English »Legal Updates
Specifying third party charges
In a recent case, the Supreme Court for Civil Matters declares a clause of general terms and conditions of a bank as invalid which contained the phrase “Expenses of third-parties shall be passed on.”. The clause in question is non-transparent for the average consumer because it is listed among services of the bank itself such as reminder fees, fees for re-ordering of debit cards etc. This way the consumer gets the impression that charges of third parties have to be paid in any case. It is not clear for the consumer whether the expenses of third-parties are charged for outsourced services of the bank or for third-party services directly. According to the ruling, third-party expenses which are passed on have to be comprehensibly specified (1Ob57/18s).
14. September 2018
Charges allowed for transmission
The Supreme Court for Civil Matters ruled recently, that Banks may charge fees for the transmission of certain information according to the Austrian Payment Services Act 2015, if the customer requests the transmission. These charges concern only the transmission of the cited information within the scope of the framework contract. The transmission frequency shall not exceed once per month. It is also not required to transmit more than what is legally required (9Ob11/18k).
31. August 2018
Fit & Proper … and impartial und independent and collective suitable and available and…
The Austrian Financial Market Authority (FMA) recently released a draft circular on fit & proper rules. As in previous versions of the circular, the new draft is largely based on guidelines by EBA and ESMA. The new edition includes reviews of the terms “propriety” and “independence” and also deals with the appointment of committee members. The circular also implements new rules on the collective suitability of members of a management body. The review process ended on 11.07.2018; it can be expected that the final circular will not differ materially from the draft.
21. August 2018
New technologies require new measures
The risks resulting from the information and communication technology (ICT) require new solutions – also for banks. To this end, based on the relevant EBA-Guidelines, the Austrian Financial Market Authority (FMA) published guidelines for banks. Typical ICT–risks such as loss of or damage to the availability, integrity, access and security of ICT-infrastructure and data are addressed. In addition to the implementation of a strategy, the FMA guidelines recommend many specific measures to manage these risks.
25. June 2018
Recent ruling by an extended panel of judges: “Handing over” by a simple declaration
Austrian law requires a notarial deed or an “actual hand over” for a donation to be legally effective. The Supreme Court in Civil Matters recently ruled by an extended panel of judges: To “actually hand over” a deposit of securities, it is sufficient to grant the donnee a joint but unrestricted power of disposal for the securities account. This can be done by declaring such power vis-à-vis the bank. The power of disposal of the donor doesn’t compromise the effectiveness of an “actualy handing over”. Granting an exclusive power of disposal over the securities account by the donor is not necessary. (2 Ob 122/17f)
18. June 2018