AUSTRIA: Response from Austrian Financial Markets Authority on implementation of the EU Acquisitions Directive

Saturday June 25 2011

The Austrian FMA has responded to a query regarding the implementation of provisions affecting EU acquisitions of qualifying holdings and the method of application for approval of acquisition of a qualifying holding. The Regulator provided the following details:

“The Acquisition Directive 2007/44/EC was implemented in the Austrian Securities Supervision Act (see Art. 11, 11a and 11b), Austrian Banking Act (see for instance Art. 20, 20a and 20b) and Austrian Insurance Supervision Act (see Art. 11 b, c and d). Based on these provisions, the FMA issued the “Owner Control Regulation” (in order to read the regulation, please follow http://www.fma.gv.at/typo3conf/ext/dam_download/secure.php?u=0&file=2577&t=1308835629&hash=9e5352ee287ecf594780a615e10a9229 – please be aware that this English translation of the authentic German text serves merely information purposes. The official wording in German can be found in the Austrian Federal Law Gazette). Please be also aware that there have been some amendments; their (authentic) german versions and the standard forms requested can be downloaded under http://www.fma.gv.at/de/rechtliche-grundlagen/gesetzliche-grundlagen/verordnungen/bankwesengesetz-bwg/eigentuemerkontrollverordnung-ekv.html).

Regarding ownership/control in investment firms (both types of investment firms – those of the “MiFID” type referred to in Dir. 2007/44/EC, as well as those without EEA-passporting possibilities but also subject to the Austrian Securities Supervision Act), credit institutions (licensed under the Banking Act) and insurance companies the applicable provisions have to be complied with. Generally it should be kept in mind, that (for instance) the Austrian Banking Act is applicable to more types of companies than are subject to the Credit Institution Dir. referred to in the Acquisition Dir (and therefore ownership regulations applies to this bigger number of companies as well – your question therefore has to be answered with a “yes”). There are some other provisions, for instance transparency obligations laid down in the Austrian Stock Exchange Act (for ownership/control issues in companies listed at regulated markets). We strongly recommend to seek professional legal advice when arranging or scheduling such transactions.”