107. Federal law that modifies the stock market law, the insurance supervision law, the securities supervision Act 2007 and the pension fund law
The National Council has decided:
By this federal law will be
1. Directive 2005/60/EC of the European Parliament and of the Council of 26 October 2005 on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing (OJ No. L 309, 25.11.2005, p. 15) and the directive 2006/70/EC of 1 August 2006 laying down detailed rules for Directive 2005/60/EC of the European Parliament and of the Council as regards the definition of "politically exposed person" and the technical criteria for simplified due diligence as well as the exemption in cases where only occasional or very limited financial transactions be made (OJ No. L 214 of the 04.08.2006, p. 29), implemented and 2. the measures necessary for the implementation of Regulation (EC) No 1781/2006 of the European Parliament and of the Council of 15 November 2006 on information on the payer accompanying transfers of funds (OJ No. L 345 of the December, p. 1) created.
Amendment to the Stock Exchange Act
The Stock Exchange Act 1989 - Austrian Stock Exchange Act, Federal Law Gazette No. 555/1989, as last amended by Federal Law Gazette I no. 60/2007, is amended as follows:
1. in article 3, paragraph 1 Z 8 replaces the phrase "a judicial preliminary investigation" by the phrase "an investigation" and the phrase "has been launched" "running" the phrase.
2. § 25 paragraph 5 first and second sentence read:
"The suspicion or the legitimate reason to believe that an already carried out, an ongoing or upcoming transaction is money laundering or the financing of terrorism, gives the Exchange operating company, it has the Authority (§ 6 SPG) thereof immediately to inform and to refrain from, any further processing of the transaction until the clarification of the facts of the case unless the danger" , that delay the transaction makes it difficult to determine of the facts of the case or prevented. "This also applies, if the suspect or the reasonable grounds to suspect that the party objectively involved in transactions, the money laundering (§ 165 StGB - involving asset components, stemming from a criminal act of the perpetrator himself) or the financing of terrorism serve."
3. in § 25 paragraph 6 is inserted after the word "Money laundering" the phrase "or of financing of terrorism".
4. § 25 paragraph 7, first sentence, is:
"The authorities (§ 6 SPG) is empowered to order that an ongoing or upcoming transaction in which the suspicion or the legitimate reason to believe is that it is money laundering or the financing of terrorism, is omitted or is postponed for the time being."
5. in section 25, paragraph 7, fourth movement is the phrase "the issuing of an injunction after Section 144a of the Ccrp" by the phrase "a seizure pursuant to §§ 109 No. of 2 and 115 paragraph 1 Z 3 StPO" replaced.
6. in article 25, paragraph 7, Z 2 is replaced by the phrase "Seizure pursuant to §§ 109 No. of 2 and 115 paragraph 1 Z 3 StPO" the phrase "Issuing an injunction according to Section 144a of the Ccrp".
7. in article 25, paragraph 9, the expression is "§ 84 StPO" by the expression "§ 78 StPO" replaced.
8 § 44 par. 2 No. 1 is:
"1. If criminal proceedings referred to in paragraph 1 has been instituted against the Börsesensal or against him as a defendant or defendants (§ 48 para 1 Nos. 1 and 2 StPO) criminal proceedings will be conducted and the nature or the seriousness of the allegations is likely to affect the trustworthiness of the stock exchange scythes ales, or threatens a danger for the people who take the mediation activity of the Exchange scythes ales claim;"
9 paragraph 44 paragraph 4:
"(4) the Prosecutor has to inform the FMA by an investigation into a Börsesensal and its termination by setting or to withdraw from the tracking (§§ 194 and 208 para 4 StPO);" In addition the Court has to notify the FMA of the termination and the outcome of the criminal proceedings."
10 § 48 h is as follows:
§ 48 h. The main proceedings for misuse of inside information is the regional court for criminal matters in Vienna. In the case of § 48 of para 1 b 2nd case is responsible for the trial and verdict precipitation. the District Court as jurymen's Court"
11 § 48i is as follows:
§ 48i. (1) has the public prosecutor's Office to the enlightenment of the suspicion of misuse of inside information basically investigations within their areas of responsibility according to section 48q to task with the FMA; in this case is the FMA in the services of the criminal justice (art. 10 par. 1 Z 6 B-VG) has been working.
(2) on the orders of the public prosecutor's Office the police but has to intervene if this on the basis of the carried out investigations, in particular their nature and scope, is appropriate. This is the case in particular when performing searches, seizures, confiscations and arrests. The same applies if the FMA can not intervene or the to clarifying facts could meet the facts of any other court offence.
(3) the FMA has to report Vienna, the public prosecutor's Office in writing or by way of automation-supported data processing if and as soon as it becomes aware of the suspicion of abuse of inside information by a certain person. -She investigations for immediate clarification of the facts and fact suspicion without prejudice to the exercise of their powers according to section 48q - perform only in so far, as it is entrusted by the public prosecutor's Office.
(4) the FMA has to report the public prosecutor's Office without undue delay on the progress and result of the investigations carried out by her. The judicial police is tasked with investigations, the FMA shall be given the opportunity to participate in the investigation. Urgent acts should be done however at the imminent danger is the FMA without undue delay of the investigation of the criminal investigation department to communicate and their opportunity to gain knowledge of their results.
(5) Furthermore the provisions concerning administrative criminal proceedings apply to the procedure for the official acts of the FMA, unless otherwise specified in the provisions of Ccrp."
12 section 48j is eliminated.
13 § 48 k paragraph 1 reads:
"(1) the FMA the position of said comes to pre-trial, in which she was not tasked with investigations, as well as in the main and in the appeal proceedings because of misuse of inside information."
14 § 48 k para 2 first sentence reads:
"Except for the rights of the victim and of the said of the Subsidiaranklägers, the FMA has the following rights:"
15 § 48 k para 2 No. 3 is:
"3. the timing of holding negotiations (paragraphs 175 and 176 StPO), the release of the accused and the timing of hearings in appeal is to inform you," 16 § 48 k para 2 No. 4 is the point replaced by a comma at the end and added following Z 5:
"5. the inspection (§ 68 StPO) may be denied or restricted."
17. in article 48 k para 3 is the expression of "(§ 46 Abs. 3 StPO)" by the expression "(§ 72 Abs. 2 und 3 StPO)" replaced.
18 paragraph: 48m
section 48 m. The Prosecutor sets the investigation on suspicion of misuse of inside information or she resigns from the pursuit of such an Act, it shall notify the FMA it (§§ 194 and 208 para 4 StPO); In addition the Court has to notify the FMA of the termination of the criminal proceedings."
19 § 48n is as follows:
§ 48n. Before a release after the sections 200 para 4, 201 para of 4 or 203 paragraph 3 StPO has the FMA to hear the public prosecutor or the Court. Has the public prosecutor's Office from the persecution of the misuse of inside information apart and set the investigation, so the FMA is entitled to request the continuation of the investigation StPO § 195."
20. in article 48p, paragraph 1, the phrase "Prosecutor at the Office of the public prosecutor's Office" is replaced by the word "Subsidiarankläger".
21 Article 48q para 1 No. 4 is:
"results taken 4 to the Act of access to data of a message delivery and monitoring of messages (section 134 Z 5-145 StPO) to see and to get copies of them (article 140, paragraph 3 StPO)."
22 paragraph 87 paragraph 4:
"(4) the half-yearly report has at least important events during the first six months of the financial year and their impact on the condensed financial statements to specify; He has also to describe the major risks and uncertainties in the remaining six months of the fiscal year. In the half-year management report the issuers of shares have at least the following transactions as essential businesses to disclose close to related companies and persons:
Transactions with related companies and persons, which took place during the first six months of the current fiscal year and that much, affect the financial position or results of operations of the company during this period
2. all changes in the transactions with related companies and persons, which were set out in last year's financial report and that much could affect the financial position or results of operations of the company during the first six months of the current fiscal year.
The issuer of shares is not obliged to draw up consolidated accounts, so he has to disclose at least the transactions with related companies and persons, which in article 43 paragraph 1 point 7 point (b) of Directive 78/660/EEC referred to."
23 27 the following paragraph is added to § the 102:
"(27) § 3, § 25 paragraph 5 to 7 and § 9, § 44 par. 2 Nos. 1 and para 4, § 48 h 48i §, § 48 k, § 48m, 48n §, § 48p, § 48q and § 87 par. 4 amended by Federal Law Gazette I no. 107/2007 into force on December 15, 2007." section 48j occurs at the end of the 14th December 2007 override."
Amendment of the insurance supervision Act
The insurance supervision Act - VAG, BGBl. No. 569/1978, as last amended by Federal Law Gazette I no. 56/2007, is amended as follows:
1 § 1 paragraph 2 fourth sentence reads as follows:
"This does not apply to reinsurance contracts or if the risk in accordance with § 2 No. 89/1993, is situated in the domestic No. 2 of the Federal Act on international insurance contract law for the European economic area, Federal Law Gazette."
2. in Article 1a, paragraph 1 the reference is "the §§ 18a, 18B and 18 c" with the reference "the sections 18 b and 18 c" replaced and after the reference "§ 86 m para. 2 and 3," the reference "paragraphs 98a and 98 h," adds.
3. in section 2, paragraph 2 No. 1, § 107b para 1 No. 2, section 118i para 1 No. 5 and § 131 Z 1 is the phrase "§ 11a" by the phrase "section 11 b" replaced.
4. § 11a 11b is named section. 11a the following paragraph with heading shall be inserted after article 11:
'Special provisions for institutions by insurance companies
section 11a. (1) members of the Board, the Board of directors or Executive Directors can take at the earliest work as Chairman of the Supervisory Board within the same company after the expiry of a period of two years after the termination of their function, in which they were previously engaged in this executive function.
(2) a member of the Board, the Board of directors or a Director violates subsection 1 has a function as Chairman of the Supervisory Board, so he is not elected Chairman.
(3) without prejudice to other provisions of the bundesgesetzlicher the activity of a Chairman of the Supervisory Board at an insurance company may exercise only, who constantly meets the following requirements:
1. There is no reason of exclusion in the sense of § 13 para 1 to 3, 5 and 6 GewO 1994 and more than the capacity of the Chairman of the Supervisory Board or an other entity than a natural person, decisive influence is the Chairman of the Supervisory Board on its business or is said to, no bankruptcy was opened, as part of the bankruptcy process to complete of a compulsory compensation occurred in , meets the; the same applies if a so similar offence abroad was carried out;
2. the Chairman of the Supervisory Board has overall economic conditions and there are no facts which doubts arise on his personal reliability for the exercise of its function as the Chairman of the Supervisory Board;
3. the Chairman of the Supervisory Board is technically suitable and has the experience necessary for the exercise of its function; professional competence presupposes adequate knowledge in the area of operation and the accounting of an insurance company for the relevant insurance company;
4. against the Chairman of the Supervisory Board, which is not an Austrian citizen, no exclusion reasons as Chairman of the Supervisory Board within the meaning of no. 1 to 3 are in the State whose citizenship he holds. This is by the insurance supervisory authority of the home country to confirm; can however such confirmation not obtained are the respective Chairman of the Supervisory Board has to make this believable, to certify the absence of the above exclusion reasons and to make a statement, whether the above exclusion reasons exist.
(4) the outcome of the election for the Chairman of the Supervisory Board is to bring the FMA in writing within two weeks under certificate of the requirements referred to in paragraph 3. At the request of the FMA, the Court of first instance in the proceedings except disputes appointed to exercise the jurisdiction in commercial matters has to revoke the election of the Chairman of the Supervisory Board, if it does not comply with the requirements referred to in paragraph 3. The request is within four weeks of the delivery of the result of the election to make. The function of the Chairman of the Supervisory Board is suspended until a final decision of the Court. A Chairman of the Supervisory Board is member of the Board, the Board of directors or Managing Director of an insurance undertaking established in a Member State, to the FMA can assume Z 1 to 4 compliance with the conditions referred to in paragraph 3, unless their otherwise known.
(5) ABS 1 to 4 only apply to insurance companies, whose premiums written premiums of the whole on the basis of the concession of operated business at the time of the election exceed 500 million euros."
5. § 17b, paragraph 2 shall be added the following records:
"She has about the testing areas and main findings on the basis of performed tests to report quarterly, the Chairman of the Supervisory Board, or otherwise by law or the statutes relevant supervisory organ of the insurance undertaking, as well as the Audit Committee. The Chairman of the Board of supervisors has to report this in the next following session of the Board of supervisors of the significant audit findings and the test areas."
6. in section 17c paragraph 1 b is the phrase "domiciled in a Contracting State" the phrase "and of reinsurance companies, which possess a domestic licence," inserted after.
7. in article 18, paragraph 4, the word "Insured" in the first sentence is replaced by the word 'Policyholders'.
8 § 18a is eliminated.
9. in article 22, paragraph 3 the following sentence is added:
"The FMA has the fee with the consent of the Federal Minister of finance by regulation to establish and can, as far as this is necessary, in this context, further details about the payment and refund of the fee rules."
10. in Article 24a, paragraph 1, the word "Insured" in the first sentence is replaced by the word "Insured".
11. in article 73f, par. 5, 'stated amount' is in the first sentence after the phrase
the phrase "and in article 41 paragraph 1 of Directive 2005/68/EC to article 40 paragraph 2 of this Directive shall amount"
12. in section 82 para 6 of reference 'and 18a"reference"and 98a and 98 h"is replaced by.
13. in article 82 the following paragraph 4 is added b:
"(4) in insurance companies of any legal form, whose premiums written premiums of the whole on the basis of the concession of operated business exceed 750 million euro or which have issued transferable securities that are admitted to trading on a regulated market in accordance with § 1 para 2 BörseG, an Audit Committee is by the Supervisory Board, or otherwise by law or the statutes relevant supervisory organ of the insurance company to order, which is composed of at least three members of the Board of supervisors. A person must belong to this that has special knowledge and practical experience in operation and in the accounting of an insurance company and coverage in ways appropriate for the relevant insurance companies (financial expert). Must not be Chairman of the Audit Committee or financial expert, who was Executive Director, officer or auditor of the company in the last three years Member of the Board, the Board of Directors, or has signed the auditor's report. The tasks of the Audit Committee include:
1. the monitoring of accounting;
2. the monitoring of the effectiveness of the internal control system;
3. the monitoring of audit and audit;
4. the inspection and monitoring the independence of the Auditor, in particular with regard to the additional services provided to the audited entity;
5. the examination and preparation for determining of the financial statements, the proposal for profit distribution, management report and, where appropriate, of the corporate governance report as well as the reimbursement of the report on the examination results to the Board of supervisors;
6. where appropriate, the audit of the consolidated financial statements and management report as well as the reimbursement of the report on the check results to the Board of supervisors of the parent company;
7. the preparation of the proposal of the Board of supervisors for the selection of the auditor."
14. under article 98, the following eighth major piece is inserted:
"Eighth major piece
PREVENTION OF MONEY LAUNDERING AND FINANCING OF TERRORISM
Scope of application and definitions
section 98a. (1) the provisions of this main piece apply to insurance undertakings in the context of the operation of the life insurance.
(2) following definitions shall apply for the purposes of this main piece:
1. politically exposed persons: those natural persons who hold important public offices or have not exercised until a year ago and their immediate family members or them are known to be closely related persons;
a) "Important public offices" are this connection the following functions: aa) heads of State, heads of Government, Ministers, Deputy Ministers and Secretaries of State;
BB) members of Parliament;
CC) members of Supreme courts, constitutional courts or other high-level institutions of Justice, whose decisions, by exceptional circumstances apart, no appeal can be lodged against
DD) members of courts of Auditors or of the Board of Directors of central banks;
EE) Ambassador, Chargé d'affaires and high-ranking officers of the armed forces;
FF) members of the administrative, management or supervisory bodies of State-owned enterprises.
Sublit. AA-ee also apply to positions at Community level and for positions in international organizations.
b) considered "immediate family members": aa) spouse;
BB) the partner who is the spouse under national law;
CC) children and their spouses or partners who are assimilated to the spouse under national law;
c) the following persons are considered "known to be closely related persons": aa) is any natural person with an important public office holder known to common economic owner of legal entities, such as, for example, foundations or trusts or maintains an other business near close to the important public office holder;
BB) any natural person, the sole economic owner of legal entities, such as, for example, foundations or trusts is, which were known to be actually built for the benefit of the owner of an important public office.
2. business relationship: is a business relationship that is established by the conclusion of an insurance contract, the acquisition of an insurance contract, or the assignment of a claim under an insurance contract between the insurance company and the customers.
3. beneficial owner: are the natural persons, the customer ultimately is owned or under their control. The term of beneficial owner includes in particular: a) companies: aa) the natural persons, in whose ownership or under their control any legal entity directly or indirectly hold or check a sufficient proportion of shares or voting rights of the legal person, including is ultimately about investments in the form of bearer shares, which is not a company quoted on a regulated market , is subject to the disclosure requirements corresponding to Community law or other equivalent international standards; a proportion of 25% plus one share is considered sufficient, thus meets this criterion;
BB) the natural persons who otherwise exert control over the management of a legal entity;
b) in the case of legal entities, such as, for example, foundations and trusts, funds, manage or distribute: aa) where the future beneficiaries already determined were, those natural persons who are beneficiaries of 25% or more of the benefits of a trust or a legal person;
BB) provided that the individuals who are beneficiaries of the trust or the legal entity, were not yet determined, the Group of persons in whose interest mainly the trust or the legal person is effective or was built;
CC) the natural persons who exercise control over 25% or more of the assets of a trust or a legal person.
4. customer: are the policyholder and the beneficiary of the insurance contract. The beneficiary is the one just keep getting kicked off the claims arising from an insurance contract.
Due diligence obligations to combat money laundering and terrorist financing
Article 98 to determine the identity of a customer b. (1) who have insurance companies and check:
1. before establishment of a business relationship;
2. before performing any all transactions not covered by the scope of a business relationship, the amount of which amounts to at least EUR 15 000 or euro equivalent, regardless of whether the transaction in a single operation or in several operations, between which a connection is clearly given, is made the amount before the beginning of the transaction is unknown, the identity is then to determine, as soon as the amount is known and is determined that he is at least 15 000 euro or euro equivalent;
3. If the suspicion or the legitimate reason to believe exists, that the customer of a terrorist group (§ 278b of the criminal code, Federal Law Gazette No. 60/1974 [StGB]) belongs to or that the customer objective involved in transactions, the money laundering (§ 165 StGB - involving asset components, stemming from a criminal act of the perpetrator himself) or the financing of terrorism (§ 278d StGB) serve;
4. when doubts about the veracity or adequacy of previously obtained customer identification data.
The identity of a customer is to be determined by personal template of his official photo ID. Issued documents, which are provided with a non-replaceable recognizable head image of the person concerned, and contain the name, date of birth and the issuing authority and the signature of the person is deemed to be official photo ID in this sense by a State Agency. Travel documents of strangers the full date of birth then not in the travel document must be included, if this complies with the law of the issuing State. For legal entities and natural persons not intrinsically entitled is to determine the identity of the authorized natural person by presenting their official photographic identification document and to check the power of representation on the basis of appropriate certificates. The identity of the legal person has to take place, which are available in accordance with the standard of Justice applicable at the seat of the legal person on the basis of valid documents. C and 98e must be adhered to by the above provisions only in the cases referred to in article 98. By the criteria of official photographic identification document individual criteria can be omitted due to technical progress, other equivalent criteria are introduced, such as biometric data, which are at least equivalent to the deleted criteria in their legitimization effect. The criterion of the exhibition through a government agency must be always specified.
(2) the insurer has known who want to establish a business relationship with the insurance companies to ask to give, whether it occurs as a trustee; This has prompted to comply with. He announces that he wants to act as trustee, he has the insurance company to prove the identity of the settlor. The identity of the trustee is to determine in accordance with paragraph 1 and only for physical presence of the trustee. An identification of the trustee by third parties is excluded. The proof of the identity of the settlor must be legal persons by conclusive documents referred to in paragraph 1 for natural persons by presentation of the original or a copy of the official photographic identification document (paragraph 1) of the settlor. The trustee has also a written declaration to the insurer to submit that he personally or through reliable referees of the identity of the settlor is satisfied. Reliable referees in this sense are the courts and other State authorities, notaries, lawyers and third parties within the meaning of § 98e.
(3) insurance undertakings have in addition:
1. customers to urge to announce the identity of the beneficial owner of the customers and it has to comply with this request and have risk-based and adequate measures to verify its identity to take them so that they are convinced to know who is the beneficial owner; in the case of legal persons or of trusts this includes risk-based and adequate measures to understand the ownership and control structure of the customer to take 2 to obtain information on the purpose and nature of the desired business relationship, risk-based and adequate measures 3.
risk-based and adequate measures to take to carry out continuous monitoring of the business relationship including scrutiny of transactions settled in the course of the business relationship, to make sure that those with the knowledge of the insurance company about the customers, its business activities and its risk profile, including, if necessary, the origin of money or financial means, are coherent, and guarantee to provide the relevant documents, data or information are always updated.
(4) the insurance companies have their business on the basis of suitable criteria (in particular products, complexity of transactions, customers and business of customers, geography) a risk analysis regarding their risk for purposes of money laundering and terrorist financing abuse to undergo. The insurance company can demonstrate to the FMA that the scope of the measures adopted on the basis of the analysis with regard to the risks of money laundering and terrorist financing as appropriate to look at is.
(5) by way of derogation from paragraph 1 Z 1 can verify insurance company the identity of the beneficiary of the insurance contract only prior to the payment, or if the beneficiary takes its rights under the contract of insurance claim.
(6) in the event that the insurance companies not in the position are to comply with paragraph 1 to 3 for customer identification and obtain other necessary information about the relationship, they may establish any business relationship and carry out any transaction; is also a message about the customers to the authorities (§ 6 of the Security Police Act, Federal Law Gazette No. 566/1991 [SPG]) pursuant to § 98f paragraph 1 consider to pull.
(7) the insurance company have the due diligence obligations pursuant to this main piece to the identification and verification of customer identity not only to all new customers, but to appropriate time also to existing customers on risk-oriented basis to apply.
(8) the insurance companies have
1. to arrange that in their branches and subsidiaries in third countries measures be applied, corresponding to at least those laid down in this Act in regard to the duty of care towards customers and keeping a record.
2. the FMA thereof to inform, if the application of the measures referred to in subpara 1 according to the legislation of the third country concerned is not allowed and also other measures to take to counter the risk of money laundering or financing of terrorism effectively.
The FMA has to inform the competent authorities of the other Contracting States and the European Commission on cases in which the application of the measures necessary according to no. 1 is not allowed under the legislation of a third country and a solution within the framework of a coordinated approach could be pursued.
(9) relating to non-cooperation States, section 78, paragraph 9, of the Banking Act, Federal Law Gazette is no 532/1993 (BWG) shall apply mutatis mutandis.
Simplified due diligence
§ 98c. (1) the insurance company shall be exempt from the obligations laid down in § 98 b paragraph 1 Z 1, 2 and 4, paragraph 2, and 3 in the following cases, subject to a review as a low risk of money laundering and terrorist financing pursuant to par. 2:
1 if it when the customer is a) an insurance company, as far as it is subject to the provisions of this main section, a credit institution in accordance with article 1 para. 1 BWG or a credit and financial institution in accordance with article 3 of Directive 2005/60/EC (OJ No. L 309 of 25 November 2005, p. 15), b) an insurance undertaking resident in a third country, credit institution or other financial institution within the meaning of article 3 of Directive 2005/60/EC, that is subject to there equivalent obligations, as provided for in Directive 2005/60/EC, and is subject to a supervision on compliance, c) a publicly traded company, whose securities are admitted to trading on a regulated market in one or more Contracting States , or a listed company from a third country which is subject to BörseG according to a on the basis of authority to issue of regulations pursuant to section 85, paragraph 10 by decree to be adopted the FMA disclosure requirements, which correspond to European Community law or are similar to this, d) a domestic authority or e) an authority or public institution, aa) If this was given on the basis of the Treaty on European Union, the treaties establishing the European communities or of secondary legislation of the European communities with public tasks , bb) whose identity is publicly verifiable and transparent and clearly been made, cc) whose activities and accounting practices are transparent and dd) If is accountable either to an institution of the European communities or the authorities of a Contracting State or otherwise control and other control mechanisms exist to review its activities,.
2. compared to customers in relation to the following insurance contracts and the related transactions: a) life insurance contracts, if the amount of the premiums to be paid in the course of the year does not exceed EUR 1 000 or a single premium payment is not more than 2 500 euro, b) pension insurance contracts, unless these can contain a buy-back clause, nor serve as collateral for a loan.
(2) the insurance companies have to assess whether with the in para 1 subpara 1 lit. c to customers referred to in e, and the in para 1 subpara 2 lit. b products a low risk of money laundering or terrorist financing is connected. This is activities that customers and the type of products and transactions can be closed when those with higher probability to the use for the purposes of money laundering or of the financing of terrorism, to pay special attention to. If you present information to the insurance companies suggest, that the risk of money laundering or of the financing of terrorism is not may be low, the exemptions under this paragraph shall not apply.
(3) the insurance companies have to retain sufficient information to demonstrate that the requirements for the application of simplified due diligence obligations exist.
(4) the Federal Government has to have, that the exemptions referred to in paragraph 1 no longer apply are if the European Commission shall take a decision pursuant to article 40 paragraph 4 of Directive 2005/60/EC in consultation with the Policy Committee of the National Council by regulation.
(5) the FMA shall inform the competent authorities in the other Member States and the Commission of cases in which a third country of considers complies with the conditions laid down in paragraph 1.
Enhanced due diligence
§ 98d. (1) insurance undertakings have an increased risk of money laundering in cases where their nature or terrorist financing the article 98 insists on risk-oriented basis in addition to the duties b para 1 to 3 and 7 other adequate due diligence to apply. Anyway, in addition there are:
1. in cases where the customer or for him within the meaning of article 98 b paragraph 1 representation-authorised natural person to establishing the identity is not physically present and therefore the personal template of an official photo ID is not possible to take specific and adequate measures to compensate for the increased risk. they have - except suspicion or legitimate reason for the adoption in accordance with article 98 as in these cases at least the business contact be avoided has to b para 1 No. 3, - to ensure that at least: either a) the contractual statement of the customer either on the basis of a qualified electronic signature according to § 2 Z 3a signature Act, Federal Law Gazette I no. 190/1999 (SigG) exists; or, if this is not the case that the contractual statement of the insurance undertaking in writing supplied with registered mail delivery to the customer address, which is specified as a place of residence or seat of the customer, b) you name, date of birth and address of the customer legal person the name and the registered office are known; at the same time, for legal entities, the seat must be the seat of the Central Administration by what the customer to submit a written declaration has. In addition to a copy of the official photo ID of the client or his legal representative or legal entities of the authorized institution of which are insurance companies before establishing the business relationship if not the right business is completed electronically using a qualified electronic signature and c)
If the registered office or place of residence outside of the EEA, a written confirmation of a credit institution in accordance with section 98e para 1 No. 3, with which the customer has an ongoing business relationship, is that of the customer within the meaning of article 98 b 2, para 1, para 3 No. 1 or 2, or article 8 par. 1 lit. a to c of Directive 2005/60/EC has been identified and that the ongoing business relationship is maintained. The confirming bank domiciled in a third country, of articles 16 to 18 of the aforementioned directive equivalent requirements must be this third country requirements. Place an identification and confirmation by a credit institution also identification and written confirmation by the Austrian representative authority in the third country concerned or a recognized accreditation body is allowed or d) the first payment under the business relationship is handled through an account opened in Nos. 3 and 2 in the name of the customer with a credit institution in accordance with section 98e, paragraph 1; in this case must however anyway, name, date of birth and address of the customer legal person the name and the registered office be known them and copies of documents of the customer available to them due to which the data of the client or his authorized person can credibly track. Instead these copies, it is sufficient if a written confirmation of the credit Institute, about the first payment should be handled that the customer in the sense of article 98 b 2, para 1, para 3 No. 1 or 2, or article 8 par. 1 lit. a to c of Directive 2005/60/EC has been identified.
Z 1 is subject to a review as a low risk of money laundering and terrorist financing, not in relation to in § 98 c par. 1 Z 2 insurance contracts referred to and the related transactions.
2. transactions or business relationships with politically exposed persons from other Member States or third countries a) adequate, risk-based procedures to have, determine whether the customer is a politically exposed person or not;
(b) the consent of the management level to catch up, before they take relationships with these customers.
c) appropriate measures to take, where the origin of the assets and the origin of the funds can be determined, which are used in the framework of the business relationship or transaction) and (d) to carry out the business relationship of a reinforced ongoing monitoring.
(2) the insurance companies have carefully to examine any justification of a business relationship and each transaction as long as their opinion is particularly likely, that the business relationship or the transaction with money laundering (§ 165 StGB - involving asset components, stemming from a criminal act of the perpetrator himself) or financing of terrorism (§ 278d StGB) could hang together and, if necessary, to take measures, to prevent the use for the purposes of money laundering or of the financing of terrorism.
Execution by third parties
§ 98e. (1) the insurer may access to the fulfilment of obligations pursuant to § 98 b para 1, 2 and 3 Nos. 1 and 2 on third parties. However, the ultimate responsibility for the fulfilment of these obligations will remain at insurance companies, which rely on third parties. Considered third parties within the meaning of this paragraph:
1. insurance companies, as far as they are subject to the provisions of the main piece, insurance undertakings in accordance with article 3 No. 2 lit. (b) of Directive 2005/60/EC;
2. insurance intermediaries in accordance with § 365 m para 3 Z 4 GewO 1994, insurance intermediaries in accordance with article 3 No. 2 lit. e of Directive 2005/60/EC;
3. credit institutions in accordance with article 1 para. 1 BWG, credit and financial institutions in accordance with article 3 No. 1 and no. 2 lit. a, c, d and f of Directive 2005/60/EC; If they both not only have a permission for conducting currency exchange business (§ 1 para 1 Z 22 BWG) or of the financial transfer business (§ 1 para 1 Z 23 BWG) have;
4. in article 2 para 1 No. 3 lit. referred to in a and b of Directive 2005/60/EC people based in the inland or EEA.
(2) legal or natural persons established in a third country, which are equivalent to those referred to in paragraph 1, considered to be third parties in the sense of paragraph 1, provided that they
1. a legally recognised compulsory registration with regard to their profession are subject to and due diligence obligations towards clients and obligations for the storage of documents must apply 2., that in this main piece or in Directive 2005/60/EC are laid down or meet these, and subject to supervision in accordance with chapter V of section 2 of this directive, as regards compliance with the requirements of this directive, or in a third country are established , that prescribes requirements corresponding to those of this directive.
The FMA shall inform the competent authorities of the other Contracting States and the European Commission about cases in which a third country of considers complies with the above conditions.
(3) if the European Commission para 4 of Directive 2005/60/EC shall take a decision pursuant to article 40, the Federal Government in consultation with the Policy Committee of the National Council prohibited insurance companies, to access (b) paragraphs 1, 2 and 3 Nos. 1 and 2 on third parties from the third country concerned to fulfil the obligations according to section 98 by regulation.
(4) the insurance companies have to get that third parties them that to comply with the obligations pursuant to § 98 b para 1, 2 and 3 Nos. 1 and 2, or under article 8 par. 1 lit. c of Directive 2005/60/EC without delay provide a necessary information. In addition, have the insurance companies to arrange that the relevant copies of the data with regard to the identification and verification of the identity of the customer, as well as other relevant documentation on the identity of the customer or the beneficial owner of the third party immediately forwarded them on their request.
(5) this section does not apply to "Outsourcing" – or agency relationships where on the basis of a contract of "outsourcing" – service provider or agent as part of the insurance company committed to the fulfilment of obligations pursuant to § 98 b para 1, 2 and 3 Nos. 1 and 2 to look at is.
§ 98f. (1) arises the suspicion or the legitimate reason to believe
1 that the intended establishment of a business relationship or an existing business relationship, money laundering (§ 165 StGB - involving asset components, stemming from a criminal act of the perpetrator himself) is used, 2. that one has already been made, an ongoing or upcoming transaction of money laundering (§ 165 CP – involving asset components, stemming from a criminal act of the perpetrator himself) is used, that the obligation to disclose policyholder acted 98 b trust relationships pursuant to § 2 contrary to 3rd or 4th that customer joined a terrorist group in accordance with § 278 b of the criminal code or that the establishment of a business relationship or transaction of terrorist financing in accordance with § 278d of the criminal code serves, the insurance company has the Authority (§ 6 SPG) has to refrain until the clarification of the facts of the case by establishing the business relationship immediately to inform a subject, and may perform any transaction, except that there is a risk , that this complicates the determination of the facts of the case or prevented. The insurance companies have this every activity to devote special attention, their very nature of considers particularly suggests that she may be related to money laundering or terrorist financing. In particular, complex or unusual contracts and transactions which have no apparent economic or visible lawful purpose, be included. Moreover, records to create are in an appropriate manner. The insurance companies are authorised by the Authority (§ 6 SPG) to demand that they will decide whether there are concerns against the immediate settlement of a transaction; expresses the authorities (§ 6 SPG) until the end of the following banking day, so the transaction must be settled immediately.
(2) the insurance company have the Authority (§ 6 SPG) to supply all information requested this for the prevention or prosecution of money laundering or terrorist financing required seem.
(3) the Authority (§ 6 SPG) is empowered to order that an ongoing or upcoming transaction, which of the suspicion or the legitimate reason to believe, that they money laundering (§ 165 StGB - involving asset components, arising from a criminal offence of the perpetrators themselves) or the financing of terrorism (§ 278d StGB) is used, is omitted or is postponed for the time being. The authorities (§ 6 SPG) has the customers and the public prosecutor's Office without inform undue delay by the arrangement. The understanding of the customers has to contain the note that he or an otherwise-affected is entitled to raise a complaint for violation of his rights to the independent administrative Senate. this connection has also referenced in section 67c of the General administrative procedures Act 1991, BGBl. No. 51/1991 (AVG) to point out provisions for such complaints.
(4) the Authority (§ 6 SPG) the arrangement has according to para 3 to repeal as soon as the conditions for the issue have disappeared or the Prosecutor explains that the prerequisites for a seizure pursuant to §§ 109 Z 2 and 115 para 1 No. 3 of the code of criminal procedure 1975, BGBl. No. 631/1975 (Ccrp) do not exist. The arrangement is indeed
1. If have passed since its adoption six months or as soon as the Court about a request for confiscation in accordance with 2. §§ 109 No. of 2 and 115 paragraph 1 Z 3 StPO has also adjudicated.
(5) the insurance companies have all operations, para 1 to 3 for the perception, to disclose to clients and third parties. Once an order has been rendered pursuant to paragraph 3, they are however empowered customers to the authorities (§ 6 SPG) to reference; with the consent of the authorities (§ 6 SPG) they are also empowered to notify the customer of the arrangement. The prohibition referred to in this paragraph
1 does not refer to the dissemination of information to the FMA, the Austrian National Bank or on the disclosure of information for purposes of law enforcement, 2. is available to a sharing of information between the same group in terms of non-2 Z 12 of Directive 2002/87/EC article subsidiaries of Contracting States or from third countries not, if these equivalent obligations as provided for in Directive 2005/60/EC , are subject to and are subject to supervision in relation to compliance and 3 is available in cases that same client relating to and same transaction, of two or more insurance undertakings in accordance with § 98e para 1 No. 1 or credit institutions referred to in section 98e para 1 No. 3 are involved, a sharing of information between these not meet unless a Contracting State or in a third country are located , the equivalent of Directive 2005/60/EC requirements, and provided that they come from the same professional category and equivalent obligations with regard to the obligation of professional secrecy and personal data protection apply to them. The information exchanged may be used solely for the purpose of preventing money laundering and the financing of terrorism.
The FMA has to inform the competent authorities of the other Contracting States and the European Commission on cases in which a third country of considers complies with the conditions laid down in the Z 2 or 3. If the European Commission pursuant to article 40, paragraph 4 of Directive 2005/60/EC makes a decision, the Federal Government in consultation with the Policy Committee of the National Council shall by regulation to prohibit a sharing of information between insurance companies and persons from the third country concerned.
(6) the suspicion that a business relationship or transaction is money laundering or the financing of terrorism, is the FMA upon exercise of supervision, it has the Authority (§ 6 SPG) subject immediately to inform.
(7) in the case of invalidity of other data allowed by the authority to the detriment of the accused person or first, (§ 6 SPG) referred to in paragraph 1, 2 or 6 have been identified in only because of financial offences, with the exception of financial offences falling within the jurisdiction of the courts, of smuggling or the evasion of input or output taxes, guided procedures cannot be used. Results from the Authority (§ 6 SPG) only a suspicion of an offence referred to in the first sentence, so she has the display in accordance with § 78 StPO or article 81 of the financial criminal act, Federal Law Gazette No. 129/1958 (FinStrG) to refrain from.
(8) can damages from the fact that an insurance company or a worker in negligent ignorance, that the suspicion of money laundering or terrorist financing or the suspicion of an offence within the meaning of section 98 was wrong para 2, delayed or not has carried out there a transaction, not collected.
Retention of records and statistical data
Article 98 g. The insurance companies have the following documents and information with regard to the use in investigation due to possible money laundering or terrorist financing or in regard to perform appropriate analyses by the Authority (§ 6 SPG) or to keep the FMA:
1 documents which 98 (b) paragraphs 1 to 3 and 7 are used pursuant to § an identify, as well as documents and records of the insurance contract to at least five years after the end of the insurance contract;
2. of all transaction documents and records until at least five years after its implementation.
Internal procedures and training
§ 98 h. (1) insurance undertakings have
1. adequate and suitable strategies and for the customer due diligence, the suspected messages, keeping a record, internal control, risk assessment, risk management, to establish procedures ensuring compliance with the relevant rules and the communication, business relationships and transactions related to money laundering or financing of terrorism, to prevent and to prevent;
2. the relevant strategies and processes to inform their branches and subsidiaries in third countries;
3. using appropriate measures to familiarize the staff involved in establishing business relations and the settlement of transactions with the rules that are used to prevent or combat money laundering or terrorist financing. These measures have to include among others the participation of competent employees in special training programmes for these learn to recognize related contracts or transactions may be money laundering or terrorist financing and to behave properly in such cases.
4. systems to set up, which allow them to questions of the Authority (§ 6 SPG) or the FMA, which appear necessary for the prevention or prosecution of money laundering or terrorist financing to provide them with certain natural or legal persons, maintain a business relationship or entertained during the past five years, as well as the nature of this business relationship; fully and rapidly
5. the FMA at any time review the effectiveness of their systems for combating money laundering or terrorist financing to enable;
6 within their company a special officer to ensure compliance with the paragraphs 98a to 98 h on combating money laundering and terrorist financing to be provided.
(2) the authorities (§ 6 SPG) has insurance companies to provide access to current information about the methods of money laundering and the financing of terrorism and clues that reveal where is suspicious business relationships and transactions. Also ensures that timely feedback in relation to the effectiveness of messages of suspected money laundering or financing of terrorism and the measures taken then takes place, as far as practicable."
15 before section 99, the outline name is replaced by the structure name "Eighth major piece" "Ninth main piece".
16. before paragraph outline is 107 b "Ninth main piece" replaced by the outline title "10th main piece".
17. in article 107 paragraph 1 b adds 2c following Z 2d after Z:
"2d. the written notification of the result of the election to the Chairman of the Supervisory Board pursuant to § 11a paragraph 4 fails;"
18. in section 108a, para 1 No. 2, the reference "section 18a" is replaced by the reference "paragraphs 98a and 98 h".
19 prior to section 115, the outline name is replaced by the outline name "Tenth main piece" "Eleventh main piece".
20 before section 119, the outline name is replaced by the outline name "Twelfth main piece" 'Eleventh main piece'.
21. in section 119i be added following paragraph 19 and 20:
"(19) § 1 para 2, § 17c para 1 b in the version of Federal Law Gazette I no. 107/2007 10 December 2007 into force."
((20) § 1a para 1, § 2 para 2 No. 1, § 11a, § 17 para 2, § 18 para 4, § 22 para 3, Article 24a, paragraph 1, article 73f para 5, § 82 para 6, article 82 b paragraph 4, §§ 98a and 98 h together with headings, § 107 b para 1 subpara 2 and 2d, § 108 para 1 No. 2, section 118i para 1 No. 5, § 131 Z 1, 4 and 4a, Appendix d. section B) No. 4 lit. I no. 107/2007 d and the outline names before the § § 99, 107 b, 115 and 119 in the version of Federal Law Gazette 1 January 2008 into effect. At the same time § 18a override. § 11a paragraph 3 in the version of Federal Law Gazette I is no. 107/2007 on Chairman of the Supervisory Board, which I have already ordered no. 107/2007 at the time of entry into force of the Federal Act Federal Law Gazette are, until the expiry of their term of Office, at the latest until the expiry of the December 31, 2010, does not apply."
22. in paragraph 131 Z 1 eliminates the reference "of section 18a para 10 in cohesion with § 41 para 7 BWG," and it will be inserted after the reference "the §§ 87 to 96," the reference "article 98f para 8,".
23 paragraph 131 Z 4:
"4. with regard to article 98f par. 1 to 3 and 7 last sentence of the Federal Minister of the Interior;"
24. under section 131, no. 4 following Z 4a is inserted:
"4a. with regard to the article 98 h para 1 and 2 of the Federal Minister of finance in agreement with the Federal Minister of the Interior;"
25 in Annex D section B) No. 4 lit. the phrase "less reinsurance commissions and profit shares from reinsurance cessions" deleted d.
Amendment of the securities supervision Act 2007
The securities supervision Act 2007 - WAG 2007, Federal Law Gazette I no. 60/2007, is amended as follows:
1. in article 6, article 12, paragraph 4, article 91, paragraph 1 Z 5 and no. 6, § 95 paragraph 8 Z 2 Z 1 and section 95 paragraph 9 is for the phrase "40" inserted the term ", 40a, 40B, 40 d".
2. paragraph 60 paragraph 2:
"(2) for the purposes of this paragraph and paragraph 61 you are Z 1 to 4 suitable referred entities counterparties in article 58, paragraph 2. Them in § 58 para. 2 No. 1 lit. i mentioned entities have to have net sales amounting to at least EUR 40 million. If a legal entity is subject to legal systems of different Member States, the classification of this legal personality is determined according to the legislation of the Member State in which this legal entity is established."
3. paragraph 73 para 1:
"(1) investment firms have its financial statements in accordance with the outline of Appendix 2 to § 43 in sufficient time to create Banking Act, that the period of para 2; are complied the §§ 43, 45 to 59a, 64 and 65 paragraph 1 and 2 of the Banking Act shall apply. The requirements set out in § apply 275 commercial code concerning the liability of the statutory auditor."
3A. Article 75, paragraph 2, second sentence, is:
"The establishment of the compensation is in the form of a trust liability company as a legal entity to operate."
3B. The following paragraph 6 is added to article 76:
"(6) the compensation scheme has to handle the collection of contribution referred to in paragraph 3 and the compensation payouts mitarbeiterbeteiligung. She has to create a directory of all investor claims (para. 4) and the contributions to be paid (para. 3) for this purpose. Contributions referred to in paragraph 3 and claims referred to in paragraph 4 shall be disclosed in the balance sheet and has the compensation scheme to make no provisions in accordance with section 198 para 8 (UGB). A statement of the trust assets is as annex to the financial statements."
3 c. In article 77 paragraph 1 Z 1 after the word "Accounts" the phrase "including the annex referred to in section 76 para 6" inserted.
4. Article 91 para 3 No. 6 is:
"6. If the competent public prosecutor's Office to request that this Court a request for confiscation pursuant to §§ 109 No. of 2 and 115 paragraph 1 Z 3 code of criminal procedure 1975 - StPO, BGBl. No. 631/1975, is."
5. in article 91 para. 3 Z 11 and paragraph 7 will be ever the expression "section 84 StPO" by the expression "§ 78 StPO" replaced.
5a. following Z 9 is added to article 103:
"9 (§ 76 para 6) section 76 para 6 is to apply for the first time to balance sheet dates from December 31, 2007. A compensation scheme that balance sheet has achieved investor claims, provisions for this imaginary or fees in the previous financial statements in accordance with article 76, para. 3 and 4, has the following financial statements not income to resolve these balance sheet items and assign as trust assets in the annex in accordance with article 76, paragraph 6."
6. the section 108 receives the sales designation (1) and the following paragraph 2 is added:
"(2) section 6, section 12 paragraph 4, section 60 paragraph 2, article 73, paragraph 1, article 91, paragraph 1 Nos. 5 and 6, section 91, paragraph 3 Nos. 6 and 11, section 91 paragraph 7, section 95 para 8 Nos. 1 and section 95 paragraph 9 No. 2 in the version of Federal Law Gazette I no. 107/2007 into force on December 15, 2007."
Amendment of the Pension Fund Act
The Pension Fund Act, Federal Law Gazette No. 281/1990, amended by Federal Law Gazette I no. 141/2006, is amended as follows:
1. in article 20 the paragraph 3a and 3B get the names of "(3c)" and (3d); following paragraph 3a and 3B shall be inserted after paragraph 3:
"(3a) unless permitted by law nothing is, the factor, do only then gender to different articles or services for women and men, if the sex is a determining factor in a risk assessment, based on relevant and accurate actuarial and statistical data. The risk assessment as well as actuarial and statistical data shall be indicated in the business plan. The Pension Fund has regularly to update the risk assessment.
(3B) which has pension fund the actuarial and statistical data, from which derive different contributions or benefits for women and men, and each update this data to publish. It involves data already published by other offices, a reference to this publication is sufficient. Are the data on the Internet is provided, so anyone on demand is a readable without any technical AIDS playback to provide."
2. § 51 29 the following paragraph is added:
"(29) § 20 paragraph 3a to 3d in the version of Federal Law Gazette I no. 107/2007 effective with January 1, 2008."