You can see the rules and regulations in other jurisdictions.
The Single European Passport is available for regulated companies, who under CRD IV, MiFID II, the E-Money Directive, the AIFMD and PSD II have a banking licence, that of a payment services provider according to PSD II, a alternative investment fund manager under the AIFMD, an e-money institute or an investment firm under MiFID II. This means that those companies may provide their services in Austria without first obtaining a licence from the FMA.1
In most cases, fintech companies do not provide regulated services and are not licensed by their home member state. Under the Austrian Trade Code, temporary services may only be provided in Austria without a trade license under the EU freedom of services. A trade license will be required if a service is continuously targeted at the Austrian market or if the service is continuously provided there.1
Generally, no reverse solicitation exemption will be available, with the exception of entities from non-European Economic Area (EEA) Member States who may be able to use the MiFID II exemption. This means that any foreign person wishing to act in Austria must meet all relevant licensing requirements. The FMA takes a much stricter approach than the trade authority when it comes to regulated services, with their regulatory practice focusing on where the offer to enter into a contract is made or accepted. As a rule of thumb, market operators are assumed to be conducting banking activities in Austria if they are offering services to parties based there who can legally commit.1
No matter the method, this approach still applies. For traditional mail, sending and posting a contract offer in Austria is sufficient. For info or services available on the internet, a license may be necessary if clients located in Austria have the skill and legal power to enter into a binding agreement.1
The Austrian Supreme Court has provided further support for this view with a decision relating to loans granted by a Swiss bank across borders. Furthermore, case law referencing an Austrian client's securities portfolio managed outside of Austria (in the US), confirmed that advice on such portfolios must be considered to be provided at the client's location at the time of service, no matter if it is done from overseas via telephone, fax, mail, or email. Additionally, case law ruled that agreeing upon portfolio management services abroad in Austria was enough to make these financial services subject to Austrian licensing requirements.1
In this digital era, companies operating on a global basis must be aware of the strict approach Austria enforces with regards to licensing. The Financial Market Authority (FMA) is known for monitoring any unlicensed companies who might be targeting or providing services to Austrian customers. This includes checking whether apps are available through the Austrian versions of Google Play Store and Apple App Store, as well as seeing if the home page is provided in German or catering specifically towards Austrian customers. To ensure they don't run into issues, it's recommended that unlicensed companies offering licensable services include geo-barriers for their clients based out of Austria on their website.1
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