33. Federal law that modifies the Banking Act, the financial market Authority Act and the insurance supervision law
The National Council has decided:
Amendment of the Banking Act
The Banking Act, Federal Law Gazette No. 532/1993, as last amended by Federal Law Gazette I no. 32/2005, is amended as follows:
1. § 22 para 6c first sentence reads:
"The bank auditor has to consider the admissibility and accuracy of netting agreements, as well as the fulfilment of the conditions of the paragraph 6 (b) and to explain in the banking supervisory audit report."
2. section 22c para 4 is the last sentence:
"The parent credit institution has to provide proof of the fulfilment of the conditions at any time and to submit to the FMA on demand."
3. § 23 para 1 subpara 2 lit. a are to c:
"(a) (he was determined after deduction of all foreseeable taxes, duties and profits in accordance with the provisions of section XII, b) of the bank auditors of the correctness of the investigation after lit." examined a and c) the credit institution of the FMA the accuracy of determination after lit. a demonstrated."
4. in § 23 paragraph 7, Z 5 of the part of the sentence does not apply ", and the Bank Examiner has confirmed this".
5. section 23 para 8 Z 1 last half sentence reads:
"in the event of termination of subordinated capital the credit institution of the FMA has to prove this equivalent replacement."
6 § 23 para 8a Z 1 last half sentence reads:
"in the event of termination of short-term subordinated capital the credit institution of the FMA has to prove this equivalent replacement."
7 § 30 par. 7, second sentence, is:
"You have to give information appearing each other all necessary to ensure an appropriate risk mitigation and risk management within the meaning of section 39 and bankbetrieblich required acquisition, identifying and evaluating credit risk for the Bank Group and the institutions members of her."
8 § 30 paragraph 8 last sentence reads:
"The transmission of the information required for the consolidation is not guaranteed, in acquisition of consolidated participation so the parent Institute may not acquire such participation."
9. in section 30 paragraph 9, the point is replaced by a semicolon at the end. The following phrase is added:
"they have the parent company and the other Furthermore this subordinate institutions all for capturing bankbetrieblich necessary, to submit documents required identification and evaluation of risks and to give information."
10 § 30 paragraph 10 first sentence reads:
"Documents and information referred to in paragraph 7 and 9 include the following areas of consolidation and the bankbetrieblich necessary collection, determination and evaluation of credit risks, both consolidated both at the individual institutions:"
11. in paragraph 39, after paragraph 2, the following paragraph 2a is inserted:
"(2a) credit institutions can use for the development and ongoing maintenance of rating procedures of common risk classification facilities as a service provider, if they have shown this the FMA previously. Providing all the information necessary for the collection and assessment of risks by the participating credit institutions to the joint establishment of risk classification is allowed for the sole purpose to develop procedures for risk assessment and risk mitigation by processing this data and continuously maintain and to provide these procedures the participating credit institutions; the transmission of personal data through the establishment of risk classification is allowed only to the credit institution and a reported the underlying borrower data. The joint establishment of risk classification, their organs, staff and working otherwise for they people are subject to banking secrecy in accordance with article 38. The FMA has all in section 70 paragraph 1 of referred requests for information, template - and inspection powers in relation to the joint establishment of risk classification; section 71 shall apply."
12 § 42 para 2 subpara 2 is:
"2. the objective perception of the function may be impaired, especially when the persons concerned are ordered at the same time to the external auditor with the same credit institution or on these individuals by their activities in the internal audit department one Z 6, 12 and 13 above exclusion reasons as bank auditors of the credit institution would apply in § 62."
13 paragraph 42 subsection 6:
"(6) with the task of internal audit is to entrust an own OU in the credit institution. This does not apply to credit institutions,
1. their balance sheet total does not exceed EUR 150 million or 2 their headcount does not exceed 30 full-time employees in the annual average or 3. their balance sheet total does not exceed EUR 1 billion and that are connected to a central institution or a group of credit institutions belong to, if a dedicated organization unit for internal audit that is equipped and organized anytime according to para 2 has the sector association or the group."
14 paragraph 3 deleted § 43.
15 § 44 para 1 first sentence reads:
"The audited annual financial statements, management reports, consolidated financial statements and group management report according to § 59 and 59a, para 1 as well as the audit reports on the financial statements, management reports, consolidated financial statements and group management report according to § 59 and section 59a paragraph 1 including the annex to the audit report on the financial statements referred to in § 63 para 5 are present by the banks and the branches of foreign credit institutions at the latest within six months after completion of the financial year, the FMA and the Austrian National Bank."
16 article 44 paragraph 4 first sentence reads:
"Branches of credit institutions referred to in article 9, paragraph 1, and financial institutions in accordance with article 11, paragraph 1 and article 13 par. 1, providing activities pursuant to section 1 para 1 Nos. 2 to 8, 11 and 15 to 17 in Austria, have 1 to 4 by bank auditors to verify the following information according to Z and to submit the report thereon including the facility pursuant to § 63 para 6 at the latest within six months after completion of the financial year of the FMA and Oesterreichische Nationalbank :“
17 paragraph 44 paragraph 5a:
"(5a) branches of investment firms in accordance with § 9a have the attention of sections 10 to 18 WAG by bank auditors to verify." On the outcome of the examination is an examination report to create and, where necessary, to explain. This report is to submit by the branches of investment firms within six months after completion of the FMA financial year."
18 paragraph 1a and 1B accounts for § 63.
19 § 63 para 1c is:
"(1C) of the bank auditors of the FMA has two weeks after his appointment to certify that there are no exclusion reasons." He has on her desire to provide all the assessment required further certificates and evidence. Such demand is not met, the FMA pursuant to para 1 can do this."
20 paragraph 63 paragraph 2:
"(2) the provisions of §§ 268 to 270 HGB on the audit of the annual financial statements (consolidated financial statements) are to apply for credit institutions subject to the proviso that the appointment of the auditor referred to in paragraph 1 before the beginning of the financial year to be tested must be carried out. In proceedings according to law and the statutes existing supervisory bodies on the financial statements the bank auditors as expert respondents have to participate."
21 paragraph 63 para 3:
"Facts (3) be determined by the bank auditors in its audit work, the structure of the audited institution or the feasibility of its obligations for at risk or the relevant prudential legal or recognize other regulations or decisions of the Federal Minister of finance or the FMA for injured so he has over these facts without prejudice to article 273 par. 2 to report German commercial code immediately in writing with explanations also the FMA and Oesterreichische Nationalbank." It is however short term remediable, slight defects, only then to if the credit institution within no more than three months has corrected the deficiencies. To report is when the Director improperly grant information requested by the Bank Auditor within a reasonable period of time. Bank Examiner ordered a test Association have to submit reports, which immediately forward it has under this paragraph through the examination Association."
22 § 63 para 4 No. 2 to 4 are:
2. the consideration of sections 21 to 27, 29 and 73 para 1 and 75;
2A. the observance of sections 10 to 18 WAG;
3. compliance with the other provisions of this federal law and the other for credit institutions essential legislation;
"4. the attention of the section 230a ABGB, sections 66 and 67 of the regulation adopted pursuant to section 68, paragraph 2;"
23 § 63 para 5 is as follows:
"(5) the result of the examination referred to in paragraph 4 is to represent (supervisory audit report) in an annex to the audit report on the financial statements. This system is the existing law or statutes supervisory bodies of credit institutions so timely to submit that the presentation specified in § 44 para 1 can be kept with the audit report on the annual accounts, the business managers. The FMA has to assess form and structure of this plant, as well as the facilities referred to in paragraph 7 by Decree."
24 paragraph 63 paragraph 6:
(6) which are also by branches of credit institutions referred to in article 9, paragraph 1, and financial institutions in accordance with article 11, paragraph 1, and article 13, paragraph 1, § 44 par. 4 according to provide the activities pursuant to section 1 para 1 Nos. 2 to 8, 11 and 15 to 17 in Austria, check to. The examination shall include:
1. the correctness and conformity with the financial statements (section 44 para. 3);
2. compliance with the in the § § regulations referred 9 para of 7, 11 paragraph of 5, as well as 13 para 4 and observance of sections 10 to 18 WAG."
25 paragraph 63 para 6a:
"(6a) at branches of investment firms in accordance with section 9a is the observance of sections 10 to 18 WAG to check." The report on the result of this test is to create so in a timely manner in the form of the system referred to in paragraph 7 and the managers of the branch offices to deliver that which paragraph 5a template deadline can be kept a in § 44."
26 paragraph 63 paragraph 7:
"(7) the result of the examination referred to in paragraph 6 and 6a is to represent in an annex to the audit report pursuant to § 44 par. 4 and 5a. Financial institutions and securities firms from Member States in Austria so timely to submit, that the template of § 44 par. 3 to 5 can deadlines is including the plant at securities firms in the form of the system, the managers of the branches of credit institutions,. the audit report"
27. in article 65 paragraph 1, the following sentence is inserted after the first sentence:
"This does not apply to the annex to the audit report on the financial statements in accordance with § 63 para 5."
28 para 3a the following sentence is added to § the 65:
"This does not apply to the annex to the audit report on the financial statements in accordance with § 63 paragraph 7."
29 paragraph 68 paragraph 1:
(1) which has bank auditors to examine also the proper management of the cover pool.
30 paragraph 70 paragraph 1:
"(1) in the area of its competence as supervisory authority (section 69 Z 1 and 2) can the FMA without prejudice to her on the basis of other provisions of this Federal Act powers due to in the sense of an ongoing monitoring of the credit institutions and credit institution groups"
1 by credit institutions as well as by parent banks for the credit institution group require the submission of interim financial statements, of ways in certain form and structure and audit reports, as well as by the banks as well as parent credit institutions for the credit institution group and whose bodies request information about all business matters in the books, documents and data carriers inspect; the scope of the rights of information, template - and a show of FMA and the commitment to the availability of documents in the domestic section 60 paragraph 3 is to apply;
2. by the bank auditors of credit institutions and groups of credit institutions and by the competent review and revision associations information collect; It can also backup facilities and pursuant to par. 2 Z 2 all necessary information obtain ordered Commissioner of the Government and grant them;
2A. the bank auditors of the credit institutions and groups of credit institutions, other accountants and accounting firms, the responsible audit and auditing associations and other experts be all required checks personnel; the exclusion grounds referred to in section 62 shall apply; Provision of information by the FMA to the examiner appointed by you is permitted, insofar as this is relevant to the performance of the audit mandate;
3. its own auditors or the Austrian National Bank, the latter if this procedure is considerably simplified or accelerated or if this is located the practicality, simplicity, or quickness in the interest, with the examination of credit institutions, their branches and representative offices outside Austria, by credit institutions, which are subject to FKG of supplementary supervision in accordance with article 5, paragraph 1, as well as by the credit institution group giving. The FMA has to of site inspections in the area of bank supervision with regard to assessing the proper limitation of credit risks and market risks (§ 26 b paragraph 1 Z 1 to 4) (§ 2 Z 57) and of site inspections of the proper limitation of credit risks and market risks (§ 26 b paragraph 1 Z 1 to 4) (§ 2 Z 57) by credit institutions and groups of credit institutions in financial conglomerates to Commission the OeNB. However, the commitment to the commissioning of the Austrian National Bank does not apply if it notifies the FMA that she can perform the test not or not timely. The OeNB and the FMA are entitled to our own employees participate in audits by the respective other institution;
4. to check the credit institution group companies as well as branches and representative offices in Member States and third countries in accordance with article 77, paragraph 5 request Nos. 2 and 3 the competent authorities of the host Member State the performance of the test if it simplifies the procedure compared to a test in accordance with no. 3 or accelerated or if this is; located in the interest of practicality, simplicity, quickness, or cost savings under these conditions is permitted to use while in the case of which examination of market or credit risk the FMA anyway, that has to hire Austrian National Bank with the participation of the audit, no. 3 is third sentence. the participation of its own inspectors or the assignment of the Austrian National Bank to participate in"
31. in § 73 para 1, the point is replaced Z 14 at the end with a semicolon. Following Z 15 is added:
"15. the intention is a risk classification system to operate; the display has the participating credit institutions, company, seat, legal form, these procedures to be developed to cover qualified owner and General Manager of the risk classification institution, as well as the; the FMA is also notified to this display can be done also by the establishment of risk classification itself called the participating credit institutions any changes in these circumstances."
32. in the section 75 para 3 first sentence replaced the reference to "Paragraph 1" with a reference to "paragraph 1 and 5a".
33. in paragraph 75, according to paragraph 5, the following paragraph 5a is inserted:
"(5a) the FMA can occurrence of reciprocity the Oesterreichische Nationalbank Regulation Commission, to provide the data of large credit evidence similar institutions in the Member States in the extent, the query referred Z 1 to 6 entitled to in para 3 is accessible." A comparison is given, if
1. that information system on large customer data is limited and 2. access to the information system on supervisory authorities and institutions, which the in paragraph 3 referred Z 1 to 6 categories of recipients are comparable, is limited to and 3. the intended use of the information system is limited to a) exercise of the financial market supervisory authority, or b) the determination of the extent of the debt.
In the regulations of the FMA are the facilities by name to call, which is to submit; In addition is to regulate, in which technical and organizational procedures the transfer has to be done."
34. in section 93a paragraph 4 the phrase "of five years" is substituted in the penultimate and last sentence with the phrase "by decade".
35. in section 93a paragraph 5 is replaced "decennial" "five-year" through the word.
36. in section 98 subsection 2 Z 7 is the reference on "§ 73 para 1 Z 1-12" the reference on "§ 73 para 1 Z 1 to 15" replaced.
37. paragraph 8 is section 102a.
38 47 the following paragraph is added to the § 107:
"(47) § 22 para 6c, section 22c para 4, § 23 para 1 No. 2, para 7 Z 5, para 8 Z 1 and paragraph 8a Z 1, § 30 paragraph 7, paragraph 8, paragraph 9 and paragraph 10, § 39 para 2a, § 42 para 2 subpara 2 and paragraph 6, the abolition of article 43, paragraph 3, article 44, para. 1, 4 and 5a, the Elimination of section 63 par. 1a and 1 b" , § 63 para 1c, para. 2, par. 3, par. 4 Z 2-4, para 5, para 6, para 6a and paragraph 7, article 65, paragraph 1 and paragraph 3a, article 68, paragraph 1, article 70, paragraph 1, article 73, paragraph 1 Z 15, section 75, paragraph 3 and paragraph 5a, section 93a paragraph 4 and 5, article 98, paragraph 2 No. 7 as amended by Federal Law Gazette I no. 33/2005 with 1 July 2005 into force. Article 102a, paragraph 8 is 1 July 2005 override."
Amendment of the financial market Authority Act
The financial market Authority Act, Federal Law Gazette I no. 97/2001, as last amended by Federal Law Gazette I no. 32/2005, is amended as follows:
1 paragraph 3 together with heading:
"Liability for the FMA's activities
§ 3 (1) that of organs and damage inflicted servants of the FMA in enforcement of federal laws referred to in article 2 shall be liable for the Federal Government under the provisions of the official liability Act - AHG, BGBl. No. 20 / 1949. The FMA as well as their staff and institutions are not liable to the injured party.
(2) the FMA has to take all according to the circumstances of each required, proper and appropriate supervisory measures in its action to dutiful discretion. She has to pay attention to maintaining the stability of the financial market. Can the audit reports of the auditor and bodies of companies subject to its supervision, as well as the audit reports of the Austrian National Bank within the framework of its statutory powers of examination place according to the BWG to reason in the performance of their duties, except, that the examiner has reasonable doubts about the accuracy or completeness of these audit reports or the vocational skills or care or had such doubts when proper care have. The same applies to the audit reports of the investigator himself commissioned by the FMA in terms of audit procedures in accordance with the federal laws referred to in paragraph 2.
(3) has the Federal Government made an injured the damage referred to in paragraph 1, so it can demand the FMA reimbursement by the bodies or employees according to the provisions of the AHG.
(4) the FMA has the Federal in the Amtshaftungs - and Radebe set procedures according to paragraphs 1 and 2 in every appropriate way to support. It has in particular all information and documents relating to the Amtshaftungs - or Radebe set procedures, to provide, as well as to ensure that the Federal Government can take the knowledge and skills of the institutions and officials of the FMA on those supervisory measures in claim.
(5) the auditor appointed by the company subject to the supervision are not organs in the sense of § 1 para 1 AHG, except that they perform in the separate order of the FMA for these tests under federal law referred to in paragraph 2. The same applies to the examination bodies of legally responsible auditing bodies.
2. § 28 the following paragraph 9 is added:
"(9) § 3 together with heading in the version of Federal Law Gazette I 33/2005 occurs no. 1 July 2005 in force."
Amendment of the insurance supervision Act
The insurance supervision Act, Federal Law Gazette No. 569/1978, as last amended by Federal Law Gazette I no. 8/2005 is amended as follows:
1 in § 61b paragraph 3 fifth sentence is quoted "§ 82 par. 1 Z 1, para 2 to 8 and 9 to 11" by the citation "§ 82 par. 1 Z 1, para 2, 2a, 4, 5, 6, 6a, 7, 10 and 11" replaced.
2. section 73d subsection 6 Z 7 is eliminated.
3. § 82 par. 2 and 2a are:
"(2) the FMA has reasonable doubt that the person elected to the auditor fulfils the conditions for the election to the Auditor, so can make an application within the meaning of article 270, para 3 HGB within one month after the announcement of the election in the currently valid version.
(2a) was the person selected to the independent auditor charged already in the previous financial year by the insurance company as auditor and Z 3 or section 83 subsection 3 is not available at receipt of the notification of the election of the auditor of the FMA of the report of the statutory auditor in accordance with article 83, paragraph 1 still no. 3 for the preceding fiscal year, so the request referred to in paragraph 3 not later than one month after the receipt of this report can be placed."
4. paragraph 3, 8, and 9 is omitted § 82.
5. paragraph 82 paragraph 4:
"(4) the Board or the managing directors have the Auditors, the Supervisory Board or the Board of Directors have appointed, to grant the audit mandate without delay."
6 paragraph 82 paragraph 6a:
"(6a) the statutory auditor para 2 has 81 h in the case of the application of § last the existence of the statutory requirements for the evaluation and in particular the amounts of the existing enterprise hidden net reserves to check record; on the outcome of this examination is to report."
7 paragraph 82 paragraph 10:
"Paragraph 1 (10) on the audit of the consolidated financial statements and the group management report are Z 1, para 2, 2a, 4, 5, 6, 6a, and 7 to apply."
8. the section 119i the following paragraph 5 is added:
"I no. 33/2005 (5) section 61 b para 3, § 73d article 6 and article 82 in the version of Federal Law Gazette 1 July 2005 into force."