Licence

The prerequisites for operating a Pensionskasse in Austria are set out in the Pensionskassen Act (PKG; Pensionskassengesetz – Federal Law Gazette No. 281/1990 as amended) and in the regulations enacted on the basis of the PKG .

A Pensionskasse must have the legal form of an Aktiengesellschaft (joint stock company) and its head office in Austria. The statutory provisions generally applicable to joint stock companies also apply to Pensionskassen, unless the PKG stipulates otherwise.

Prerequisites

a) Licence

Articles 8 and 9 and Article 20 para. 4 PKG contain the most important provisions for obtaining a licence. Apart from the prerequisite of having a head office in Austria, the licence may only be granted, among other conditions, if:

• neither the articles of association nor the business plan contain provisions that do not guarantee the fulfilment of the Pensionskasse’s obligations;
• the Pensionskasse is intended for a group of at least 1 000 beneficiaries;
• the members of the management board are fit and proper, and at least one member has their place of residence in Austria and a good command of the German language; and
• the share capital is freely disposable.

b) Business plan

The Pensionskasse is required to draw up a business plan, which must include all the details and parameters required for pursuing pension company activities and implement the commitments made in the pension company contract. The business plan as well as any amendment to the business plan require the FMA ’s approval (Article 20 para. 4 PKG ). The Pensionskasse may commence business activities only after the business plan has been approved (Article 8 para. 3 PKG ).

Unlike insurance undertakings, pension institutions are not generally licensed to carry out activities in a host member state. Cross-border activities of institutions for occupational retirement provision in the EEA have been possible since implementation of Directive 2003/41/EC (IORP Directive) into Austrian law. Retirement products are provided by an institution in a host member state on the basis of the licence issued by the competent supervisory authority of the institution’s home country. The Pensionskasse has to notify the authority in its home country of any intended conclusion of a pension company contract, specifying the main features of the pension scheme. The home authority is required to review the information it has received and communicate it to the host authority. After the authority of the institution’s host member state has been notified, the Pensionskasse may start business activities in accordance with the host state’s labour and social law provisions.

Under Article 11f para. 3 no. 1 of the Pensionskassen Act (PKG; Pensionskassengesetz), a Pensionskasse is required to notify the appointment of members of the management board promptly prior to their appointment becoming effective, including all documents that are necessary for checking fitness and propriety.

Fit & Proper Test

Articles 9 and 11f PKG define the personal requirements for members of the management board. These requirements address both their personal propriety as well as their professional fitness.

In terms of professional suitability, the FMA considers it important that every member of the management board of a Pensionskasse has the necessary knowledge about the regulations under supervisory law that apply to the undertaking, in order to be able to assume overall responsibility in the management board.

In order to check adequate theoretical knowledge, generally by way of a follow-up to the notification regarding the appointment of a member of the board of management, an appointment is arranged for a Fit & Proper Test, containing questions about the central provisions contained in the PKG .

In the event that the member of the management board does not pass the Fit & Proper Test, then an extended test is conducted, with a greater number of questions. In the event that this test is also not passed, then the undertaking shall be informed of this by the FMA .

The member of the management board will then be given a third and final opportunity to pass the test. If this last test is not passed either, the FMA will assume that they do not possess the necessary professional suitability and will take the relevant supervisory measures.

Pursuant to Article 11b PKG , institutions for occupational retirement provision whose head offices are situated in another EEA signatory country have to comply with the following Austrian provisions when carrying out cross-border activities in Austria:

1. general legal provisions;
2. relevant labour and social law provisions;
3. information requirements;
4. investment rules.

Details on mandatory provisions in Austria can be found in the following document:

The unrestricted access for British undertakings to the Austrian market by way of the freedom to provide services or the freedom of establishment ended on 31 December 2020.

Regarding the legal basis from 1 January 2021, please consult the EU / UK Trade and Cooperation Agreement (see in particular Articles SERVIN.5.38 to 5.42 as well as Article FINPROV. 11 (2) of the Agreement).

EIOPA  published a Brexit Consumer Guide
Consumer guide: What should you do if you have a life insurance policy or pension from the UK?

Further information can be found on the European Commission Website in the section about Getting ready for the end of the transition period.