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Whistleblower-System

Rules of Conduct & Compliance

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Within the scope of the supervision of compliance, the Financial Market Authority (FMA) monitors compliance with the compliance provisions in the following laws or EU Regulations and national Regulations:

  • Regulation (EU) No 596/2014 (MAR) and the EU Regulations based upon it
  • the Stock Exchange Act 2018 (BörseG 2018; Börsegesetz 2018),
  • Compliance provisions and conduct rules
    • in the Securities Supervision Act 2018 (WAG 2018; Wertpapieraufsichtsgesetz 2018) and the relevant EU Regulations (in particular Delegated Regulation (EU) 565/2017) as well as FMA Regulations,
    • in the Investment Funds Act 2011 (InvFG 2011; Investmentfondsgesetz 2011) as well as
    • in the Alternative Investment Fund Managers Act (AIFMG; Alternative Investmentfonds Manager-Gesetz) and the AIFM Regulation.

The following information can be found below:

  • The FMA’s supervisory tools
  • Entities that are subject to compliance supervision
  • Sources of information and important links

The Financial Market Authority’s Supervisory Tools

The FMA checks compliance with the legal provisions using various supervisory tools. The checking process consists on the one hand of on-site inspections pursuant to Article 90 para. 3 no. 3 WAG 2018, pursuant to Article 140 para. 1 no. 8 BörseG 2018 and Article 153 para. 1 no. 4 BörseG 2018, pursuant to Article 147 para. 1 and para. 2 no. 4 InvFG 2011 as well as pursuant to Article 56 para. 1 in conjunction with para. 2 no. 3 AIFMG. Furthermore, spot checks and management meetings are also conducted. Such supervisory tools are used in the case of the ad hoc identification of specific circumstances, for routine checking processes as well as to increase market standards as well as in particular to ensure that ongoing supervisory contact is maintained.

Management meetings and spot checks are furthermore in particular used as a follow-up measure following an on-site inspection.

Entities that are subject to compliance supervision

The following types of entities are subject to compliance supervision by the FMA:

  • Credit institutions
  • Investment fund management companies
  • Issuers
  • Insurance undertakings and pension funds (Pensionskassen)
  • Investment firms and investment services providers
  • Alternative Investment Fund Managers (AIFMs)

All credit institutions as per the definition of the Banking Act (BWG; Bankwesengesetz), (as well as members of a securities exchange) are required to take the compliance measures listed in Article 119 para. 4 nos. 1 to 3 BörseG 2018 to prevent insider trading (Article 33 no. 5 BörseG 2018 in conjunction with Article 119 para. 4 BörseG 2018). Furthermore, in particular credit institutions that provide also investment services on the basis of their legal licence pursuant to Article 1 para. 3 BWG such as investment advice, portfolio management on an individual basis and/or the receiving and transmission of orders (Article 3 para. 2 nos. 1 to 3 WAG 2018), are required to comply with Chapter 2 – Organisational Requirements of the Securities Supervision Act 2018 (WAG 2018; Wertpapieraufsichtsgesetz 2018), the regulations based upon it, as well as the directly applicable EU Regulations, in particular Delegated Regulation (EU) 565/2017.

For investment fund management companies, the Investment Funds Act 2011 (InvFG 2011; Investmentfondsgesetz 2011) contains extensive rules in the areas of rules of conduct and compliance that replicate the provisions of the Securities Supervision Act 2018 (WAG 2018; Wertpapieraufsichtsgesetz 2018). Furthermore investment fund management companies as credit institutions pursuant to the Banking Act (BWG) are also subject to the compliance provisions stipulated in the Stock Exchange Act (Article 119 para. 4 BörseG 2018).

In the event that investment fund management companies also provide the investment services of investment advice and portfolio management on an individual basis on the basis on an extended licence (Article 5 para. 2 nos. 3 and 4 InvFG 2011, or Article 4 para. 4 no. 1 or no. 2 lits. a and c AIFMG), then with regard to such activities certain regulations in the Securities Supervision Act 2018 (WAG 2018; Wertpapieraufsichtsgesetz 2018), Regulations based on it, as well as directly applicable EU Regulations, in particular Delegated Regulation (EU) 565/2017 apply (Article 2 para. 3 WAG 2018).

Furthermore, investment fund management companies that hold a licence under the Alternative Investment Fund Managers Act (AIFMG; Alternative Investmentfonds-Manager-Gesetz) are also required to comply with the compliance provisions replicated from the WAG 2018 (AIFMG, AIFM Regulation).

In the case of issuers, the FMA monitors within the scope of compliance supervision whether they comply with the regulations regarding the insider list pursuant to Article 18 of Regulation (EU) 596/2014 (MAR) in conjunction with Implementing Regulation (EU) 2016/347 as well as the compliance provisions pursuant to Article 119 para. 4 BörseG 2018.

Insurance undertakings and pension funds (Pensionskassen) are also required to meet the compliance measures stipulated in the Stock Exchange Act 2018 (Article 119 para. 4 nos. 1 to 3 BörseG 2018). Where insurance undertakings mediate units in investment funds pursuant to Article 6 para. 3 of the Insurance Supervision Act 2016 (VAG 2016; Versicherungsaufsichtsgesetz 2016), then with regard to such activities they are also subject to certain regulations of the Securities Supervision Act 2018 (Article 2 para. 2 WAG 2018), Regulations issued in relation to it, as well as the directly applicable EU Regulations, in particular Delegated Regulation (EU) 565/2017.

Investment firms and investment services providers are obliged in accordance with the regulations of the Securities Supervision Act 2018 (WAG 2018; Wertpapieraufsichtsgesetz 2018) to act in the best interest of the client. This is above all ensured by compliance with the organisational requirements and conduct rules set out in Chapter 2 WAG 2018 and Regulations issued on the basis of the WAG 2018, as well as the directly applicable EU Regulations, in particular Delegated Regulation (EU) 565/2017.

The Alternative Investment Fund Managers Act (AIFMG) as well as the AIFM Regulation contain rules for Alternative Investment Fund Managers (AIFMs) in relation to conduct rules and compliance that replicate the provisions of the Securities Supervision Act 2018 (WAG 2018; Wertpapieraufsichtsgesetz 2018).

Sources of information and important links

As a contribution to ensuring legal clarity and for the further development of the law, as part of its supervisory development, the FMA issues a number of Circulars. In addition, self-regulatory works are drawn up in cooperation with market participants, that constitute minimum standards to adhere to, although all market participants are also free to adopt stricter rules. In consultation with the FMA, the Austrian Economic Chamber (WKO; Wirtschaftskammer Österreich) developed the Standard Compliance Code for the Austrian banking industry, the Austrian Insurance Association (VVO; Verband der Versicherungsunternehmen Österreich) drew up the Standard Compliance Code of the Austrian insurance industry, and the Trade Association of Pension Funds (Fachverband der Pensionskassen) developed the Standard Compliance Code of the Austrian Pensionskassen.