Registered virtual asset service providers are required to notify the FMA about changes in the details listed in Article 32a para. 1 of the Financial Markets Anti-Money Laundering Act (FM-GwG) without delay. The notification should be stated precisely as such in the subject line of the mail and sent to the e-mail address [email protected]. The relevant changes are to be described precisely and clearly marked in documents.
A notification shall be assumed as having occurred without delay where the notification is made without unnecessary delay or without “culpable delay”. The notification about such amendments must be made without delay from the point in time where knowledge is obtained about the amendments, or at latest where the amendments become legally valid (e.g. when they are entered into registers and directories e.g. the Commercial Register (Firmenbuch) etc.) or have been passed by resolution or approved (e.g. in the case of changes to the business model or the strategies and procedures about the prevention of money laundering and terrorist financing by means of a resolution by the partners etc.). The point in time from when a notification about an amendment is required to be made without delay depends on the type of amendment or the details affected by it on a case-by-case basis.
The notification about the amendment must contain the exact details about which specific changes are being made to the details listed in Article 32a para. 1 FM-GwG and when the amendments have been approved, implemented or have become legally valid.
In any case, the following amendments must be brought to the FMA ’s attention by means of a notification of amendment:
- Changes relating to natural or legal persons (e.g. company name, legal form of the company, company address etc.);
- Changes within the management or in the identity of the Chief Executive Officer;
- Changes in the ownership and control structure regarding the type and extent of the qualifying holding pursuant to Article 4 (1) (36) of Regulation (EU) No 575/2013 including the persons holding a qualifying holding in the virtual asset service provider;
- Changes to the business model (for example a change in the services pursuant to Article 2 no. 22 lits. a to e FM-GwG, changes to the services offered or products that may change the risk for money laundering and terrorist financing or which might require a new check to be performed about about whether an activity requiring a licence exists, etc).
In the case of the aforementioned changes another review and registration requirement may arise. In such cases, the notification must be made prior to such changes being implemented, and implementation should only take place following the response by the authority.