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Administrative decisions in response to a request for information pursuant to Article 23 FMABG from 3 January 2018

Financial Market Authority Act (FMABG; Finanzmarktaufsichtsbehördengesetz) published in Federal Law Gazette I No. 97/2001 in the version amended by Federal Act in Federal Law Gazette I No. 149/2017.

Legally binding administrative decisions against payment in response to requests for information (Auskunftsbescheide), subject to requests being made, were introduced on 3 January 2018, in order to improve transparency and legal clarity.

As was previously the case, the possibility as hitherto permitted in accordance with existing administrative practices, of the right to be provided with information free of charge by the authority is not affected. In the interests of expediency, it is therefore necessary to determine whether a request for information may be conducted informally.

The subject matter of administrative decisions in response to a request for information (Auskunftsbescheide) are legal enquiries about situations in relation to the Federal Acts listed in Article 2 paras. 1 to 4 FMABG, in particular with regard to new kinds of business models and the accompanying licensing requirements that may exist in this context. The requirement exists that either:

1. the subject matter of the enquiry has not yet been realised at the point of time of the submission of the request, or,

2. while the subject matter has already been realised, the request for information however relates to an assessment in relation to a future material amendment of the legal situation, provided that this amendment has already been published at the time the request is made.

It should be noted that such requests may only address subject matters, the legal assessment of which are not conferred upon the European Central Bank (ECB) within its remit to supervise credit institutions within the Single Supervisory Mechanism (SSM) or the Single Resolution Board (SRB). Further details about the delineation of competences within the SSM can be found in the Annex below.

Pursuant to Article 23 para. 1 FMABG, the FMA, upon receipt of a written request for information about the assessment under supervisory law of specific subject matters, shall be required to deliver such a decision, in the case that a particular interest exists with regard to the material effects under supervisory law, and where such an assessment is not conferred to the European Central Bank or the Single Resolution Board.

Pursuant to Article 23 para. 4 FMABG the written request for information must contain the following, in addition to general information about the party making the request:

1. a complete and self-contained description of the subject matter underlying the situation to be assessed;

2. a description about the party making the request for information’s particular interest;

3. a description of the legal issue;

4. the formulation of specific legal enquiries;

5. the submission of a legal interpretation containing a detailed statement of reasons about the formulated legal enquiries.

Accordingly the request for information must contain a detailed description about the subject matter in question, the legal problems with a specific formulation of the legal issues including the submission of an appropriately detailed legal opinion about this matter and about the particular interest for its clarification as well as how the party submitting the request is objectively legally affected.

These requirements state that the party making the application must already in advance have deliberated about the legal provisions and the legal problems relating to the request. These legal requirements are comparable to the formal requirements for the justification of the permissibility of a final right of appeal to the Supreme Administrative Court (VwGH) as set out in Article 133 para. 4 of the Federal Constitutional Act (B-VG; Bundes-Verfassungsgesetz) (in conjunction with Article 28 para. 3 Administrative Court Act (VwGG; Verwaltungsgerichtshofgesetz). The party making the request should exercise the corresponding degree of care when describing the subject matter, since this description forms the basis of the administrative decision in response to a request for information (Auskunftsbescheid), and the binding effect of such an administrative decision in response to a request for information may also only apply to this specific subject matter.

Natural or legal persons or associations of persons (bodies of persons) without their own legal personality and persons who have their own justified interest in the outcome of the assessment in accordance with supervisory law, e.g. when the subject matter underlying the request for information is intended to be performed by a legal person that does not yet exist or by an association of persons (body of persons) without its own separate legal personality.

Pursuant to Article 23 para. 8 FMABG applicants are required pay a contribution towards the administrative costs for the processing of the request for information. In this context, reference is made to the FMA Regulation on Fees (FMA-GebV; FMA-Gebührenverordnung), published in Federal Law Gazette II No. 230/2004, in the version last amended by Regulation in Federal Law Gazette II No. 206/2017.

The individual fee items are primarily based on whether the corresponding official act for the legal issue to be clarified is subject to one or several fee activities in accordance with the FMA Regulation on Fees (TP 1).

In the event that it is not possible to apply any corresponding fee event as an assessment base, then a lump sum amount of € 5,000 is required to be paid (TP 2). Pursuant to Article 23 para. 9 FMABG the a contribution towards the administrative costs is € 500, in the event that the application is rejected pursuant to Article 13 para. 3 AVG, is deemed to have been retracted pursuant to Article 13 para. 4 AVG, or is retracted prior to processing beginning (TP 3).

The following points must in any case be taken into consideration with regard to administrative decisions in response to a request for information regarding the delineation of competences:

  • Credit institutions pursuant to Article 4(1)(1) CRR (“CRR-credit institutions”) as well as bank-based financial conglomerates and (mixed) financial holding companies fall within the competence of the ECB (personal scope of application). National credit institutions that are not CRR credit institutions, payment institutions and (CRR-)investment firms do not fall under the direction supervision of the ECB.
  • The actual scope of application is defined in Article 4 in conjunction with Recital 28 SSM-R and summarised briefly covers prudential banking supervision. Securities-related compliance as well as matters relating to the prevention of money laundering and terrorism financing were not transferred to the direct competence of the ECB.
  • Ongoing Supervision of Significant Credit Institutions: Legal interpretations in relation to the ongoing supervision of significant credit institutions within the actual scope of application of the SSM-R as defined in Article 23 para. 1 FMABG are in any case conferred upon the ECB.
  • Interpretations in relation to the ongoing supervision of less significant credit institutions: Pursuant to Article 6(4) SSM-R the national competent authorities (NCAs) are responsible for performing the duties pursuant to Article 4(1) SSM-R directly towards less significant CRR-credit institutions, meaning that within the supervision of LSIs such administrative decisions in response to a request for information (Auskunftsbescheide) may be issued. The ECB does however possess convergence instruments and powers of instruction towards the national competent authorities, in order to ensure the uniform and effective functioning of the SSM, that are to be taken into account by the FMA.
  • Licencing and qualifying holding procedures fall pursuant to Articles 14 and 15 SSM-R, despite the comprehensive duties of the national authorities to cooperate, under the sole decision-making competence of the ECB. In the event that an entity or a CRR-credit institution submits an application for the issuing of an administrative decision in response to a request for information about a business model, or if an application materially addresses the receiving of deposits or other repayable funds or the granting of credit on one’s own account, then the FMA is not the competent authority in this case.

Activities that require a licence, that are defined in more specialist laws, e.g. the licencing requirements in accordance with the Payment Services Act 2018 (ZaDiG 2018; Zahlungsdienstegesetz 2018), do not fall within the actual scope of application of the SSM-R, with the ECB therefore not having any competence in this instance.