127. Federal law that modifies the Stock Exchange Act and securities supervision Act
The National Council has decided:
Amendment to the Stock Exchange Act
The Stock Exchange Act, Federal Law Gazette No. 555/1989, as last amended by Federal Law Gazette I no. 70/2004, is amended as follows:
1. in article 26, paragraph 1, the phrase "and 6" is omitted.
2. § 48 para 1 No. 2 is:
"2. violates a duty pursuant to section 48 d para 1 to 6, 9, or 10, first sentence, or regulation in accordance with section 48f or against an obligation according to one on the basis of § 48 d para 11 or section 48f para 10 adopted the FMA, or employs an accused person contrary to a professional disqualification imposed pursuant to section 48q para 3," 3. § 48 b receives the paragraph called "section 48 s.".
4. § 48c receives the paragraph called "section 48 t.".
5. the heading are § 48a and § 48a:
§ 48a. (1) for purposes of articles 48a up 48r following definitions shall apply:
1. "Inside information" is publicly unknown, exact information, affecting directly or indirectly one or more issuers of financial instruments or one or more financial instruments and which, if she were publicly known, would be suitable, the prices of these financial instruments, or the course on participative derivative financial instruments significantly to influence, because they would use a reasonable investor probably as part of the basis of his investment decisions.
(a) a piece of information is true exactly, when she captured a number of already existing or such facts and events, where one can assume with reasonable probability that they will occur in the future, and moreover also certainly is enough to allow a conclusion on the potential impact of these facts or events on the prices of financial instruments or derivative financial instruments related.
(b) In relation to derivatives on commodities, "Insider Information" is not publicly known, accurate information that directly or indirectly affects such a derivative or more such derivatives and of the participants in the markets on which such derivatives are traded, would expect that they would receive this information in accordance with the permissible market practice in the relevant markets. Information that directly or indirectly affect such a derivative or more such derivatives are regularly provided available to the participants in such markets or in application of laws, regulations and administrative provisions, trade rules, agreements or rules that are common on the market, on which the commodity derivatives be traded, or on each underlying commodity market, be published must. In relation to commodity derivatives which are perceived otherwise assigned to the FMA responsibilities according to this federal law by the Federal Ministry of Economics and labour, the §§ 48i are 48p but not to apply.
(c) for persons who are entrusted with the execution of orders relating to financial instruments, "Inside information" means information after lit. a or b, which was communicated by a customer and referring to the pending orders of the customer.
2. (a) are "Market manipulation") transactions or purchase or sales orders, the aa) false or misleading signals for the range of financial instruments, the demand for, or their course could give or provide, or from) affect the course of one or several financial instruments by a person or acting in consultation, several people in the way that an abnormal or artificial level is achieved, unless , that the person who has completed the transactions or issued the orders, had legitimate reasons and that these transactions or orders do not violate the accepted market practices on the regulated market concerned.
In assessing the shops or purchase or sales orders in accordance with letter. a as a market manipulation are to take into account in particular the following circumstances - which is not necessarily to be considered such as market manipulation - without prejudice to the cases of market manipulation pursuant to paragraph 2:
the extent to which orders to trade given or transactions undertaken represent in a significant part of the daily volume of transactions in the relevant financial instrument on the regulated market, in particular when these activities lead to a significant change in the price of the financial instrument;
the extent to which orders to trade given or transactions, which were made by people with a significant buying or selling position in a financial instrument lead to significant changes in the price of the financial instrument or a related derivative financial instruments or but of the underlying assets that are admitted to trading on a regulated market;
whether transactions undertaken lead to no change in the identity of the beneficial owner of a financial instrument admitted to trading on a regulated market;
the extent in which orders to trade given or transactions undertaken include reversals of positions within a short period of time and make up a significant part of the daily volume of transactions in the relevant financial instrument on the regulated market concerned, and might be associated with significant changes in the price of a financial instrument admitted to trading on a regulated market in conjunction;
the extent in which orders to trade given or transactions undertaken within a short time span in the trading session be focused and lead to a price change which is reversed as a result;
the extent in which orders to trade given change the best made courses for supply and demand of financial instruments approved on a regulated market, or more generally change the presentation of the order book, which is available to market participants, and may be cancelled prior to their actual settlement;
the scope in which business orders exactly or approximately to a certain time or transactions at this point be settled on which the reference prices, settlement prices and ratings are calculated, and this leads to price changes, which affect just this prices and valuations.
b) transactions or purchase or sales orders under pretenses or by using any other acts of deception.
In assessing the shops or purchase or sales orders in accordance with letter. (b) as market manipulation are to take into account in particular the following circumstances - which is not necessarily to be considered such as market manipulation - without prejudice to the cases of market manipulation pursuant to paragraph 2:
whether certain persons orders to trade given or transactions undertaken previously or subsequently by the dissemination of false or misleading information by same or closely related to them were accompanied by related persons;
whether orders to trade given by persons or transactions are settled by them, before or after these persons or persons closely related to them were created analysis or investment recommendations or passed on, that are inaccurate or biased or obviously influenced by material interest.
(c) dissemination of information through the media including the Internet or in any other way which give false or misleading signals about financial instruments or could give, including through the dissemination of rumours and false or misleading news, if the knew the person who disseminated this information, or would need to know that they were false or misleading. Media employees, acting in the exercise of their profession, is such a dissemination of information without prejudice to section 48q para 1 and 2, taking into account the rules governing their profession to assess, except that these individuals from the dissemination of that information directly or indirectly benefit or advantage profits.
3. "Financial instruments" are a) securities within the meaning of Directive 93/22/EEC, b) units in undertakings for collective investment in transferable securities, c) money market instruments, d) financial futures (Futures), including equivalent cash-settled instruments, e) rate agreements (forward rate agreement), f) interest rate and currency swaps and swaps on equities or equity index (equity-swaps), g) buying and selling options on all under lit. (a) falling to f instruments including equivalent bar-settled instruments; (this includes in particular currency and interest rate options, h) commodity derivatives, i) all other instruments which are admitted to trading on a regulated market in a Member State or for which an application has been made to trading on such a market.
4. "Regulated market" is a market within the meaning of article 1 No. 13 of Directive 93/22/EEC and of the unregulated third market pursuant to section 69. However, sections 48 d and 48f are not applicable for transport items approved in the unregulated third market.
Conventions, which are expected reasonably in one or more financial markets and are recognized by the FMA regulation referred to in paragraph 3 are "Accepted market practices".
6 'Person' means a natural or a legal person.
7. "Competent authority" is the competent authority designated in accordance with article 11 of Directive 2003/6/EC by the Member States.
8. a "person discharging managerial responsibilities within an issuer" is a person, a) that belongs to an administrative, management or supervisory body of the issuer, or b) as executive leadership while not under lit. called a organs belongs to, but regular access to insider information directly or indirectly related to the issuer has and has the power to make business decisions about future developments and business prospects of this issuer.
9. a "person who is closely related to a person, the leadership perceives when an issuer of financial instruments' is a) the spouse of the person who carries out these leadership tasks, or other partner, which is equated under national law a spouse, b) under national law dependent child of the person who carries out these leadership tasks, c) other family member of the person who carries out these leadership tasks , that lived before the relevant business for a period of at least one year with this in a household, d) a legal person, trust active institution or person society, whose leadership by a person after Z 8 or the lit. a perceived to c, directly or indirectly controlled by such a person, founded for the benefit of such a person, or whose economic added interests largely correspond to those of such a person.
10. "People who professionally carry out transactions with financial instruments", are particularly investment firms and credit institutions.
11. an "investment firm" is a legal person within the meaning of article 1 No. 2 of Directive 93/22/EEC.
12. a 'credit institution' is a company within the meaning of article 1 item 1 of Directive 2000/12/EC.
(2) "Market manipulation" in the sense of paragraph 1 Z 2 considered in particular:
1. secure a dominant position in relation to the offer of a financial instrument or the demand by one person or several persons acting in consultation with the result of a direct or indirect fixing of purchase or selling prices or other unfair trading conditions;
2. purchase or sale of financial instruments at the close of the stock market with the result that investors who act on the basis of the closing price, be misled
3. advantage of occasional or regular access to the traditional or electronic media by delivering an opinion to a financial instrument (or indirectly to the issuer of the financial instrument), where previously entered into positions at the financial instrument and then benefit from the effects of the opinion on the price of the financial instrument is drawn, without having at the same time this conflict of interest in a proper and efficient way is communicated to the public.
(3) whether a "accepted market practices" referred to in paragraph 1 is Z 5, the FMA may lay down by regulation.
1. She has this connection without prejudice to their cooperation with other authorities in particular to take into account: a) the relevant practice for the market as a whole is how transparent, b) if it ensures the functioning of market forces and the free interplay of supply and demand; (under the analysis of in particular, the impact of the relevant market practice against the main market parameters, such as the specific market conditions before the introduction of the relevant market practice, the weighted average price of a trading day or the daily closing price, c) extent to which the relevant practice market liquidity and efficiency of the affects, d) extent to which the relevant practice takes into account the trading mechanism of the relevant market and enables market participants , to respond adequately and in a timely manner to the new market situation created by the practice e) risk represents the relevant practice for the market integrity of other related, directly or indirectly, regulated or non-regulated markets for this financial instrument within the community, f) which result the competent authorities or other in article 12 paragraph 1 of Directive 2003/6/EC referred to authorities in their investigation of the relevant market practice came to , in particular whether they have found a violation of market abuse legislation or the rules of behaviour on the relevant market or in other directly or indirectly related markets within the community, g) which structure of the relevant market characteristics, E.g. whether it is a regulated market or not, which financial instruments are traded, which market participants are represented and what proportion of the trade accounted for by private investors.
Market practices, in particular new or emerging market practices may be set not as inadmissible because they were set before yet not expressly considered admissible.
The FMA regularly to check the market practices designated as permitted their further admissibility, taking into account particularly significant changes in the trading environment of the relevant market changed trading rules or infrastructure of the market.
2. before issuing a regulation pursuant to this paragraph and without prejudice to section 48q para 2, the FMA is the publicly traded companies, as well as the representation of the interests of issuers to consult any other market operators, financial service providers and consumers. In the context of this consultation process, the FMA to consult also competent authorities of other Member States, in particular if there are similar markets (with similar structures, business volume, transactions). Prior to amendment or repeal of such regulation is the same consultation process carried out.
3. in regulation, has a reasonable description of the market practice to be carried out and to lead are the factors taken into account when deciding on the admissibility of the relevant market practice, in particular if the admissibility of the same practice on different markets was perceived differently.
4. the regulation is to submit also the Committee of European securities regulators at the same time with their enactment."
6. after Article 48a, following §§ 48 are inserted until 48r b:
"Misuse of insider information
§ 48 b. (1) who as an insider an insider information with the intent of exploits, himself or a third party to obtain a financial advantage, by he
1 financial instruments affected buys, sold or offered by a third party to purchase or sell, endorse or this information without being restrained, makes a third party accessible 2., the Court with imprisonment up to three years, if by the Act a 50 000 euro of pecuniary benefit is given to punish up to five years but with imprisonment of six months.
(2) Whoever, without being insider, is an insider information that was communicated to him or has otherwise become known, exploits in the manner referred to in paragraph 1 with the intent to gain a pecuniary benefit oneself or a third party, by the Court to imprisonment up to one year or with fine a 50 000 euro of pecuniary benefit provides up to 360 daily rates, if by the Act , but to punish with imprisonment up to 3 years.
(3) anyone else as an insider or without being Insider to punish an information in knowing or grossly negligent lack of knowledge of an insider information that, in paragraph 1 referred to way, but without the intent to gain a pecuniary benefit oneself or a third party, is used by the Court to imprisonment up to six months or with fine of up to 360 daily rates.
(4) Insider is, who has access as a member of the administrative, management or supervisory bodies of the issuer or otherwise because of his profession, occupation, his duties or his participation in the capital of the issuer to insider information. As well, an insider is who gave the information through the Commission of criminal acts. It is a legal entity, those natural persons are Insider involved in the decision to do the business for the account of the legal person.
section 48c. Who runs market manipulation, commits an administrative offence, unless the Act constitutes not a criminal offence falling within the jurisdiction of the courts and by the FMA fined to punish up to 35 000 euro. The VStG is to apply. The attempt is punishable. A pecuniary benefit achieved is to explain by the FMA as forfeited.
§ 48 d. (1) the issuer of financial instruments have inside information which directly concerns them without delay to the public. The occurrence a number of circumstances or an event - although is still not formally established - by the issuer without delay to announce. All major changes in the terms of an already disclosed inside information are to announce immediately after the occurrence of these changes. This has to be carried out such as the disclosure of the original information on the same way. The publication of inside information to the public as simultaneously as possible for all categories of investors in the Member States in which those issuers have applied for the admission of their financial instruments to trading on a regulated market or already received, must be made. The issuers have any inside information which they must announce the public viewing on its website for a reasonable period.
(2) an issuer may postpone, first sentence, the disclosure of information referred to in paragraph 1, if such notification could harm his legitimate interests provided that this omission is not suitable, to mislead the public, and is the issuer is able to ensure the confidentiality of information.
1 legitimate interests in particular before are: a) ongoing negotiations or related circumstances, if the result or the normal flow of these negotiations by the publication would probably be affected. Especially if the financial viability of the issuer is strong and immediately at risk - even if he was not yet under applicable insolvency law falls - the disclosure of information for a limited period may be delayed, such disclosure should seriously endanger the interests of existing and potential shareholders by specific negotiations would be foiled, which actually to ensure intended a long-term financial recovery of the issuer;
(b) a decision made by the management body of an issuer or contracts, if this measures the approval of another body of the issuer require, unless the structure of such issuers foresees the separation between these organs and a disclosure of information prior to approval together with the simultaneous announcement that this approval is still pending, would jeopardise the correct assessment of the information by the public.
2. the issuer will have to ensure the confidentiality of inside information, to control access to this information. In particular, they have a) effective precautions to take to prevent that other persons will gain access to this information as such, the accessing of insider information for the exercise of their functions within the issuing institution is essential;
(b) the necessary measures to take in order to ensure that any person who has access to such information acknowledges the legal obligations deriving from it and is aware of the sanctions, which are imposed in a misuse or an improper dissemination of such information;
(c) the necessary measures to take, which allow an immediate disclosure of information in the event that the issuer is not in the position was to ensure the confidentiality of the relevant inside information without prejudice to the paragraph 3, second sentence.
The issuer has the FMA immediately of the decision to postpone the disclosure of insider information, to teach.
(3) the issuer or those acting on their behalf or for their account who give insider information in the normal course of the exercise of their work or their profession or the performance of their duties to a third party, have known completely and in fact this information to the public to give, at the same time deliberate disclosure of the information and immediately in the case of a non-intentional disclosure. This obligation shall not apply, if the person who passed the information is obliged to maintain confidentiality is, regardless of whether this obligation resulting from legal or administrative provisions, a statute or a contract. The issuer, or the persons acting on their behalf or for their account have a directory of persons to carry out for them on the basis of a contract of employment or otherwise operate and have regular or cause-related access to insider information. The issuer, or the persons acting on their behalf or for their account must regularly update this directory and submit the FMA upon request. Insiders are for at least five years to be kept after it is created, or, if necessary, after their last update. The people committed to the creation of lists of insiders have to ensure that any person who has access to inside information, in writing accepts the obligations arising out of the laws, regulations and administrative provisions and explains in writing the sanctions to be aware of which are imposed in a misuse or an improper dissemination of such information.
1. the Insider directory has to contain the following information: a) the personal data of those who have access to inside information, b) the reason for this person is in the directory, c) the create and update of the list of insiders.
2. insiders have to be immediately updated if a) changes the reason for already any person, b) new persons to the directory must be added, c) in the directory covered persons have access to insider information have more; in this case, it is to specify at what point this is true.
(4) persons who perceive leadership if an issuer of financial instruments based in Germany, as well as persons in close relationship with them, where appropriate, have the FMA all transactions made by them on their own account with shares admitted to trading on regulated markets and equity securities of the issuer or related derivatives with him related companies (section 228 para 3 German commercial code) to report. Similarly, the persons have to publish this information without delay. The seat in Germany pursuant to this paragraph is equal to keep, if the issuer which has its seat outside the EEA, each year must submit a document 2003/71/EC domestically according to article 10 of the directive. The publications referred to in this provision can be made with its consent in the ways of the FMA.
1. the message shall contain: a) name of the person discharging managerial responsibilities within an issuer of financial instruments, or the person's name, which may refer to such a person in close relationship, b) reason for the registration, c) name of the relevant issuer, d) description of the financial instrument, e) nature of the transaction (I.e. arrival or sale), f) completion date and place at which the business was made , g) price and volume of business.
2. the message of the FMA shall within five working days after the date of the financial statements to be made, may however be postponed until the total amount of the transactions referred to in this paragraph the sum of EUR 5 000. If this amount is not reached at the end of the calendar year, the message can be avoided. In determining the total completion are the transactions referred to in this paragraph the persons with managerial responsibilities referred to in the first sentence and of all persons who are to them closely, to be together.
(5) the persons who create analyses of financial instruments or issuers of financial instruments or for information distribution channels or the public certain other information recommending or suggesting investment strategy, or share, have to ensure that the information is properly presented, and any interests or conflicts of interest relating to the financial instruments to which that information relates, be disclosed.
(6) the stock exchange company have structural arrangements for preventing and detecting market manipulation practices to meet.
(7) paragraph 1 to 5 can take in order to comply with all necessary measures the FMA, to ensure that the public is properly informed.
(8) public bodies which disseminate statistics, which could significantly affect the financial markets, have this in a proper and transparent way to do.
(9) the persons who professionally carry out transactions with financial instruments, have immediately to notify the FMA if they the ended up in them on basic knowledge facts and information have reasonable grounds, that a transaction might constitute an insider dealing or market manipulation. The persons have to decide whether there exists a reasonable suspicion of the existence of an insider business or a market manipulation pursuant to § 48a at a transaction from case to case. This reporting obligation is without prejudice to article 48e para 5 for the persons, who have their registered office or a branch in Austria. The FMA reports her reported suspicious transactions authorities responsible for the regulated markets concerned without delay further if necessary. The reporting persons have following the FMA data to send:
1. Description of the business including the type of contract (E.g., limit order, market order, or other order characteristics) and type of trade (such as block trade), 2. reasons for the suspicion of market abuse, 3. information for the purpose of the identification of the persons on whose behalf the transactions were carried out, as well as any other of these transactions of involved persons, 4 function, in which the person subject to the obligation to report is (E.g., in its own name or on behalf of third parties) , 5 other information that may be for the inspection of suspicious transactions of concern.
Should this information at the time of the message is not available, at least the reasons to specify, which lead to the presumption of the person be refunded message, it could be in transactions to insider dealing or market manipulation. The other information shall be communicated the FMA, as soon as they are available. The message can be accessed by post or by electronic means, via fax or phone, where in the case of a telephone communication at the request of the FMA to furnish is a written confirmation.
(10) the persons who submit a message when the FMA pursuant to paragraph 9, may teach in particular the persons on whose behalf the transactions have been carried out or standing with these people in relationship people, about the done message anyone else. Any claim for compensation from the fact of failure to publish of this teaching is not, unless in good faith was traded. Negligence does not harm the good faith. The FMA must tell no one others, in particular the persons on whose behalf the transactions have been carried out, the name of the person who has reported these transactions, if it would harm the reporting person or could. An after paragraph 9 message at the FMA does not constitute a breach of any contractually or through any legislative or administrative provisions of regulated restrictions on publication and shall release the person who has filed the message, from liability for damages, unless she acted in good faith. Negligence does not harm the good faith.
(11) the FMA is authorised to assess the form, the content and the type of transmission of messages/announcements/briefings/disclosures provided in accordance with paragraphs 1 to 5 and 9 by regulation; This caution is to take legitimate interests of issuers and investors, as well as international standards of developed capital markets. With regard to the type of transmission, certain communication techniques may be prescribed in the interest of the rapid transmission of information, taking into account the respective State of the art by the FMA.
Article 48e. (1) § 48a-48 d do not apply to transactions that are made for monetary or exchange rate policy reasons or in the framework of the management of the public debt of a Member State, a federal State, the European system of central banks, a national central bank or another officially appointed place or establishment of acting on their behalf §.
(2) § 48a-48 d § apply to any financial instrument which is admitted to trading on a regulated market in at least one Member State or for which an application for authorisation set to trading on such a market regardless of whether the business or not even actually made in this market.
(3) § 48b also applies to any financial instrument which is not admitted to trading on a regulated market in a Member State, which value but depends on a financial instrument within the meaning of paragraph 2.
(4) (1) to 3 does not apply to issuers who have requested no admission to trading on a regulated market in a Member State for its financial instruments or receive § 48 d.
(5) in the sections 48a-48 d regulated prohibitions and commandments are to apply to acts, the
1. in Austria or abroad should be made and relate to financial instruments which are admitted to trading on a regulated market in Austria located or operated or for which a corresponding application; made to trading on such a market
2. in Austria are committed and relate to financial instruments which are admitted to trading on a regulated market in a Member State or for which a corresponding application was made to trading on such a market.
(6) § 48B and 48 c do not apply § for trading in own shares (purchase and sale) in buy-back programmes and the stabilisation of a financial instrument, if carried out such transactions in accordance with Regulation (EC) no 2273/2003 of the Commission of 22 December 2003.
following definitions apply section 48f. (1) for the purposes of this provision:
1. 'Investment firm' means any person within the meaning of article 1 No. 2 of Directive 93/22/EEC;
2. 'Credit institution' means any legal person within the meaning of article 1 item 1 of Directive 2000/12/EC;
3. "Recommendation" is an analysis or other information distribution channels or the public certain explicit or implicit information recommending or suggesting investment strategy in relation to one or more financial instruments or issuers of financial instruments, including a current or future assessment of the value or the price of such instruments;
4. "Analysis or other information recommending or suggesting investment strategy" is a) a, produced by an independent analyst, an investment firm, a credit institution, an other person, whose main business is in the preparation of recommendations or a natural person working at the facilities mentioned in the framework of a contract of employment or similar information that directly or indirectly represents a particular investment recommendation to a financial instrument or an issuer of financial instruments , b) an other than in lit. a persons created information which directly recommends a particular investment decision with a financial instrument;
5. 'relevant person' means a natural or legal person, in the exercise of their profession or in the scope of their business activities created recommendations or to disclose;
6. "Issuer" is the issuer of a financial instrument to which the recommendation directly or indirectly relates;
7. "Information dissemination channel" is a channel by which information for the public; made actually or likely accessible "probably made the public accessible information" is information that is accessible to a large number of people;
8 'adequate control' is any scheme - including the self control - the Member States pursuant to Directive 2003/6/EC meet.
(2) a person who recommends, has
1. clearly and unequivocally the identity of the person to indicate, that has made the recommendation in particular name and job title of the person who created the recommendation and name of the legal person who is responsible for the preparation of the recommendation;
2. unless the relevant person to an investment firm or a credit institution is, to specify the identity of the relevant competent authority;
3. unless is it the relevant person neither an investment firm nor a credit institution, but self control standards or professional conduct shall apply to the person, to refer to the above mentioned standards or rules;
4. If not written recommendations are, to indicate where the information according to Z 1-3 to find are where this information directly and easily to the public must be accessible E.g. through the Internet address of the relevant person;
The Z 1 to 3 shall not apply to media employees who are subject to an equivalent appropriate regime - including equivalent appropriate self control - in the Member States, provided that the above provisions have a similar effect as in this paragraph.
(3) a recommendation is to make sure that
1. facts are clearly distinguished from interpretations, estimates, opinions and other types of non-factual information
2. all sources are reliable or in case of doubt on the reliability of the source clear, pointed out
identified all forecasts, predictions and course objectives clear as such and that the material assumptions underlying their creation or use is pointed out
4. If it is a non-written recommendation, recommendation recipients also the circumstances stated in the Z 1-3 clear and easily identifiable are.
The relevant persons have any recommendation on request of the FMA as reasonable to substantiate. This paragraph shall not apply to media employees who are subject to an equivalent appropriate regime - including equivalent appropriate self control - in the Member States, provided that the aforementioned method has similar effects as in this paragraph.
(4) is the relevant person, an independent analyst, an investment firm, a credit institution, an associated entity or other relevant persons whose main business consists in the preparation of recommendations or to one of the mentioned bodies within the framework of a contract of employment or similar active person, so the person has to make sure also that the recommendation
1 all primary sources, including the relevant issuer, is referenced as well as whether the recommendation against the issuer in question; exposed and changed after this disclosure before their deployment, ensure
2. all valuation bases or methods sufficiently; grouped together to evaluate a financial instrument or the issuer of a financial instrument or establishing a targeted price target for a financial instrument
3. the importance of the created recommendation (E.g. "Purchase", "Sell" or "Hold"), which contains possibly the time frame of the investment to which the recommendation relates, sufficiently explained and any risks appropriately will be warned, including a sensitivity analysis of the assumptions underlying the;
4. reference made is an update of the recommendation frequency provided for, if necessary, and on any changes in the previously announced goal of;
5. the time to which the recommendation for the first time was released, clearly and unequivocally is specified, and the date and time of the listed classes of financial instruments;
6 If the recommendation differs from those created in the 12 months immediately prior to their release for the same financial instrument or same issuer, on the date of the earlier recommendation clearly and unequivocally pointed out.
Results in the compliance with the rules referred to in no. 1 to 3 that which are disproportionate due to its required information compared to the length of the recommendation, it is sufficient that the recommendation itself clearly and unequivocally is referenced in the place, where the required information immediately and easily accessible is to the public, eg a direct Internet connection to the mentioned information at the appropriate address of the relevant person , provided the method used or valuation basis has not changed. The same applies in the case of non-written recommendations.
(5) that have relevant persons in the recommendation to disclose all relationships and circumstances where it can be expected that they impair the objectivity of the recommendation, in particular, if relevant persons have a significant financial interest in one or more financial instruments, which are the subject of the recommendation, or a significant conflict of interest relating to an issuer, refers to the recommendation the , is. Where the relevant person is a legal person, this applies also to all natural or legal persons that are working for the legal person within the framework of a contract of employment or the like and who were involved in preparing the recommendation. It is a legal entity with the relevant person, as the information to be open in accordance with this paragraph include, in particular:
1. any interests or conflicts of interest of the relevant person or its affiliated companies, which are accessible to the persons involved in the preparation of the recommendation, or where it can be expected, that they are accessible.
2. any interests or conflicts of interest of the relevant person or with their related legal persons that can have the persons who, although not involved in the preparation of the recommendation, however had access to the recommendation prior to the disclosure of the recommendation to clients and the public or had known.
Results in compliance with the regulations referred to in this paragraph that which are disproportionate because of the required disclosures in comparison to the length of the recommendation, it is sufficient that the recommendation itself clearly and unequivocally the place referenced, where these disclosures directly and easily can be viewed by the public, such as a direct Internet connection to disclose at the appropriate address of the relevant person. The same applies in the case of non-written recommendations. This paragraph shall not apply to media employees who are subject to an equivalent appropriate regime - including equivalent appropriate self control - in the Member States, provided that the aforementioned method has similar effects as in this paragraph.
(6) if the recommendation by an independent analyst, an investment firm, a credit institution, an affiliated entity or an other relevant person whose main business consists in the creation of recommendations created, is by the named persons in addition to the obligations laid down in paragraph 5 to ensure that clear the following information relating to their interests and conflicts of interest and be disclosed clearly in the recommendation :
1 major shareholdings that exist between the relevant person or of related legal person on the one hand and the issuer on the other hand. These major shareholdings include at least the following cases: a) if shares are held by more than 5% of the entire issued share capital of the issuer of the relevant person or of related legal person, or b) if shares; followed by over 5% of the entire issued share capital of the relevant person or an associated entity of the issuer
2. other significant financial interests, which is the relevant person or a connected person in relation to the issuer;
3. where appropriate, an opinion about whether the relevant person or a legal person associated with it is a market maker or liquidity provider in the financial instruments of the issuer;
4. where appropriate, a statement that the relevant person or a legal person related was lead or co-lead in the previous twelve months the public issuance of financial instruments of the issuer;
5. was a compensation was where appropriate, an opinion to the question whether the relevant person or a legal person related with the issuer has taken an other agreement concerning the provision of investment banking services provided this has not the disclosure of confidential business information and the agreement in the previous twelve months in force or in the same period on their basis;
6. where appropriate, a statement, whether the relevant person or a legal person related with the issuer has reached an agreement on the establishment of investment recommendations.
Actual organisational or administrative arrangements within the investment firm or the credit institution are the prevention and avoidance of conflicts of interest relating to recommendations, including information barriers, to generally disclose in the recommendation. Second set for the natural or legal persons working under a contract of employment or similar for an investment firm or a credit institution includes in particular the disclosure of the question of whether the remuneration of such persons on investment banking business of the investment firm or the credit institution or related legal persons is bound the requirements set out in paragraph 5. If the individuals receive the shares of the issuer before its public issue or purchase, the purchase price and the date of purchase are to disclose in the recommendation also. Investment firms and credit institutions have quarterly to disclose the proportion of all recommendations, "Acquisition", "Hold", "Sell" or equivalent terms, as well as the proportion of issuers corresponding to the above categories, for which the investment firm or the credit institution in the previous twelve months significant investment banking services provided. Results in compliance with the regulations referred to in this paragraph that which are disproportionate because of the required disclosures in comparison to the length of the recommendation, it is sufficient to refer to this disclosure immediately and easily accessible is to the public, eg a direct Internet connection to disclose at the appropriate address of the investment firm or the credit institution in the recommendation itself clearly and unequivocally on the place. The same applies in the case of non-written recommendations.
(7) the recommendation produced by a third party will be passed by a relevant person under their responsibility, the relevant person has clearly and unequivocally to specify their identity in the recommendation.
(8) the recommendation produced by a third party passed on information intended for the public in substantially altered, the one who gives the advice, to ensure that this information contain a clear indication of the changes made in the individual. If the significant change in an opposing recommendation (E.g. a recommendation to "Buy" is in "Hold" or "Sell" or vice versa), mutatis mutandis apply paragraph 2 to 5 also for the person who passes the recommendation,. Also have relevant legal persons who themselves, or through natural persons share a substantially altered recommendation to prepare a formal, written policies, so that the recipients of substantially altered recommendation on the site referenced are, where they can access to the identity of the creator of the recommendation, the recommendation itself and to the disclosure of the interests of the creator or of conflicts of interest can get, if this information is available to the public. Sentences 1 and 2 shall not apply to press reports of recommendations produced by third parties if these recommendations were not significantly changed. In transmitting the summary of a recommendation produced by a third party, the relevant persons be continue the summary have to make sure that it is was a clear and non-misleading summary of the output document and referred to the place, where the disclosures related to the source document directly and easily to the public are accessible, unless these details are available to the public.
(9) in the event that the relevant person an investment firm, a credit institution or one of these within the framework of a contract of employment or similar is employed natural person, passes on third-party recommendations, applies:
1. the name of the authority responsible for the investment firm or the credit institution is specified clearly and unequivocally.
2. the creator not already passed on this recommendation through a distribution channel, the requirements provided for in subsection 6 for the creator will apply to those who pass on the recommendation.
3. the investment firm or the credit institution makes a significant change to the recommendation, you are the creator referred to in paragraph 2 to 6 to comply with those provisions.
(10) the FMA is authorised to assess the form and content of the information provided pursuant to this provision by regulation; This caution is to take legitimate interests of issuers and investors, as well as international standards of developed capital markets.
Special provisions for the criminal misuse of inside information
section 48 g. (1) as far as the following not something else is arranged, the provisions of the code of criminal procedure apply to the criminal misuse of inside information 1975, BGBl. No. 631 (Ccrp).
(2) the special rules for the criminal misuse of inside information also apply to the proceedings of a fact, that at the same time meets the offence of misuse of inside information and the a legal offence of otherwise.
§ 48 h. The criminal misuse of inside information is the regional court for criminal matters in Vienna. In the case of § 48 of para 1 b 2nd case, the trial and judgment precipitation rests magistrate court.
§ 48i. (1) the public prosecutor's Office and Court have basically investigations in the framework of its powers to instruct the FMA to section 48q reconnaissance of suspected of misuse of inside information. You are also entitled to instruct security authorities and their bodies if this appears appropriate on the basis of the carried out investigations, in particular with regard to the nature or extent. This is particularly Assumable if it is carrying out of seizures, arrests or searches. The same applies if the facts could meet the facts of other action threatened with judicial punishment.
(2) If a particular person of the misuse of inside information is suspicious, the FMA has to file a complaint to the public prosecutor's Office in Vienna. -She investigation finding of the facts and to the enlightenment of the 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 or court.
(3) the FMA is the Federal Criminal Police Office (§ 6 para 1 of the Security Police Act, Federal Law Gazette No. 566/1991) without undue delay about the suspicion of misuse of inside information and the investigation carried out by her to communicate and to give him the opportunity to gain knowledge of their results. Were tasked with investigations security authorities and their bodies, the FMA shall be given the opportunity to participate in the investigation. Urgent official acts are in danger in delay making, the FMA without is to give undue delay by the investigations of the police and security agencies to communicate and their opportunity to gain knowledge of their results.
(4) 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.
section 48j. (1) the FMA with maximum acceleration is orders of the public prosecutor or the Court of investigation to do, over any obstacles she has to notify the public prosecutor's Office or court immediately.
(2) the FMA has to grant access to the file public prosecutor's Office and Court at any time and to provide the necessary information.
§ 48 k. (1) the FMA is the position of said in criminal proceedings because of misuse of inside information.
(2) as Prosecutor in place of the public prosecutor's Office and as intervener, the FMA other than the rights that otherwise come to an injured person, has the following rights:
1. she can fight judicial decisions to the same extent as the public prosecutor's Office and demand the reopening of the criminal proceedings, 2. nullity complaint require not the signature of a defender, 3. the timing of holding negotiations (§§ 181 and 182 StPO) and of oral proceedings in appeal is to inform you, 4 officials can speak by holding negotiations and hearings in the appeal proceedings and submit proposals.
(3) the presumption of the rescission of the persecution (section 46 paragraph 3 StPO) is excluded against the FMA as a Prosecutor.
section 48 l. Judicial procedures and other documents that notify you in accordance with this Federal Act are basically without to deliver proof of delivery, are the FMA. The summons to the main proceedings, judicial procedures and other documents against which an appeal or an appeal is to the FMA, are to deliver you with proof of delivery (sections 13 to 20 of the extra law) or transmit by facsimile or electronic legal transactions (section 89a GOG).
section 48 m. The Prosecutor sets back the display because of suspicion of misuse of inside information, or she withdraw from further persecution of the misuse of insider information, so the Prosecutor has immediately post the reasons for that purpose in accordance with Article 48a of the StPO of FMA.
§ 48n. Before a release after the §§ 90 c paragraph 4, 90 d para 4 or 90f paragraph 3 StPO has to give opportunity to comment the public prosecutor or the Court of the FMA.
§ 48o. Also, the FMA is every complaint and every indictment because of the misuse of insider information to deliver; the public prosecutor has to present the Court a copy of the Strafantrages or the indictment for the FMA.
§ 48p. (1) criminal proceedings costs include also the expenses resulting of the FMA as equivalence or Prosecutor at the Office of the public prosecutor's Office; they are not covered by the flat-rate cost.
(2) the costs that adult, are taken into account unless they especially to replace Z 3, 4 or 5 StPO are according to § 381 para 1 in the determination of the flat-rate fee of the FMA in the services of the criminal justice system.
(3) only cash expenses are the FMA and also that of the Finanzprokuratur pursuant to § reimbursed, 5 of the Pro-curate urgesetzes, Gazette No. 172/1945, fees.
Monitoring powers of the FMA
section 48q. (1) without prejudice to the competence of courts and law enforcement authorities, the FMA has to monitor compliance with the sections 48a to 48f. For this purpose, it is entitled:
1 documents of all kinds to see and to get copies of them, 2nd from anyone information request, even by people who are successively involved in the transmission of orders or the execution of the acts concerned, as well as by their clients, and, if necessary, to summon a person and heard 3. investigations on the ground making, 4 to the Act already adopted results of the monitoring of telecommunications (sections 149a para 1 No. 2 and 149 m StPO) to see and to get copies of them (article 149 c para) 3 last sentence).
(2) the FMA has to set up an Office in her Department for purposes of the consultation of market participants on any change to the legislation.
(3) the FMA the Exchange operating company may Commission related to combat market manipulation and insider trading, to suspend trading in the relevant financial instruments. In a proceeding under section 48 c, the FMA for the duration of the proceedings may impose a disqualification from the practice of a profession of the accused, unless the accused is strongly tatverdächtig, this professional activity with the offence concerned by the proceedings in context and, if the accused is a danger could repeat the act otherwise.
(4) the FMA can acts, which were used for violations the § 48a to 48f, in accordance with the Z 1 to 3 biometrical or publicly disclose.
1. in the case of an official act in an ongoing procedure, the FMA has to refrain from naming the person concerned, unless, they are already publicly known, or to set published false information in the media, the FMA is, or there is danger in delay.
2. in the case of the imposition of a sanction, the FMA can the names of persons or companies against which the sentence was imposed, the names of the companies, for the people are responsible, against which a sentence was imposed, as well as the imposed sanction biometrical or publish. All of the acts after a procedure with notice subject to FMA considered sanctions within the meaning of this provision.
3. the FMA has to refrain from issuing a report about official acts or a related publication, if a) providing the information or the publication which would significantly jeopardise financial stability or b) the supply of the information or the publication concerned parties would lead to a disproportionate damage at one of the information or the publication or c) by granting the information proceedings or measures , in the public interest are, thwarted, makes it difficult, delayed or endangered be could.
(5) the provisions of this federal law shall be without prejudice to existing under other federal laws relating to professional secrecy.
§ 48r. (1) the FMA has to cooperate with the competent authorities of the other Member States, if this is the fulfilment of the tasks of the competent authorities in accordance with the directives 2003/124/EC, 2003/6/EC, 2003/125/EC and 2004/72/EC, Regulation (EC) No. 2273/2003 or is required in accordance with articles 48a up 48q. The FMA has to afford mutual assistance the competent authorities of the other Member States and in turn can take assistance in claims. The FMA and the competent authorities of the other Member States to exchange information and cooperate in investigations.
(2) the FMA has to submit to the competent authorities of the other Member States at their request without delay any information that are necessary for the purpose referred to in paragraph 1. If required, the, the information requests addressed to the FMA, to take the necessary measures to obtain the requested information. The FMA unable immediately to provide the requested information, is she the reason for this to be communicated to the requesting competent authority. Information transmitted in the same way about their request to the FMA by the competent authorities of other Member States are subject to professional secrecy. The FMA may refuse the transmission of the requested information,
1. If the disclosure of the information could affect the sovereignty, security or public order 2. If due to same Act and against the same people a process before an Austrian Court is already pending, or 3. If a final judgment of a court in Austria was taken against the persons on the basis of same facts already.
In this case, it has to inform the requesting competent authority and send you most accurate information about the procedure or judgment.
The FMA is in turn entitled to obtain information to carry out its tasks referred to in paragraph 1 the competent authorities of the other Member States. The FMA can inform if not within reasonable period of time will be followed her request for information or that was rejected, the Committee of European securities regulators.
Without prejudice to their obligations in the framework of criminal proceedings, the FMA may use the information received under paragraph 1 only in the performance of their tasks under this federal law, as well as in administrative associated with fulfilling this task and court proceedings. However, the competent authority which has submitted an information, is so must their consent, the FMA use it for other purposes or send the competent authorities of other States, where this according to national regulations, especially according to §§ 1, 6 and 12f DSG 2000 into account.
(3) the FMA is convinced that violations of the Directive 2003/6/EC in the territory of another Member State be or have been made or that financial instruments that are traded on a regulated market in another Member State, are affected by actions, she as specific as possible to inform the competent authority of the other Member State. Should the FMA in turn receive such notice, she has the necessary measures to put this. She has to inform the notifying competent authority of the results, and as far as possible about important interim results. This paragraph shall be without prejudice to the powers of the competent authority from which the information originates. The local authorities in accordance with article 10 of Directive 2003/6/EC shall consult on the proposed follow-up.
(4) the FMA may request the competent authority of another Member State, carry out investigations in the territory. As well, it has to comply with such request from the competent authorities of other Member States. In addition, the FMA the competent authorities of the other Member States, may ask that its own staff is allowed to accompany the personnel of the competent authority of the other Member State in the investigation. As well, it has to comply with such request from the competent authorities of other Member States. The investigations are subject to fully and completely the control of the Member State in whose territory they held. The FMA can refuse to allow, if such investigations might adversely affect the sovereignty, security or public order or if due to same Act and against the same people already proceedings before an Austrian Court is pending or if against those concerned on the basis of same facts already a final judgment to comply with a discovery request in accordance with this paragraph or to accede to a request from the competent authority of another Member State in accordance with this paragraph, your own staff through staff of authority accompany an Austrian Court is issued. In this case, it has to inform the requesting competent authority accordingly and send you most accurate information about the procedure or judgment. Without prejudice to article 226 of the Treaty the FMA, their requesting of introduction is followed by investigation or the licence that its staff may accompany the officials of the competent authority of another Member State, does not within a reasonable period of time or has been rejected can inform the Committee of European securities regulators."
7. in article 64, paragraph 1 is inserted after the word "Securities" the phrase "and of issue programmes, under which bonds will be issued,".
8. in article 66, paragraph 1, the phrase "and issuance programmes" is inserted after the phrase "The conditions for the admission of securities".
9 according to § 66 article 6 the following paragraph 7 is added:
"(7) bonds issued under an emission program admitted to the official market within 12 months of the publication of the prospectus, require no separate admission. The official listing is made, insofar the prerequisites of section 66 paragraph 1 Nos. 2 and 4 to 9 are given and after the applicant submits the terms and conditions of the Exchange operating company. The terms and conditions are to publish pursuant to § 78."
10 paragraph 67 paragraph 1:
"(1) that publicly traded companies can transport objects and issuance programmes, under which bonds will be issued, the semi-official admit to."
11. According to article 68, paragraph 3, the following paragraph 4 is added to:
"(4) bonds issued on behalf of an issuance programme approved for the semi-official 12 months from publication of the prospectus, require no separate admission. The notation in the semi-official takes place, where the requirements of § 68 para 1 Nos. 2 and 4 to 9 are given and after the applicant submits the terms and conditions of the Exchange operating company. The terms and conditions are to publish pursuant to § 78."
12 the heading paragraph before section 69:
"Unregulated third market"
13. in article 69, paragraph 1, the phrase "as well as emission programs, under which bonds will be issued," is inserted after the word "Transport objects".
14. under section 69 ABS. 1 Z 3 is appended following Z 4:
"4. debt securities issued in the framework of an issuance programme approved for the third market, require no separate admission. The quotation in the third market takes place, unless the applicant has submitted the terms and conditions of the Exchange operating company."
15. in article 72, paragraph 1, the phrase "or an issuance programme' is inserted after the word"Security".
16 second sentence is added § 72 para 2 third sentence:
"A request for the total amount must refer authorisation of an issuance programme to the maximum issue size of all potential debt securities provided for in the prospectus. A new application have passed more than 12 months since the publication of the prospectus or the issue of notes exceeds the requested total amount of the program, must be made."
17. in article 75a para 2, the phrase "or for the same emissions program" is inserted after the word "Securities".
18. in article 75a para 5, the phrase "or for an issuance programme' is inserted after the word"Security".
19 paragraph 6 deleted § 82.
20. in section 82, paragraph 7 and 8, the expression "Paragraph 6" with the expression "section 48 d" is replaced.
21 § 91a is eliminated.
22. after section 96a paragraph 2 the following paragraph 3 is added:
"(3) in the case of administrative offences pursuant to §§ 48 and 48c a limitation period of 18 months applies VStG instead of the limitation period pursuant to § 31 para 2 of six months."
23. in paragraph, the number "48a" 101 No. 1 is replaced by the number "48 b".
24. in paragraph 101, no. 2 is the phrase after the number "31" "and section 48a para 1 subpara 1 lit. b"was inserted.
25. after section 101 d, 101e the following paragraph with heading shall be inserted:
"Linguistic equal treatment
section 101e. As far as this federal law are personal names only in the male form, they relate to women and men in the same way. When applied to certain persons the respective gender-specific form be used."
26. pursuant to article 102, paragraph 19, 20 the following paragraph shall beadded:
"(20) § 26 para 1, § 48 para 1 No. 2 and the sections 48a and 48 t, article 64, paragraph 1, article 66, paragraph 1 and 7, article 67, paragraph 1, section 68 (4), the heading before section 69, section 69, paragraph 1, article 72, paragraph 1 and 2, article 75a para 2 and 5, § 82 par. 7 and 8, section 96a para 3, § 101 Z 1 and 2 and section 101e in the version of Federal Law Gazette I no. 127/2004 with 1 January 2005 into force." Section 82 para 6 and § 91a occur upon the expiry of the 31 December 2004 except force."
Amendment of the securities supervision Act
The securities supervision Act, Federal Law Gazette No. 753/1996, as last amended by Federal Law Gazette I no. 70/2004, is amended as follows:
1 § 2 para 1 No. 4 is omitted.
2. paragraph 2 deleted § 2.
3. § 10 para 1 sub-para. 3 to 5 are:
"3. in the way of free to provide services in accordance with articles 9 et seq." BWG domestic credit institutions and investment firms and domestic firms established in Member States, insofar as these companies are Member of a stock exchange within the meaning of the stock exchange, but the transactions were concluded only with regard to those instruments which are admitted to trading on an Austrian Stock Exchange and in Austria, 4. the Austrian National Bank and 5 recognized investment undertakings established in a third country (article 15, paragraph 1 Z 3 BörseG) and companies established in a third country (article 15, paragraph 1 Z 4 Austrian Stock Exchange Act) ", the Member of a stock exchange pursuant to the Exchange Act, as well as stock-exchange listing in the Stock Exchange Act active members are a matchmaking (§ 15 para 5 BörseG), but the only with regard to those instruments which are admitted to trading on an Austrian Stock Exchange and about the transactions have been concluded in Austria."
4. paragraph 10 section 2:
"(2) notifiable instruments are:"
1. securities within the meaning of Directive 93/22/EEC, 2 units in undertakings for collective investment in transferable securities, 3. money market instruments, 4. financial futures (Futures) including equivalent cash-settled instruments, 5 interest rate adjustment agreements (forward rate agreement), 6 interest rate and currency swaps and swaps on shares or equity index (equity-swaps), 7 buy and sell options on all covered by Z 1 to 6 instruments, including equivalent bar-settled instruments; These include in particular currency and interest rate options, 8 all other instruments which are admitted to trading on an Austrian Stock Exchange or to trading on a regulated market within the meaning of article 1 No. 13 of Directive 93/22/EEC in a Member State or for which an application for admission, made to trading on one of the aforementioned markets regardless of whether this business in a regulated market has been completed or settled , if it is the purchase or sale or a Unechtes. Notifiable instruments within the meaning of this provision are also instruments that are not approved 1 Z 13 of Directive 93/22/EEC in a Member State to trade on an Austrian market or on a regulated market within the meaning of article, if its value depends of a stock or an equity-like securities, if this stock or this equity-like securities to trading on an Austrian Exchange either is approved for this share, or this equity-like securities, or an application for admission "was made to trade on an Austrian Stock Exchange, or if its value depends on a derivative on such a share or such share similar value paper."
5. in article 10, paragraph 5, "real estate investment Fund Act"the phrase", staff provision funds pursuant to § 18 of the operating employee pension Act" inserted after the word each.
6. in section 14 Z 2 is the semicolon at the end of a point replaced and § 14 is no. 3. In the last sentence of paragraph 14 the phrase replaced "Apply the prohibitions in accordance with Nos. 2 and 3" by the phrase "The ban according to Z 2 applies".
7. in article 25, paragraph 1 is the comma after the word "Trade" by the word "and" replaced and deleted the phrase "and the third market".
8. in article 27 para. 3 is after the phrase "rules of § 14 No. 2" deleted the phrase "and 3".
9. after section 33 the following article 33a and heading shall be inserted:
"Linguistic equal treatment
§ 33a. As far as this federal law are personal names only in the male form, they relate to women and men in the same way. When applied to certain persons the respective gender-specific form be used."
10. According to § 34 paragraph 14, 15 the following paragraph shall beadded:
"(15) § 10 para 1, 2 and 5, § 14 Z 2, § 25 para 1, § 27 para. 3 and § 33a in the version of Federal Law Gazette I no. 127/2004 with 1 January 2005 into force." Article 2, paragraph 1 Z 3 Z 4, section 2, paragraph 2 and article 14 contact expiry of the 31 December 2004 except force. Section 10 para 2 second sentence as amended by Federal Law Gazette I no. 127/2004 into force on January 1, 2006."