Written by Franziska Deyerl, Stadler Völkel Rechtsanwälte
On 3 January 2018, a new section of the Financial Market Authority Act (§ 23 FMABG) came into force. This new law provides companies with the opportunity to request binding information from the Austrian Financial Market Authority. Requests may concern legal issues of new business models and related license requirements. Eligible contents of such a request is, for example, national and international rules on accounting, clearing duties of OTC derivatives of central counterparties according to Regulation (EU) No. 648/2012, or the classification of securities according to the Austrian Capital Market Act. Inter alia, FinTech companies working in financial services are now able to inform themselves about license requirements even before their actual establishment.
The introduction of § 23 FMABG provides more transparency and on the obligation to obtain a license before establishing a company. Already before the introduction of the new section, the Austrian Financial Market Authority gave information on such questions. However, contrary to providing sole information, § 23 FMABG introduces a legally binding entitlement for the requestee. This brings legal security for the parties concerned, especially since § 23 FMABG can serve as basis for the ongoing procedure in case of applying for a license. A decision according to § 23 FMABG, however, implies the payment of fees. Sole information, on the contrary, is free of charge. The costs depend on the extent of the request and vary between EUR 1.500 and EUR 10.000.
§ 23 FAMBG is limited concerning the persons authorized to make a request. According to the statute, natural persons, legal entities, associations and any other person who can show an interest in the outcome of the assessment is eligible for submitting a request for a binding legal qualification. The latter concerns mostly cases where a person acts for a legal entity which is not yet established but would be concerned later on by the outcome of the assessment. In practice, this affects primarily not yet established companies subject to a license or any other financial supervisory law.
Content-wise, any legal issue which is subject to the Austrian Financial Market Authority according to § 2 para 1-4 FMABG may be an eligible request. These are especially, as already mentioned, legal issues concerning new business models and related required licenses. The entitlement for information arises only if the requirements according to § 23 para 4 FMABG are fulfilled by the requesting person. The demand shall contain a complete and self-contained description of the (future) subject matter. A demand concerning for example a company to be established should contain an overview over the planned structure and services provided. In both cases, requests on future and existing subject matters, the requesting person shall demonstrate a particular interest in the clarification of the legal issue. The legal issue should be stated precisely and the requesting person must formulate one or several legal questions. The extent of the request is decisive for the extent of the inquiry of the Financial Market Authority. It thus decides only on those questions raised by the requesting person. A particular interest exists, if a subject matter gives rise to penalties in the case of false legal assessments. Besides that, a particular interest may be assumed in the case of questions concerning licenses and other permits and allowances.
§ 23 para. 6 FMABG provides an entitlement with regard to a later assessment according to supervisory law. The first assessment made in accordance with § 23 FMABG is binding for the Financial Market Authority also with regard to a later assessment on the same issue, for example a later assessment on the application for a license. For concerned companies, this leads to more predictability, because they can rely on the decision taken. However, the entitlement sustains only if the subject matter stays the same or differs only slightly from the initial situation. If, for example, a company in establishment changes the business plan, the subject matter is new, so the entitlement expires. Besides that, the entitlement can also expire if the legal situation changes and the assessment of the Financial Market Authority differs from the former legal situation.
https://industriemagazin.at/a/aufsichtsreform-mehr-transparenz-oder-mehr-politik.
