Reports to the FMA
This page contains an overview of the reports that are to be submitted by companies to the Financial Market Authority.
Reports pursuant to the Stock Exchange Act (BörseG; Börsegesetz)
Operators of trading venues are obliged to establish and maintain effective rules, systems and procedures for the prevention and exposing of insider dealing, market abuse, attempted insider dealing and attempted market abuse. Where there is a reasonable suspicion of market abuse or attempted market abuse they are expected to report peculiar orders and activities.
The aforementioned obligations (the establishing of rules, systems and procedures as well as reports to the competent authority) also apply to persons who execute transactions involving financial instruments on a professional basis. They are required to submit a report to the Financial Market Authority without delay, if, on the basis of facts and information that they receive, they have a well-founded suspicion that a transaction could either be an inside deal or constitute market manipulation or an attempt to do so. (Article 16 of the Market Abuse Regulation (MAR)).
In such instances all information that is relevant in this matter must be submitted to the Financial Market Authority, including a description of the transactions that give rise to the suspicion of market abuse as well as the details of the person obliged to make the report.
The fully filled out form for “Reporting of Suspicious Transactions and Orders” is to be sent by e-mail to the Financial Market Authority at firstname.lastname@example.org.
Reports pursuant to EMIR
Notification pursuant to Article 4 (2) EMIR
The conditions for an exemption are to be clarified with detailed information. To ensure a consistent procedure, the following template must be used for this purpose: Risk Management Template A sample template can be found at the link below: Risk Management Template SAMPLE Group members must be manually entered in the IGT tool or uploaded via the .csv file. In case of submission via upload, the following .csv file must be used: (.csv file)) In the User Manual (IGT Manual Version 1.0) – available in German only – there is a description of the registration process as well as instructions for the submission of reports to the Financial Market Authority. A declaration must first be submitted (Declaration) to the FMA. The declaration in the annex must be submitted by the counterparty seeking an exemption from clearing obligations for intra-group transactions pursuant to Article 4 (2) EMIR from the Financial Market Authority using the EMIR-IGT Tool. The declaration must be sent to the following e-mail address: IGT@fma.gv.at
- The declaration must be signed by a person holding the necessary authorisation to do so, who is employed in either the counterparty making the application or the one making the notification. This person must confirm that all details and information, which are being submitted to the Financial Market Authority via the EMIR-IGT Tool, are correct.
- It is particularly important that all details and information that are submitted to the Financial Market Authority in the declaration as well as via the EMIR-IGT Tool are both correct and complete. In the event that incorrect or misleading details are submitted, the person signing the declaration may breach legal regulations and legal action may result against that person.
- In accordance with the respective relevant data protection provisions, the Financial Market Authority uses all information that is submitted to the FMA via the EMIR-IGT Tool in the performance of its legally prescribed tasks pursuant to EMIT and other relevant legal regulations. Personal information may therefore also be submitted to other national supervisory authorities within the EEA for such purposes.
- The member of the group making the application or the notification with regard to exemption from clearing obligations pursuant to Article 4 (2) EMIR in the name of other legal entities belonging to the group, is required to have received approval to do so by all legal entities in the group.
Reports pursuant to the Regulation on Short Selling
Pursuant to Articles 5 to 10 of Regulation (EU) No 236/2012 of the European Parliament and the Council of 14 March 2012 on short selling and certain aspects of credit default swaps (hereinafter referred to as the “SSR”) reports are to be made to the competent authority about significant net short selling positions in shares, public debt instruments and where applicable uncovered positions in Credit Default Swaps (CDS) on public debt instruments.
Exemptions exist in Article 17 SSR for activities conducted by market markets and primary market traders, both with regard to transparency and to exclusion. The intention to make use of this exemption, shall be communicated to the competent authority in writing at latest 30 calendar days in advance. The relevant forms can be found through the link below.
Reports pursuant to MiFID II/WAG 2018
Pursuant to Article 17 (2) of Directive 2014/65/EU of the European Parliament and of the Council of 15 May 2014 on markets in financial instruments and amending Directive 2002/92/EC and Directive 2011/61/EU (MiFID II) an investment firm that engages in algorithmic trading in a Member State shall notify this to the competent authorities of its home Member State and of the trading venue at which the investment firm engages in algorithmic trading as a member or participant of the trading venue.
The aforementioned provision was transposed into Austrian law in Article 27 para. 2 in conjunction with Article 26 of the Securities Supervision Act 2018 (WAG 2018; Wertpapieraufsichtsgesetz 2018), which entered into force on 3 January 2018.
Legal entities that are subject to reporting obligations to the FMA pursuant to the aforementioned provisions, may submit this report to the FMA, if they have access to the FMA’s Incoming Platform, via the Incoming Platform, or alternatively by e-mail to email@example.com.
Reports pursuant to MiFIR
Pursuant to Article 26 MiFIR institutions that are subject to reporting obligations, which execute transactions in financial instruments are required to report complete and accurate details of such transactions to the competent authority as quickly as possible, and no later than the close of the following working day.
The following conditions are necessary for the report pursuant to Article 26 MiFIR. A description of the necessary changes or general requirements for the submission of the report can be found in the document below.
Pursuant to Article 26(7) MiFIR the report to be made to the competent authority shall be made “either by the investment firm itself, an ARM acting on its behalf or by the trading venue through whose system the transaction was completed, in accordance with paragraphs 1, 3 and 9.”
Based on the European legislator’s formulation, the FMA deduces that in the absence of a harmonised interpretation by the European Commission or ESMA, that the legislator does not imply the necessity of a continuous outsourcing chain, under which all institutions shall be required to be authorised as ARMs. We therefore view it to be legally compliant if the ultimate submission to the national supervisory authority is performed by an ARM. A direct report by the investment firm its behalf or by an operator of trading venue, through whose system the transaction was completed, of course remains unaffected by this.
Credit institutions as authorised ex lege pursuant to Article 1 para. 3 BWG to provide data reporting services pursuant to Article 1 no. 63 WAG 2018.
In this context it is necessary to state that the FMA does not consider the mere software development of programs for creating securities transactions reports in accordance with Article 26 MiFIR to be an activity that requires authorisation as an ARM.
This interpretation by the FMA shall apply subject to there being no disclosure by ESMA to the contrary.
All institutions in Austria that are required to make reports pursuant to Article 26 MiFIR, including operators of trading venues pursuant to Article 26(5) MiFIR, but not however approved reporting mechanisms (ARMs) are required to register using the FMA’s Transaction Reporting Online Registration Tool. The registration process can be conducted using the following link:
The following document contains a sample form (in German only) that can be used for proving that a power of attorney has been granted:
The Manual for the Online Registration can be found below:
Securities transactions reports in accordance with Article 26 MiFIR
For transactions subject to reporting obligations, entities that are subject to reporting obligations in accordance with Article 26 MiFIR shall be required to clearly identify natural and legal persons in the reports made to the supervisory authority.
The entities subject to reporting obligations are therefore obliged to identify natural persons by means of their national identification numbers in accordance with Annex II of Commission Delegated Regulation (EU) 2017/590 and legal persons (pursuant to the understanding under Union law) by means of an LEI (Legal Entity Identifier in accordance with ISO 17442). Pursuant to Article 13 (2) of the Commission Delegated Regulation, entities that are subject to reporting obligations shall ensure that their clients that are suited to having a LEI, hold an LEI prior to triggering a transaction that is subject to reporting obligations.
For such purposes the FMA considers all entities that have either full or partial legal capacity, in whose name a securities portfolio may be opened, to be legal persons. They are therefore obliged to have a Legal Entity Identifier (LEI) for identification purposes in reporting a transaction in accordance with Article 26 MiFIR. The definition of a legal person is extended in Article 1 no. 68 WAG 2018 to also include partnerships with full legal capacity (in the legal forms of ordinary and limited partnerships (Offene Gesellschaften and Kommanditgesellschaften)).
In accordance with Chapter 5.5. of ESMA Guidelines 2016/1452 individuals acting in a business capacity and who are entered in a register must also identify themselves using an LEI. See also the relevant Statement of the Legal Entity Identifier Regulatory Oversight Committee (ROC).
This however only applies for those transactions that they conduct in their capacity as a commercial trader, and not to those transactions that they conduct as a private person (via their own private securities account).
From the guidelines listed above, the obligation to use an LEI exists for the following entities among others:
- stock companies (Aktiengesellschaften)
- limited liability companies (Gesellschaften mit beschränkter Haftung)
- associations (Vereine)
- ordinary partnerships (offene Gesellschaften)
- limited partnerships (Kommanditgesellschaften)
- property owners’ associations (Wohnungseigentümergemeinschaften)
- foundations (Stiftungen)
- public sector authorities (Öffentliche Gebietskörperschaften)
For further information about LEIs please also consult the ESMA Briefing Note of 09.10.2017.
ESMA Statement to support the smooth introduction of the LEI requirements
On 20.12.2017 ESMA published the following statement regarding LEI implementation under MiFID II: https://www.esma.europa.eu/press-news/esma-news/esma-issues-statement-lei-implementation-under-mifid-ii
A German translation of this statement can be found below:
Supplying of reference data for securities in accordance with Article 27 MiFIR
Pursuant to Article 27 MiFIR, operators of trading venues and systematic internalisers are required to supply national supervisory authorities with reference data about transferable securities. A Legal Entity Identifier (LEI) in accordance with ISO 17442 is required for the identification of the issuer of a transferable security in accordance with Table 3 of the Annex to Commission Delegated Regulation (EU) 2017/585.
Pursuant to Article 7 para. 3 BörseG 2018 and Article 80 para. 3 BörseG, an exchange operating company or the operator of an MTF or OTF may demand issuers to submit all legally prescribed master data in relation to their financial instruments. For further information about LEIs please also consult the ESMA Briefing Note of 09.10.2017.