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 – 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.
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.
Pursuant to Article 11f para. 3 n 1 PKG , Pensionskassen are required to notify the FMA about the appointment of members of the management board promptly prior to the appointment becoming effective including all documents that are necessary for checking fitness and propriety.
The following documents have to be submitted with the notification:
- curriculum vitae;
- copy of residence registration form (only if principal residence is in Austria);
- criminal record certificate (or an equivalent foreign document if principal residence is in a foreign country, issued within the past three months) including the Declaration for members of the board of Pensionskassen;
- fit and proper assessment
Articles 9, 10 and 11 PKG , which have to be enforced by the FMA, lay down the personal requirements to be met by the members of the management board. These requirements cover personal reliability as well as suitability in terms of professional qualifications.
With regard to professional qualification, the FMA considers it essential that every member of a Pensionskasse’s management board is well versed in the supervisory regulations applicable to that company in order for the management board to be able to adequately assume overall responsibility.
To test the theoretical knowledge of these persons, after the FMA has been notified of the appointment of a new member, an appointment is arranged for a “fit and proper” test containing questions on key provisions of the PKG .
If the management board member does not pass the fit and proper test, a more detailed test with a larger number of questions has to be taken. If the board member also fails this test, the company will be notified of the fact by the FMA.
The board member is given a third and final opportunity to do the test. If this last test is not passed either, the FMA will assume that they do not possess the necessary professional qualifications 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:
- 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:
A (temporary) transition period until 31.12.2020 began with the withdrawal of the United Kingdom from the European Union (Brexit). Until the end of this transition period there are no changes for undertakings, investors and customers in the European Union (EU) and the United Kingdom (UK). Since the deadline for extending the transition period expired on 30.6.2020 without an extension being sought, the European Commission published Notices to Stakeholders in the financial sector on 14.7.2020, in which it reminds them in the context of the negotiations between the EU and the UK about the their post-Brexit relationship about preparations for the end of the transition period after the UK’s withdrawal.
The Notices for the Pensionskassen sector contain information for preparations to be taken by institutions for occupational retirement provision (IORPs), employers and beneficiaries.
Further information can be found on the European Commission Website in the section about Getting ready for the end of the transition period.
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?