Here you can find information about licence applications, appointments of management board members and cross-border activities within the EEA .
The prerequisites for operating a Pensionskasse in Austria are set out in the Pensionskassen Act (PKG; Pensionskassengesetz) 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.
a) Licence: Articles 8, 9 and 20 of the Pensionskassen Act (PKG; Pensionskassengesetz) contain the most important provisions for obtaining a licence. Along with being incorporated in Austria, prerequisite conditions for being granted a licence include that neither the articles of association not the business plan contain provisions, that mean that the fulfilling of the Pensionskasse’s obligations is not guaranteed, that the Pensionskasse is intended for a group of at least 1,000 beneficiaries (entitled and recipients), the members of the management board are fit and proper – at least one of whom must have a mastery of the German language. and the share capital is freely disposable.
b) Business plan: the Pensionskasse is required to draw up a business plan. The business plan must contain all the necessary details and parameters for conducting Pensionkasse business, and must implement the commitments carried out in the Pensionskasse The business plan as well as any amendment to it require approval by the FMA (Article 20 para. 4 PKG ). The Pensionskasse is only allowed to commence business operations once 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.
1. Notification obligations for Pensionskassen
Notifications must be made electronically via the FMA ’s Incoming Platform. Forms have been developed that undertakings are required to fill out. They contain details about the additional documentation that must be submitted (e.g. a curriculum vitae and a criminal record certificate).
An overview of the notification requirements that are relevant in practice can be found below:
Members of the Management Board
The Pensionskasse is required to notify the FMA about the appointment of members of the management board promptly prior to their appointment becoming effective, including all documents that are necessary for checking the appointee’s fitness and propriety. In the event of a reappointment, it may be possible pursuant to Article 11f para. 2 nos. 2 to 5 PKG to dispense with the submission of documentation.
Governance and other Key Functions
Under Article 11f para. 3 PKG the Pensionskasse is required to notify the FMA without delay following appointment about the appointment of key function holders (Article 21 PKG : risk management function, actuarial function (actuary and auditing actuary), internal audit function) or to whom a key function has been outsourced. In the event of a reappointment, it may be possible pursuant to Article 11f para. 2 nos. 2 to 5 PKG to dispense with the submission of documentation.
In the case of multi-employer Pensionskassen, under Article 21d para. 1 PKG , at least one deputy actuary must also be appointed.
2. Review by the FMA
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 they also do not pass this test, they will be assumed not to possess the necessary professional suitability.
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:
- general legal provisions;
- relevant labour and social law provisions;
- information requirements;
- investment rules.
Details on mandatory provisions in Austria can be found in the following document:
Information on mandatory provisions for foreign Pensionskassen in Austria (Format: pdf, Size: 683,9 KB, Language: English)
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.