Registration of Virtual Asset Service Providers

The legal obligation to register has existed since 10.01.2020. Only once the registration has become legally valid is the service that has been applied for allowed to be offered and performed.

Offering a service pursuant to Article 2 no. 22 FM-GwG without a registration constitutes an administrative offence and shall be punished by the FMA with a fine of up to EUR 200 000 (Article 34 para. 4 FM-GwG).

The registration application is to be submitted to the FMA electronically (where several files are submitted max. 40 MB/file) to the e-mail address [email protected].

For natural persons as service providers

• Forename and surname, date and place of birth of the service provider including a copy of an official photo identification document;
• Registration numbers from identification registers (e.g. Commercial Register (Firmenbuch) no.); place of incorporation (residence) of the provider as well as an e-mail address and telephone number;
• A current extract of a judicial record (not older than six weeks) of the provider or an equivalent foreign document;
• Description of the business model including the precise details about which services listed in Article 2 no. 22 FM-GwG are being applied for. The respective service applied for must be presented in detail in the form of a workflow procedure containing the information about which companies are involved in the process, what tasks they perform, who is in a contractual relationship with whom, how the transfer between fiat money and virtual currencies is handled as well as which virtual currencies are covered (the type of token including the functional design of the tokens). Furthermore, the following must also be stated.
  • The applicant’s explicit confirmation that no services pursuant to Article 2 no. 22 FM-GwG have been offered or conducted in or from Austria to date.
  • A statement and information about the extent to which an activity that requires a registration or a licence also exists when performing the business model that is being applied for, including a legal justification in this regard.
• In addition to the description about the business model, it must also be stated whether, and when and in which countries a registration or authorisation as a virtual asset service provider has already been applied for, what service is covered by the said application or whether and when such an application for authorisation as a virtual asset service provider is planned. Suitable proof should be provided about any application for authorisations in other countries.
• A description of the internal control system and the planned strategies and procedures in order to meet the requirements set out in the and Regulation (EU) 2015/847 (“Transfer of Funds Regulation”) as well as the requirements in FATF Recommendation 16 (“travel rule”[1]). This description should take the form of an operating procedure or guidelines, and in illustrating the due diligence and reporting obligations under the FM-GwG is required to present all relevant procedures, processes, systems and controls in a detailed manner that is tailored to the business model in question. This also includes submission of an institution-specific risk assessment at both enterprise and customer level as defined in Article 4 FM-GwG or as defined in the FMA Circular on Risk Assessment.
• Details about the person that will take over the role of the Anti-Money-Laundering Officer, consisting of information and proof with regard to the expertise and qualification for performing the position as well as proof of personal reputation (curriculum vitae, references, extract of a judicial record etc.).
• Proof of having successfully passed an internal “Fit & Proper test” (see the FMA Circular on Internal organisation for the prevention of money laundering and terrorist financing).

[1] Para 7b of Interpretive Note [INR] 15.

For legal entities as providers

• Information about the undertaking (especially the company name, registered office, business address, e-mail address and telephone number, Commercial Register number);
• Up-to-date excerpt from the Commercial Register or an equivalent excerpt from a public register/database excerpt (no older than six weeks) for the provider;
• Forename and surname, date and place of birth of the director including a copy of an official photo identification document;
• Forename and surname, date and place of birth of the beneficial owner(s) pursuant to Article 4 (1) point 36 of Regulation (EU) No 575/2013 (CRR) (holder of a qualifying holding) including copies of an official photo identification document of the beneficial owner(s);
• An up-to-date (no older than six weeks) extract of a judicial record of the director(s) as well as the beneficial owner(s) pursuant to Article 4 (1) point 36 of Regulation (EU) No 575/2013 (holder of a qualifying holding);

• A depiction of the ownership and control structure of the service provider by means of an organisation chart that also states the amount of the holding of the beneficial owner(s) as defined in Article 4 (1) point 36 of Regulation (EU) no. 575/2013. Submission of evidential and up-to-date proof about the direct or indirect qualifying holding in the applicant at all levels in the ownership and control structure (e.g. by means of current register excerpts, excerpts from the shareholders register, memoranda of association etc). As well as a confirmation (and proof) of where and what type of control is exercised as defined in the aforementioned Regulation over the management of the applicant.
• Description of the business model including stating precisely which of the services listed in Article 2 no. 22 FM-GwG is being applied for. The respective service that is being applied for must be presented in detail in the form of a process diagram, and containing the information about which undertakings are involved in the process, what duties they assume, who is in a contractual relationship with whom, and how transfers between fiat money and virtual currencies are settled as well as which virtual currencies are covered (the type of token including the token’s functional design). Furthermore, the following must also be stated:
  • confirmation that no services pursuant to Article 2 no. 22 FM-GwG have been offered or conducted in or from Austria to date,
  • information about the extent to which the business model being applied for constitutes an activity that requires a registration or a licence, including a legal appraisal in this regard.
• In addition to the description about the business model, it must also be stated whether, and when and in which countries a registration or authorisation as a virtual asset service provider has already been applied for, what service is covered by the said application or whether and when such an application for authorisation as a virtual asset service provider is planned. Suitable proof should be provided about any application for authorisations in other countries.
• A description of the internal control system and the planned strategies and procedures in order to meet the requirements set out in the and Regulation (EU) 2015/847 (“Transfer of Funds Regulation”) as well as the requirements in FATF Recommendation 16 (“travel rule”[1]). This description should take the form of an operating procedure or guidelines, and in illustrating the due diligence and reporting obligations under the FM-GwG is required to describe all relevant procedures, processes, systems and controls in a detailed manner that is tailored to the business model in question. This also includes submission of an institution-specific risk assessment at both enterprise and customer level as defined in Article 4 FM-GwG or as defined in the FMA Circular on Risk Assessment.
• Details about the person that will take over the role of the Anti-Money-Laundering Officer, consisting of information and proof with regard to the expertise and qualification for performing the position as well as proof of personal reputation (curriculum vitae, references, extract of a judicial record etc.).
• Proof of having successfully passed an internal “Fit & Proper test” (see the FMA Circular on Internal organisation for the prevention of money laundering and terrorist financing).

[2] Para 7b of Interpretive Note [INR] 15

Foreign documents (e.g. excerpts from registers, memoranda of association etc.) must be submitted as certified translations (in German or English).

We refer to the FMA Circulars regarding the Prevention of Money Laundering and Terrorist Financing for drawing up the description of the internal control system (FMA Circulars).

The FMA reserves the right to obtain additional information and documentation during the registration procedure in relation to the description of the business model as well as the description of the internal control system for the prevention of money laundering and terrorist financing.

The FMA reserves the right, during the registration procedure, to invite the person named as the anti-money-laundering officer to undergo a Fit & Proper test at the FMA, as well as to conduct a management meeting with the applicant’s managers.

Where the FMA has grounds to believe based on the details submitted during the registration procedure or based on observations under supervisory law that the requirements set out in the FM-GwG, the Transfer of Funds Regulation and FATF Recommendation 16 may not be fulfilled or where it has doubts about the personal reputation of the director(s), the natural person that holds a qualifying holding or the natural persion pursuant to Article 2 no. 22 FM-GwG, then the FMA shall not perform the registration and shall reject it by means of an administrative decision for which there will be a charge.

If, during the registration procedure, it is not possible for the FMA to check the application due to deficient or incomplete information and documents, that the application for registration is to be rejected by means of an administrative decision, for which a fee will be charged.

A fee is charged for processing the registration of virtual asset service providers pursuant to Article 32a FM-GwG. The fee is Euro 3,000 (See the FMA Regulation on Fees (FMA-GVO; FMA-Gebührungverordnung) available in German only). The notification about the registration having been performed is in the form of an administrative decision.

In registering the virtual assets service provider there is no approval of the processes, procedures and systems for the prevention of money laundering and terrorist financing submitted as part of the registration procedure.

Registrations are published on the FMA website. When the provider is registered, an entry is made in the FMA Company Database.

As a result of the registration providers in relation to virtual currencies become obliged entities under the FM-GwG and are subject to ongoing supervision by the FMA exclusively in the field of prevention of money laundering and terrorist financing. The FMA will check compliance with the provisions in the FM-GwG as well as Regulation (EU) 2015/847 on information accompanying transfers of funds as part of its ongoing supervisory activities. Ongoing supervision by the FMA is subject to charges. The ongoing supervision fees pursuant to Article 21a para. 3 of the FMA Cost Regulation (FMA-Kostenverordnung) (available in German only) are 1% of the gross fees from services in relation to virtual currencies to be reported annually to the FMA received annually by the supervised institution or at least EUR 500 as a lump sum each year.

Virtual asset service providers that are established in a foreign country and which offer and perform their registered service pursuant to Article 2 no. 22 FM-GwG in Austria are also required to observe the respective national provisions on the prevention of money laundering and terrorist financing.

In observing the obligation to submit suspicious activity reports pursuant to Article 16 FM-GwG by virtual asset service providers domiciled abroad and which offer and perform their registered service in Austria pursuant to Article 2 no. 22 FM-GwG, then as obliged entity under the FM-GwG they are required to make suspicious activity reports to the Austrian Financial Intelligence Unit (Geldwäschemeldestelle) (A-FIU) where a link to Austria (e.g. domicile, transactions) can be deduced from the circumstances that are required to be reported.

Virtual asset service providers domiciled in a foreign country that hold a registration from the FMA pursuant to Article 32a FM-GwG in any case require an ERsB number in order to access the Beneficial Owners Register (WiEReG). The ERsB number must be applied for by being entered into the Supplementary Register for Others (ERsB; Ergänzungsregister für sonstige Betroffene) and then submitted to the FMA without delay via the e-mail address [email protected].