(Planned) Amendment of the FMABG allows extension of deadlines

The current COVID-19 crisis continues to have a firm grip on Austrian economic life and often leads to considerable problems of various kinds. The financial sector is also under enormous pressure. On the one hand, enormous efforts are being made to support the financial sector in the best way possible; on the other hand, the strict regulatory framework conditions must continue to be observed, especially during the crisis, with the exception of certain temporary reliefs. This applies, for example, to notification, publication or reporting obligations. In most cases, all these obligations are tied to certain deadlines. However, the current crisis may mean that these deadlines cannot be met, or that dealing with other tasks has priority. An initiative motion (IA 402/A) submitted to the Austrian National Council on 2 April 2020 (“3^rd COVID-19 Act”) provides in its Article 1 for a remedy in this respect.

Pursuant to Article 1(1) of the 3^rd COVID-19 Act, a “paragraph 13” is to be added to Section 22 of the Financial Market Authority Act (“Finanzmarktaufsichtsbehördengesetz” – “FMABG”). This new provision is intended to enable the Financial Market Authority (“FMA”) to extend certain time limits upon application or by ordinance. The following deadlines of laws mentioned in Section 2(1) to (4) FMABG and of ordinances issued on the basis thereof, i.e. laws and ordinances of the banking supervision, insurance supervision, securities supervision, and pension funds supervision are covered:

• notification, reporting, submission and other contribution obligations,
• publications and
• other information obligations.

The possibility of extending a deadline will be possible in two ways. First, a reasoned application can be submitted to FMA. The application must therefore be reasoned; an application without substantiation of the reasons would be inadmissible. This application must be transmitted to FMA by electronic means, provided this is reasonable for the applicant. On the other hand, FMA may extend certain deadlines by ordinance without a reasoned application, if this is expedient in the interest of financial market stability or administrative economy. FMA would have to provide for more detailed provisions in this ordinance regarding the submission of applications.

The same possibility of extending a deadline also exists for deadlines of those EU legislative acts for which FMA is the competent authority pursuant to the laws mentioned in Section 2(1) to (4) FMABG. This again includes deadlines for

• notification, reporting, submission and other contribution obligations,
• publications and
• other information obligations.

However, this possibility is more limited as FMA can only extend these deadlines by ordinance. This ordinance must contain more detailed provisions regarding the submission of applications. Moreover, FMA may again issue such an ordinance only if this is expedient in the interest of financial market stability or administrative economy.

Section 22(13) FMABG shall enter into force on the day following the announcement and shall cease to apply at the end of 31 December 2020. The possibility of extending a deadline should therefore be limited in time.

This newsletter is based on the initiative motion 402/A, received by the Austrian National Council on 2 April 2020. At the time of publication of this newsletter on 3 April 2020, the initiative motion was in parliamentary discussion. The approval of the Austrian Federal Council (meeting on 4 April 2020) is pending. It is expected that the planned amendment of the FMABG will be adopted unchanged.

Please note: This newsletter merely provides general information and does not constitute legal advice of any kind from Binder Grösswang Rechtsanwälte GmbH. The newsletter cannot replace individual legal consultation. Binder Grösswang Rechtsanwälte GmbH assumes no liability whatsoever for the content and correctness of the newsletter.