Austrian licensing requirements are triggered if a regulated service is rendered in or cross-border into Austria. The (financial) service provider will therefore need to consider whether it needs to comply with local Austrian licensing obligations (and/or local marketing rules, as applicable) prior to rendering and/or offering its services to Austrian-domiciled customers.

Austrian law itself does not specify which criteria have to be fulfilled for services to qualify as services rendered in or cross-border into Austria, and no official FMA guidance has been published in this regard. The Austrian Supreme Court has found that the assessment of whether banking or other financial services are being rendered in or cross-border into Austria always has to take place on a case-by-case basis, considering, among other things, pre-contractual circumstances (such as the place where negotiations took place) and the contents of the contractual relationship.

Austrian laws and regulations can be applicable whenever a financial service provider domiciled outside of Austria actively solicits and/or provides services to customers located in Austria. Consequently, no Austrian licensing requirements apply under the following circumstances:

• The services themselves are not carried out in Austria (e.g., the respective accounts/deposits are maintained outside of Austria).
• The foreign entity does not carry out any active solicitation in Austria, and the business relationship was thus established outside of Austria or solely upon the customer’s unsolicited request (reverse solicitation).

In this respect, reverse solicitation is always subject to the precondition that the request by the customer has not been solicited in any manner by prior marketing activities of the offeror targeting the Austrian market.

To avoid qualification as services rendered in or into Austria, it is further recommended that the relevant agreement with the customer be signed by both parties outside of Austria and that specific legal advice be sought before "tapping" into the Austrian market.

Marketing and communication activities are crucial for determining whether financial services are rendered in or into Austria. If an entity's marketing activities specifically target customers domiciled in Austria, such activities may trigger Austrian licensing requirements.