法律研究

Banks must disclose internal commissions

An investment firm violated the Securities Supervision Act when brokering securities to an investor. The investment firm should have disclosed to the investor the receipt of sales-related commission. This disclosure was mandatory due to a conflict of interest between the investor and the service provider which granted the commission. According to a recent decision by the Supreme Court for Civil Matters, this violation of the Securities Supervision Act can also be grounds for damages claims against the investment firm. (4Ob94/17b)

2018年5月17日

FMA has its finger on the pulse

An issuer, that offers securities to the public or applies for the admission of securities to the Vienna Stock Exchange, has to draw up an extensive prospectus. The prospectus has to include substantial information about the issuer and the offered securities. In an approval procedure the prospectus is scrutinised by the FMA regarding its completeness, coherence and comprehensibility. As of the beginning of the year it is possible to initiate the approval procedure online. A one-time registration by the issuer and the submission of the prospectus on the online platform of the FMA are the only requirements. Another improvement for the issuer trough this procedure is the transmission of the approved prospectus to the Oesterreische Kontrollbank (OeKB) by the FMA.

2018年4月13日

An alternative calling for banks: Fortune telling

The Supreme Court for Civil Matters regularly deals with general terms and conditions of banks. A recent decision deals with a consent implying clause in general terms and conditions. Consent implying clauses allow one party to imply consent of the other party to an amendment of a contract – subject to certain requirements stipulated in the Consumer Protection Act and the Payment Services Act. The Supreme Court for Civil Matters derives from the requirement of transparency an obligation to inform the consumer about the reasons of an amendment – at the time of the conclusion of the consent implying clause. This shall minimize the risk of future passivity of the consumer. How the bank is supposed to know the reason for a future contract amendment in advance is a different question. (10Ob60/17x)

2018年3月30日

Consumer Protection Act applies also for Choice of Law Clauses

According to a preliminary ruling of the ECJ The Supreme Court for Civil Matters ruled contrary to its previous point of view: A choice of law clause in the general terms and conditions with consumers is legally void, if the clause doesn’t contain an additional reference to the compulsory protective norms of the state of the habitual residence of the consumer. Since the clause in question didn’t contain such a reference it was non-transparent and therefore abusive. (2 Ob 155/16g)

2018年3月12日

A general prohibition of suspensive effect for appeals against notices of the Financial Supervisory Authority is unconstitutional

A regulation which ruled out suspensive effect of appeals against notices of the financial market supervisory authority was found unconstitutional by the Constitutional Court. A suspensive effect was ruled out even for basic cases, which were not urgent, weren’t in connection with an emergency or didn’t have a connection with European Union law. The concerned party was only granted provisional measures before the federal administrative court in an advanced stage of the proceeding. The Constitutional Court found this to be a violation of the rule of law and the effectiveness of legal protection which is derived from it (VfGH G 257/2017-13).

2018年3月3日