Approval procedures

The Banking Act stipulates a total of eight circumstances for which special approval is required. They are specified in Article 21 para. 1 BWG:

• No. 1: any merger or amalgamation of credit institutions or of CRR-credit institutions authorised in a Member State or a third country where at least one of the credit institutions or CRR-credit institutions involved is deemed to be a credit institution pursuant to Article 1 para. 1 BWG;

 

• No. 2: any case in which the limits of 10% (qualifying holding), 20%, 33% and 50% of the voting rights or capital of a credit institution or CRR-credit institution based in a third country are reached, exceeded or not reached;

 

• No. 3: any change in the legal form of a credit institution;

 

• No. 5: the establishment of branches in a third country;

 

• No. 6: for the demerger of credit institutions pursuant to Article 1 of the Joint-Stock Company Demergers Act (SpaltG – Bundesgesetz über die Spaltung von Kapitalgesellschaften) – in German only;

 

• No. 7: any merger or amalgamation of credit institutions with non-banks, except for subsidiary undertakings pursuant to Article 59 para. 3 BWG;

 

• No. 8: any expansion of the purpose of business to include activities related to insurance mediation pursuant to Article 137 of the Commercial Code of 1994 (GewO 1994 – Gewerbeordnung 1994) – in German only;

 

• No. 9. any expansion of the purpose of business by credit institutions authorised in Austria to include the activity of submitting bids as defined in Article 3(5) of Regulation (EC) No 1031/2010 on behalf of clients.

In addition to the special circumstances requiring approval under national law those set out in the Capital Requirements Regulation (Regulation (EU) No 575/2013 (“CRR”) also apply. Additional information is available about selected approvals in the CRR:

• Article 30b BWG in conjunction with Article 7 CRR:
  Derogation to the application of liquidity requirements on an individual basis

 

• Article 30c BWG in conjunction with Article 8 CRR:
  Derogation to the application of liquidity requirements on an individual basis

 

• Article 19 (2) CRR:
  Exclusion of subsidiaries and holding companies from the supervisory scope of consolidation

 

• Articles 77 and 78 CRR:
  Pre-approval of the reduction of own funds instruments

 

• Article 113 (6) CRR:
  Application of a risk weight of 0 % for fully consolidated group entities in Austria

 

• Article 422 (8) CRR and Article 425 (4) CRR:
  Approval procedure for the preferential treatment of credit or liquidity facilities within the LCR

 

• Article 425 (1) last sentence CRR:
  Exemption of inflows from the 75 % cap within the LCR

 

Note about National Discretions in the CRR

For approvals that are granted by the European Central Bank, with regard to national discretions Regulation (EU) 2016/445 on the exercise of options and discretions available in Union law is relevant. This regulation will to a large extent be applied from 01.10.2016 to the supervision of significant credit institutions. As a European regulation it enjoys precedence of application over national law. In the case that such provisions contradict those contained in the CRR Supplementary Regulation (CRR-BV – CRR-Begleitverordnung) issued by the FMA, the provisions contained in Regulation (EU) 2016/445 shall therefore take precedence for significant institutions domiciled in Austria. It specified the exercising of a range of regulatory discretions for significant credit institutions.