Digital markets, funding and payment servicesi Collective investment schemes
Management of a collective investment scheme generally requires a licence in Austria. Several regulatory classifications are possible, depending on the structure of the scheme. A licence determination frequently turns on whether an investment strategy is present and whether the collected funds are directly attributable to operational activity.
Managing an alternative investment fund requires a licence pursuant to the AIFMG unless total assets under management do not exceed certain thresholds, in which case mere registration with the FMA is required. Without a licence, however, an alternative investment fund manager is prohibited from marketing any alternative investment fund to retail investors and engaging in cross-border marketing or management.
Undertakings for collective investment in transferable securities (UCITS) in Austria are governed by the Investment Fund Act 2011 (InvFG 2011), which transposes the UCITS Directive. The InvFG 2011 also regulates special types of alternative investment funds such as pension investment funds.
The management of real estate investment funds is also subject to a licence pursuant to the Real Estate Investment Fund Act. As such funds are a subtype of an alternative investment fund, the provisions of the AIFMG are also applicable.ii Crowdfunding
Crowdfunding projects that publicly offer securities or investments in Austria are subject to the requirement to publish a prospectus pursuant to the KMG. The FMA reviews prospectuses for offerings of securities such as traditional stocks or bonds, while offerings of investments – essentially transferable, securitised rights that are not securities – are reviewed by a non-governmental prospectus auditor of the issuer's choice. Donation and rewards-based crowdfunding are generally not subject to the prospectus requirement. Certain offerings are exempt from the obligation to publish a prospectus.
Small and medium-sized enterprises may take advantage of special crowdfunding rules under the Alternative Financing Act (AltFG), which is enforced by the local administrative authorities rather than the FMA. Generally, under the AltFG, public offerings with a total consideration of up to €250,000 within 12 months have no prospectus or information requirement. Public offerings that lead to a total consideration from more than €250,000 to less than €2 million within 12 months must provide investors with an information sheet set out in the Alternative Financing Information Regulation. Public offerings exceeding €2 million and up to €5 million require a simplified prospectus in accordance with Annex F of the KMG. Retail investors in offerings pursuant to the AltFG generally cannot invest more than €5,000 within a 12-month period.
Crowdfunding platforms should be mindful of potential licence obligations if they engage in certain business activities such as providing brokerage or investment services (WAG), payment services (ZaDiG) or engage in banking transactions such as credit intermediation (BWG). The AltFG contains specific requirements for operators of an internet platform related to the prevention of money laundering and terrorist financing and transparency of information. Platforms therefore often engage licensed partners to provide such regulated services.iii Lending
The conclusion of money-lending agreements and the extension of monetary loans requires a licence pursuant to Article 1(1) No. 3 BWG. No special exemptions exist for peer-to-peer lending.