The Control of Accounting Act recently entered into force. Its purpose is to ensure that financial reporting published by entities whose equity or debt securities are admitted to trading on a regulated market in Austria is compliant with national and international accounting standards. To this end, the act vests the Financial Market Authority with the power to audit such financial information.
In light of its findings during on-site audits of issuers' compliance organisations, the Austrian Financial Market Authority has amended the 2007 Compliance Regulation for Issuers and published a circular providing practical guidelines for issuers on the implementation of efficient compliance organisations.
When insolvency proceedings were opened against A-TEC Industries AG, claims were made for around €300 million of bond debt issued by the company. The insolvency court appointed three trustees to represent the bondholders and their collective interests against the company. This restraint of bondholders' rights caused uproar among the mainly international institutional investor base.
Only a few months after the Supreme Court issued a landmark ruling concerning the invalidity of prevalent and customary clauses included in terms and conditions of Austrian law-governed bond issues regarding consumer bondholders, a new Supreme Court ruling has extended some of the court's legal views to the terms and conditions of profit participation certificates.
Many treasury departments of Austrian companies trade in securities or other financial instruments for their own account to raise income from financial assets. However, in light of a recent landmark ruling of the Austrian Administrative Supreme Court, such conduct is critical and may require companies to obtain a banking licence in Austria.
In a recent landmark ruling the Austrian Supreme Court of Justice held that some prevalent and customary clauses included in terms and conditions of Austrian law-governed bond issues are illicit with regard to consumer bondholders. The decision ended a lawsuit for injunctive relief between the Consumer Protection Association and the issuer of a corporate bond initiated in 2007.
Effective from January 1 2010, the statutory rules on redemption of participation capital have been further revised to reflect changed circumstances in the banking sector - in particular, to ease redemption of participation capital issued under the Austrian financial market stability scheme.
From June 1 2008 significant changes to the Vienna Stock Exchange’s rules must be respected by market participants listed in its premium segment. Changes to the regime were apparently fuelled by recent criticism of the lack of satisfactory investor information regarding certain foreign issuers listed on the prime market.
The Ministry of Finance recently introduced a draft bill on the amendment of certain provisions of the Investment Funds Act. One reason for the amendment is the implementation of EU Directive 2007/16/EC, which provides for certain uniform definitions relating to undertakings for collective investment in transferable securities.
The Stock Exchange Act has recently been amended to extend significantly disclosure obligations for shareholdings in listed companies. The main objective is to capture arrangements, in particular derivatives, which previously escaped major shareholding disclosure rules, even though they could be (and were) used for stake-building purposes in Austrian listed companies.
A recent seminal ruling of the Supreme Court has clarified that banking secrecy rules substantially limit the ability of a credit institution to transfer its loan receivables. These limitations are particularly relevant in relation to securitisation transactions and loan portfolio sales, by which credit institutions may improve their regulatory capital and liquidity structure. Particular care must be taken when structuring such transactions.