purposes of this Federal Act, if: this is justified from the point of view of systemic risk. Where an indirect participant is considered to be a participant in terms of systemic risk, the responsibility of the participant through which the indirect participant shall be paid shall be deemed to be the responsibility of the participant. This does not limit transfer orders to the system. "

8. § 8 reads:

" § 8. An indirect participant shall be an institution, a central contracting party, a clearing house, a clearing house or a system operator with a contractual relationship with a participant in a system for the execution of payment and/or payment services. Transfer orders, enabling the indirect participant to be able to pay, or Transfer orders to the system, provided that the indirect participant is known to the system operator. "

9. § 9 reads:

" § 9. Securities are all instruments listed in Annex I, Section C of Directive 2004 /39/EC. "

10. In Section 10 (1) (1) (1), after the phrase "a central bank" the phrase " , a central contracting party " inserted.

11. In § 13, the word "and" by the word "or" replaced.

12. In § 14, after the word order "(including credits)" the phrase " , including financial collateral arrangements within the meaning of Article 1 (4) (a) of Directive 2002/47/EC on financial collateral arrangements, inserted.

13. According to § 14, the following § § 14a, 14b and 14c are inserted:

" § 14a. A business day includes day and night accounting, and includes all events within the business cycle of a system.

§ 14b. Interoperable systems are two or more systems, the system operators of which have concluded an agreement with each other, which is to execute a payment or a payment of a number of payments. Transmission orders between the systems concerned.

§ 14c. System operator shall be the body or bodies responsible for the operation of a system in legal terms. A system operator may also act as a clearing house, a central contracting party or a clearing house. "

14. § 15 (1) reads:

" (1) Payment and transfer orders which are brought into a system pursuant to § 2 before a decision on the opening of insolvency proceedings concerning the assets of a participant shall not be extinguisher with the opening of the insolvency proceedings. The opening of the insolvency proceedings shall not affect the settlement of any settlement of such orders. A payment or transfer order may not be revoked by a participant in a system or by a third party with effect for the system at the time specified in the rules of the system. This shall also apply in the event of insolvency proceedings against a participant (of the system concerned or of an interoperable system) or against the operator of an interoperable system which itself is not a participant in the system. "

15. § 15 (2) reads:

" (2) Payment and transfer orders shall be entered into a system in accordance with § 2 after the date of the decision to open insolvency proceedings and shall be executed on the business day defined in accordance with the rules of the system, in the latter's The decision has been taken that the procedure will be opened only if the system operator can prove that he is legally binding and that he is legally binding on third parties at the time when the orders in question are have been irrevocable, neither knowledge of the opening of the insolvency proceedings nor Knowledge of this should have been. "

16. The following paragraphs 4 and 5 are added to § 15:

In the case of interoperable systems, each system shall establish, in its own rules, the date of introduction into the system in question, in order to ensure, where possible, that the rules of all the interoperable systems involved in this system are applicable in this respect: to each other. The rules of a system relating to the date of introduction into the system shall not be affected by the rules of the other systems with which it is interoperable, unless this is in the rules of all the interoperable systems involved expressly provided for.

(5) In the case of interoperable systems, each system shall establish, in its own rules, the date of the unrevocability in order to ensure, as far as possible, that the rules of all the interoperable systems involved shall be coordinated in this respect. . The rules of a system relating to the timing of the unrevocability shall not be affected by the rules of the other systems with which it is interoperable, unless this is expressly stated in the rules of all the interoperable systems involved. "

17. § 17 First sentence reads:

" The rights of system operators or holders of collateral provided to them under a system or an interoperable system and the rights of the central banks of the States Parties to the EEA Agreement or of the European Central Bank of securities that have been provided to them shall be subject to insolvency proceedings against

1.

the participant (of the system concerned or of an interoperable system),

2.

the operator of an interoperable system which is not a participant in the system;

3.

a Contracting Party to the central banks of the States Parties to the EEA Agreement or to the European Central Bank, or

4.

a third party to the security

shall not be affected. "

18. In § 18, after the word "Participants" the expression " , system operators " inserted.

19. § 21 reads:

" § 21. The system operator shall inform the Oesterreichische Nationalbank of who its participants, including any indirect participants, are, and shall notify it without delay of any change in this regard. A system operator who shall refrain from these communications shall be subject to an administrative surrender and shall be punished by the authority with a fine of up to EUR 30 000. "

20. In accordance with § 22, the following § 22a is inserted:

" § 22a. A system which was recognised as a system pursuant to § 2 para. 2 before 30 June 2011 shall continue to be deemed to be recognized for the purposes of this Act. A payment and transfer order that was introduced into a system before 30 June 2011, but which was not settled until after that date, will be considered a payment and transfer order within the meaning of this law. "

21. The following paragraph 3 is added to § 23:

" (3) § 2 para. 1, 2 and 5, § 3 para. 1 Z 1 and 2, § 7 para. 1 and 3, § 8, § 9, § 10 paragraph 1 Z 1, § 13, § 14, § 14a, § 14b, § 14c, § 15 para. 1, 2, 4 and 5, § 17, § 18, § 21 and § 22a in the version of the Federal Act BGBl. I No 91/2010 will enter into force on 30 June 2011. "

22. § 24 reads:

" § 24. This federal law lays down the provisions of Directive 98 /26/EC on settlement finality in payment and securities settlement systems (OJ L 327, 22.1.1998, p. No. 45-50), as amended by Directive 2009 /44/EC amending Directive 98 /26/EC on settlement finality in payment and securities settlement systems and Directive 2002 /47/EC on settlement of securities and securities Financial collateral in relation to linked systems and credit claims (OJ C 327, 28.4.2002 No. OJ L 146, 10.06.2009, p. 37). '

Fischer

Faymann