33. Federal Law, which changes the Banking Act, the Financial Market Supervisory Authority Act and the Insurance Supervision Act

The National Council has decided:

Article 1

Amendment of the Banking Act

The Banking Act, BGBl. No. 532/1993, as last amended by the Federal Law BGBl. I No 32/2005, shall be amended as follows:

1. § 22 (6c), first sentence reads:

"The bank examiner shall examine the admissibility and correctness of the netting agreements as well as the fulfilment of the conditions of paragraph 6b and to explain in the bank's supervisory audit report."

2. § 22c (4) last sentence reads:

"The parent credit institution shall have the proof of the fulfilment of the terms and conditions at any time ready and shall submit to the FMA upon request."

3. § 23 para. 1 Z 2 lit. a to c are:

" (a)			it has been determined, in accordance with the provisions of Section XII, after deduction of all foreseeable taxes, charges and distributions of profits,
b)			the bank examiner has the accuracy of the determination according to lit. a has examined and
c)			the credit institution of the FMA is responsible for the correctness of the determination according to lit. a has proven. "

4. In § 23 (7) (5), the sentence is deleted. ", and the bank examiner confirmed this" .

5. § 23 (8) (1) (1) last half-sentence reads:

"In the event of resignation of subordinated capital, the credit institution of the FMA shall provide evidence of this equivalent replacement."

6. § 23 (8a) (1) (1) final half-sentence reads:

"In the event of the termination of short-term subordinated capital, the credit institution of the FMA shall provide evidence of this equivalent replacement."

7. § 30 (7) second sentence reads:

" They also have to provide each other with all the necessary information in order to provide the credit institution group and its affiliated institutions with adequate risk limitation and risk management within the meaning of Section 39 and the Bank's operational management. to ensure the necessary collection, identification and evaluation of credit risks. "

8. § 30 (8) last sentence reads:

"If, in the case of a holding of a consolidation subject to consolidation, the transmission of the information required for consolidation is not ensured, the parent institution shall not acquire such participation."

9. In § 30 (9), the point at the end is replaced by a stroke. The following half-sentence shall be added:

"They shall also provide the parent undertaking and the other institutions to the parent undertaking with all necessary documentation necessary for the collection, identification and evaluation of credit risks which is necessary for the banking operations, and shall provide information."

10. § 30 (10), first sentence reads:

"Documents and information referred to in paragraphs 7 and 9 shall include the following areas of consolidation and the necessary collection, identification and evaluation of credit risks, both consolidated and in the case of individual institutions:"

11. In § 39, the following paragraph 2a is inserted after paragraph 2:

" (2a) Credit institutions may use common risk classification facilities as service providers for the development and ongoing maintenance of credit rating procedures if they have previously indicated this to the FMA. The omission of all the information required for the collection and assessment of risks by the participating credit institutions to the common risk classification facility shall be permitted for the sole purpose of processing, by processing to develop and maintain procedures for risk assessment and risk limitation and to make these procedures available to participating credit institutions; the transmission of personal data by the Risk classification means shall be permitted only to the credit institution which shall: The underlying borrower data has been registered. The common risk classification system, its institutions, staff and other persons working for them shall be subject to banking secrecy in accordance with Section 38. In relation to the common risk classification system, the FMA has all the powers of information, submission and examination referred to in § 70 (1); § 71 shall apply. "

12. § 42 para. 2 Z 2 reads:

" 2.		the objective perception of the function may be impaired, in particular where the persons concerned are simultaneously appointed to the bank auditor at the same credit institution or to those persons through their activities in the internal audit of a the exclusion grounds referred to in § 62 (6), (12) and (13) would be the subject of a bank auditor of the credit institution. "

Section 42 (6) reads as follows:

" (6) With the tasks of the internal audit, a separate organizational unit is to be entrusted to the credit institution. However, this shall not apply to credit institutions,

1.		whose balance sheet total does not exceed EUR 150 million, or
2.		whose employee level does not exceed 30 full-time employees on an annual average, or
3.		whose balance-sheet total does not exceed one billion euros and which are affiliated to a central institution or belong to a group of credit institutions, if within the framework of the sectoral association or the group a separate organisational unit for the internal Revision, which is endowed and organised under the current consideration of para. 2. "

14. § 43 (3) deleted.

Section 44 (1) first sentence reads as follows:

" The audited financial statements, annual reports, consolidated financial statements and group management reports according to § 59 and § 59a (1) as well as the audit reports on the annual accounts, annual reports, consolidated financial statements and group management reports according to § 59 and § 59a (1) , including the annex to the audit report on the annual accounts referred to in Article 63 (5), the credit institutions and the branches of foreign credit institutions shall, at the latest, within six months of the end of the To present the financial year of the FMA and the Oesterreichische Nationalbank. "

16. § 44 (4), first sentence reads:

" branches of credit institutions pursuant to § 9 para. 1 and financial institutions pursuant to § 11 (1) and § 13 (1), which provide activities in accordance with § 1 (1) (1) (2) to (8), (11) and (15) to 17 in Austria, have the following information according to Z 1 to 4 by bank examiners to be examined and to submit the report hereof, including the annex, in accordance with section 63 (6), at the latest within six months of the conclusion of the financial year of the FMA and the Oesterreichische Nationalbank: "

Article 44 (5a) reads as follows:

" (5a) Branch offices of investment firms according to § 9a have to have the consideration of § § 10 to 18 WAG checked by bank examiners. An audit report shall be drawn up and, if necessary, explained on the basis of the outcome of the examination. This report shall be submitted by branches of investment firms within six months of the conclusion of the financial year of the FMA. "

18. § 63 (1a) and (1b).

Section 63 (1c) reads as follows:

" (1c) The bank auditor has to certify within two weeks of his appointment to the FMA that there are no grounds for exclusion. At its request, it shall provide all the other certificates and evidence required for the assessment. If such a request is not complied with, the FMA may proceed in accordance with paragraph 1. "

Article 63 (2) reads as follows:

" (2) The provisions of Sections 268 to 270 of the German Commercial Code (HGB) on the audit of the annual financial statements (consolidated financial statements) shall apply to credit institutions subject to the condition that the appointment of the bank auditor in accordance with paragraph 1 before the start of the financial year to be audited must be done. On the basis of the deliberations of the supervisory bodies in accordance with the law and the statutes on the annual accounts, the bank examiners shall be entitled to take part as expert information staff. "

21. § 63 (3) reads:

" (3) In the course of his audit work, the bank examiner shall establish facts which jeopardise the stock of the credit institution being audited or the performance of its obligations under the supervision of the credit institution, or the legal or regulatory requirements applicable to the supervision of the banking system. He shall immediately inform the FMA and the Oesterreichische Nationalbank of any other provisions or decisions of the Federal Minister of Finance or of the FMA for violating them, without prejudice to § 273 (2) of the German Commercial Code (HGB) with explanations of the FMA and the Oesterreichische Nationalbank. in writing. However, if there are minor deficiencies in the short term, it shall not be reported until the credit institution has remedied the deficiencies noted within a maximum of three months. Reports shall also be reported if the directors do not properly grant any information requested by the bank examiner within a reasonable period of time. Bank auditors ordered by an audit association shall have reports under this paragraph on the audit association which shall forward them without delay. "

22. § 63 (4) (2) to (4) are:

2.		the observance of Sections 21 to 27, 29 and 73 (1) and (75);
2a.		the observance of § § 10 to 18 WAG;
3.		the observance of the other provisions of this Federal Law and of other legislation which is essential to credit institutions;
4.		the observance of § 230a of the German Civil Code (ABGB), § § 66 and 67 as well as the regulation adopted pursuant to § 68 (2); "

23. § 63 (5) reads:

" (5) The result of the examination referred to in paragraph 4 is to be presented in an annex to the audit report on the annual accounts (bank-supervisory audit report). This Annex, together with the audit report on the annual financial statements, shall be submitted to the directors of the credit institutions in accordance with the law or the articles of association in such a timely manner that the period of advance of Section 44 (1) is complied with can. The FMA shall determine the form and structure of this installation and of the annexes referred to in paragraph 7 by regulation. "

Section 63 (6) reads as follows:

" (6) The information in accordance with § 44 (4) shall also be checked by branches of credit institutions pursuant to § 9 (1) and financial institutions pursuant to § 11 (1) and Article 13 (1), which provide activities in accordance with Article 1 (1) (1) (2) to (8), (11) and (15) to 17 in Austria. . The test shall include:

1.		The accuracy and consistency with the annual accounts (§ 44 para. 3);
2.		the observance of the regulations referred to in § § 9 (7), 11 (5) and 13 (4) and the observance of § § 10 to 18 WAG. "

Section 63 (6a) reads as follows:

" (6a) In the case of branches of investment firms in accordance with § 9a, consideration of § § 10 to 18 WAG shall be considered. The report on this audit result shall be drawn up in the form of the annex referred to in paragraph 7 in such a timely manner and shall be submitted to the directors of the branch offices, in such a way as to comply with the pre-latiation period referred to in § 44 (5a). "

Section 63 (7) reads as follows:

" (7) The result of the examination referred to in paragraphs 6 and 6a shall be presented in an annex to the examination report in accordance with § 44 (4) and (5a). The audit report, including the annex, shall be submitted in such a timely manner to investment firms in the form of the annex, to the directors of branches of credit institutions, financial institutions and investment firms from Member States in Austria, compliance with § 44 (3) to (5) can be observed. "

27. In § 65 (1), the following sentence shall be inserted after the first sentence:

"This does not apply to the annex to the audit report on the annual financial statements in accordance with § 63 (5)."

28. The following sentence is added to Article 65 (3a):

"This does not apply to the annex to the audit report on the annual accounts according to § 63 (7)."

29. § 68 (1) reads:

"(1) The bank auditor shall also examine the proper management of the cover stock."

30. § 70 (1) reads:

" (1) In its area of competence as a banking supervisory authority (§ 69 Z 1 and 2), FMA may, without prejudice to the powers conferred on it under other provisions of this Federal Law, at any time in the sense of ongoing supervision of credit institutions and the credit institution groups

1.		require credit institutions as well as parent credit institutions for companies of the credit institution group to submit interim financial statements, certificates of specific form and structure, and audit reports, as well as Credit institutions and the parent credit institutions for the credit institution's group and their institutions require information on all matters of business, including books, records and media; to the extent that: The FMA's information, submission and registration rights and the obligation to The availability of documents in Germany is to be applied to § 60 (3);
2.		obtain information from the bank auditors of the credit institutions and credit institution groups and the relevant audit and audit associations; furthermore, it may be consulted by the security institutions and by the Government Commissioner appointed pursuant to paragraph 2 (2) (2) collect all the necessary information and give it;
2a.		by the bank auditors of credit institutions and credit institution groups, other auditors and accounting firms, the competent audit and audit associations and by other experts, all the necessary tests ; the grounds for exclusion mentioned in paragraph 62 shall apply; the issuing of information by the FMA to the examiner appointed by the FMA shall be admissible in so far as it is appropriate for the performance of the examination contract;
3.		its own auditor or the Oesterreichische Nationalbank, the latter if the procedure is thereby substantially simplified or accelerated or if it is in the interests of convenience, simplicity or purity, with the examination of Credit institutions, their branches and representative offices outside Austria , of credit institutions subject to supplementary supervision pursuant to Article 5 (1) of the FKG, as well as by companies of the credit institution group. FMA has conducted an on-the-spot audit in the field of banking supervision with regard to the examination of the orderly delimitation of market risks (§ 26b para. 1 Z 1 to 4) and credit risks (§ 2 Z 57) and on the on-the-spot check of the proper limitation of to commission the Oesterreichische Nationalbank (National Bank of Oesterreichische Nationalbank) in financial conglomerates (section 26b (1) (1) to (4)) and credit risks (§ 2 (57)) of credit institutions or groups of credit institutions. However, the obligation to apply to the Oesterreichische Nationalbank does not apply if it informs the FMA that it cannot carry out the examination or does not carry out the examination within the time limit. The Oesterreichische Nationalbank (Oesterreichische Nationalbank) and the FMA are entitled to allow their own employees to participate in exams by the respective other institution;
4.		for the examination of undertakings of the credit institution group and of branches and representative offices in Member States and in third countries, in accordance with Article 77 (5) (2) and (3), the competent authorities of the host State shall also ask for the examination to be carried out if: This shall be simplified or accelerated in relation to an examination in accordance with Z 3, or where this is in the interest of convenience, simplicity, convenience or cost savings; the participation of its own auditors shall also be subject to these conditions or the appointment of the Oesterreichische Nationalbank to participate, where, in the case of market or credit risk assessment, the FMA, in any case, has to instruct the Oesterreichische Nationalbank to take part in the examination, with the third sentence of Z 3 being applied. "

31. In § 73 para. 1 Z 14, the point at the end is replaced by a stroke. The following Z 15 is added:

" 15.		the intention to use a risk classification facility; the notification shall have the participating credit institutions, company, registered office, legal form, qualified owners and managers of the risk classification facility, as well as the participating credit institutions, as well as the participating credit institutions, , the FMA shall also be notified without delay of any change in such circumstances, and this indication may also be made by the risk classification institution itself, the participating credit institutions. "

32. In § 75 (3), first sentence, the reference to " 1 " by reference to " 1 and 5a " replaced.

(33) In § 75, the following paragraph 5a is inserted:

" (5a) In the event of reciprocity, the FMA may entrure the Oesterreichische Nationalbank with a regulation to make available to the Member States the data of comparable facilities in the Member States to the extent to which the provisions of paragraph 3 of this Article are to be applied. Z 1 to 6 is accessible. The comparability shall be given if:

1.		the information system is limited to data from large customers; and
2.		access to the information system to supervisory authorities and institutions which are comparable to the categories of beneficiaries referred to in paragraph 3 (1) to (6); and
3.		the intended use of the information system shall be limited to:
a)			the exercise of financial market surveillance, or
b)			the determination of the extent of the debt.
The Regulation of the FMA shall designate the bodies to which it is to be transmitted, and shall also determine the technical and organisational procedures for the transmission of such communication. "

34. In § 93a (4), in the penultimate and last sentence, the word group shall be "of five years" through the word group "of ten years" replaced.

35. In § 93a (5), the word "five-year old" by the word "10-year old" replaced.

36. In § 98 paragraph 2 Z 7, the reference to "§ 73 (1) (1) to (12)" by reference to "§ 73 (1) (1) to (15)" replaced.

37. § 102a (8) deleted.

38. The following paragraph 47 is added to § 107:

" (47) § 22 (6c), § 22c (4), § 23 (1) (2), (7) (5), (8) (1) and (8a) (1), Article 30 (7), (8), (9) and (10), Article 39 (2) (2), (2) and (6), the Accident of Section 43 (3), § 44 (1), (4) and (5a), the Discharge of Section 63 (1a). and para. 1b, § 63 (1) (c), (2), (3), (4), (2) to (4), (5), (6), (6a) and (7), § 65 (1) and (3a), § 68 (1), Section 70 (1), Section 73 (1), (15), Section 75 (3) and (5a), Section 93a (4) and (5), Section 98 (2) (7), of the Federal Law BGBl. I No 33/2005 will enter into force on 1 July 2005. Section 102a (8) shall not enter into force on 1 July 2005. '

Article 2

Amendment of the Financial Market Supervisory Authority Act

The Financial Market Supervisory Authority Act, BGBl. I n ° 97/2001, as last amended by the Federal Law BGBl. I No 32/2005, shall be amended as follows:

1. § 3 together with headline reads:

" Liability for the activities of the FMA

§ 3. (1) The Federal Government shall be liable in accordance with the provisions of the Administrative Liability Act-AHG, BGBl, for the damage inflicted by organs and staff of the FMA in the enforcement of the federal laws referred to in § 2. 20/1949. The FMA and its staff and bodies shall not be liable to the injured party.

(2) In its activities, the FMA shall take all appropriate, appropriate and appropriate supervisory measures, in accordance with the circumstances of the individual case, in accordance with the circumstances of the individual case. It must ensure respect for financial stability. In the performance of its tasks, it may carry out the audit reports of the auditors and bodies of the companies under its supervision, as well as the audit reports of the Oesterreichische Nationalbank within the framework of its statutory audit powers in accordance with the BWG, unless it has reasonable doubts as to the accuracy or completeness of these audit reports or the technical expertise or diligence of the examiners, or if such doubts should have been expressed with due care. The same applies to the audit reports of the auditors commissioned by the FMA itself with regard to the audit procedures in accordance with the federal laws referred to in § 2.

(3) If the Federation has replaced an injured party with the damage in accordance with paragraph 1, it may request a refund from the institutions or other servants of the FMA in accordance with the provisions of the AHG.

(4) The FMA shall support the Federal Government in any appropriate manner in the administrative and restitution procedure provided for in paragraphs 1 and 2 of this article. It shall, in particular, make available all the information and documents relating to the administrative or restitution procedure and shall ensure that the Federal Government has the knowledge and knowledge of the FMA's institutions and employees on the shall be able to take up supervisory measures.

(5) The auditors appointed by the companies subject to supervision shall not be institutions within the meaning of Section 1 (1) of the AHG, unless they carry out the FMA for these examinations in accordance with the federal laws referred to in § 2. The same applies to the audit bodies of statutory audit institutions.

2. The following paragraph 9 is added to § 28:

" (9) § 3 together with the title in the version of the Federal Law BGBl. I n ° 33/2005 enters into force on 1 July 2005. '

Article 3

Amendment of the Insurance Supervision Act

The Insurance Supervision Act, BGBl. No 569/1978, as last amended by the Federal Law BGBl. I No 8/2005, shall be amended as follows:

1. In § 61b (3) fifth sentence, the citation shall be "§ 82 (1) (1), (2) to (8) and (9) to (11)" through the citation Section 82 (1) (1), (2), (2), (4), (5), (6), (6a), (7), (10) and replaced.

Section 73d (6) Z 7 is deleted.

3. § 82 (2) and (2a) are:

" (2) If the FMA has reasonable doubts that the person elected to the auditor fulfils the conditions for the election to the auditor, it may, within one month of the announcement of the election, make an application within the meaning of Section 270 (3) of the German Commercial Code (HGB) in the as amended.

(2a) In the previous financial year, the person elected to the auditor had already been appointed by the insurance undertaking as a statutory auditor and, in the event of a receipt of the announcement of the election of the auditor of the FMA, the report of the In the case of auditors pursuant to Section 83 (1) (3) or (3) (3) (3) (3) for the previous financial year, the application may be made in accordance with paragraph 3 by one month after the date of the submission of the report. "

Section 82 (3), (8) and (9) shall be deleted.

Section 82 (4) reads as follows:

"(4) The Board of Management or the Managing Directors shall immediately give the auditor the appointment of the Supervisory Board or the Board of Directors to the auditor who has been appointed by the Supervisory Board or the Board of Directors."

Section 82 (6a) reads as follows:

" (6a) In the event of the application of § 81h (2) last sentence, the auditor has to examine the existence of the legal requirements for the evaluation and in particular the amount of the silent net reserves present in the company; on the result of the results this test shall be reported. "

Section 82 (10) reads as follows:

"(10) The audit of the consolidated financial statements and the group management report shall be subject to the provisions of Section 1 (1), (1), (2), (2a), (4), (5), (6), (6a) and (7)."

8. The following paragraph 5 is added to § 119i:

" (5) § 61b (3), § 73d (6) and § 82 in the version of the Federal Law BGBl. I n ° 33/2005 enter into force on 1 July 2005. '

Fischer

Bowl