Legal Updates

Fairness is in the eye of the beholder

As prescribed by MiFID, under Austrian law all information by investment firms to clients must be fair, clear and not misleading. But what’s fair? The Supreme Administrative Court (VwGH) recently found that the use of technical terms of the capital market may be not fair; the addressees of a certain offer by a bank had included retail clients and the offer had used the term “Qualified Investor”. If the technical term is relevant for the understanding of the information, it must be explained, ruled the court. (2014/02/0089)

23. April 2016

Never too big to monitor

Marketing funds in Austria requires certain documents to be filed with the Financial Market Supervisory Authority (FMA) within certain periods; and there are few excuses for missing deadlines. The managing director of a fund management company was fined for having missed a filing deadline by ten days. He argued that it was disproportionate to monitor the mailing of the 18,000 documents of the fund management company; especially because this is generally a relatively fail-safe activity. The Federal Administrative Court (Bundesverwaltungsgericht) rejected this argument. It pointed out that everything that’s technically feasible must be undertaken. (W148 2000397-1)

4. April 2016

Do! Don’t just say you do.

The Austrian conflict of interest rules for investment fund managers are among those rules which must be observed also by foreign investment fund managers who market their funds in Austria. As such it is advisable to monitor Austrian case law on these rules. In a recent decision, the Supreme Administrative Court (VwGH) made a clear distinction between having a conflict of interest policy and monitoring its observance. Both, lacking such a policy and not monitoring its observance, are subject to an administrative penalty. (2015/02/0025)

18. March 2016

Keep your data wisely

Marketing funds in Austria requires the sharing of data with different actors: A custodian bank, tax representative, perhaps a paying office. A recent decision of the Supreme Administrative Court (VwGH) dealt with certain data integrity and privacy issues in the course of such sharing: The primary investment fund rules which regulate these topics (sec 12 para 2 Investment Fund Act) are only applicable for those data which the investment fund manager himself aggregated; however the conflict of interest rules (sec 22 et seq Investment Fund Act) may be applicable also for data other than those which the investment fund manager gathered. (2015/02/003)

13. March 2016

Not too close, please

Austrian law foresees a no-fault liability for certain agents. Financial institutions have previously been held liable for acts and omissions of “their” investment service providers, e.g. where they knew of a malpractice of the investment service provider. More recent case-law goes one step further: It is now established case-law that financial institutions are subject to a no-fault liability for those investment service providers with whom they have a close economic relationship. (6Ob84/15v)

29. February 2016