The provision of financial services on a commercial scale in Austria generally constitutes a regulated business activity and is subject to Austrian licensing requirements. The following list includes examples of regulated financial services:

• Banking services that are subject to licensing requirements under the BWG, including the following:
  • The acceptance of funds for the purpose of administration or as deposits (deposit business)
  • The provision of non-cash payment services, clearing services and current-account services (current account business)
  • Lending (irrespective of whether loans are provided to consumers or businesses)
  • The safeguarding and administration of securities (custody business)
  • The issuance and administration of payment instruments
  • The trading in securities or other investments on one’s own account or on behalf of others
  • The issuance of guarantees or the assumption of other forms of liability for third parties (guarantee business)
  • Factoring
  • The brokerage of certain banking services, including the deposit and the lending business, whereas for the brokerage of loans, a trade license as commercial asset advisor under the Austrian Trade Code (Gewerbeordnung) may also suffice
• Investment services that are subject to licensing requirements under the WAG 2018, including the following:
  • The provision of investment advice in relation to financial instruments
  • Individual portfolio management
  • The receipt and transmission of orders relating to financial instruments
• Insurance services that are subject to licensing requirements under the VAG and insurance distribution activities that are subject to licensing requirements under the Austrian Trade Code (Licensing requirements set out in the EU Insurance Distribution Directive have, to date, not been transposed into the Austrian Trade Code.)
• E-money services that are subject to licensing requirements under the E-GeldG, including the issuance of electronic money by means of a prepaid electronic payment product based on either a card or an account
• Payment services that are subject to licensing requirements under the ZaDiG, including, inter alia, the operation of payment accounts and the execution of payment transactions, money remittance, payment card issuance, and acquiring card transactions
• Collective portfolio/UCITS management activities that are subject to licensing requirements under the InvFG, and the management of AIF subject to licensing requirements under the AIFMG
• The provision of investment services subject to licensing requirements either under the WAG 2018 (if in relation to financial instruments) (see item (b) above) or under the Austrian Trade Code (requiring a trade license as commercial asset advisor) 

A particular license may also include the authorization to pursue activities regulated by other supervisory laws (e.g., an Austrian bank does not require a separate license under the WAG 2018 to provide investment services, but it is required to observe the respective provisions of the WAG 2018 when rendering investment services).

Crypto-assets

A general definition of "crypto-assets" does not exist in Austria. However, with the implementation of the AMLD5, the definition of "virtual currency" as "a digital representation of value that is not issued or guaranteed by a central bank or a public authority" (e.g., Bitcoin, Ether), has been introduced to the FM-GwG, which requires "providers in relation to virtual currencies" (i.e., a crypto exchange) to register with the FMA for AML purposes, if one of the following services is offered (exhaustive list):

• Services to safeguard private cryptographic keys, to hold, store and transfer virtual currencies on behalf of a customer (custodian wallet providers)
• Exchange of virtual currencies into fiat money and vice versa
• Exchange of one or more virtual currencies among each other
• Transfer of virtual currencies
• Provision of financial services for issuing and selling virtual currencies

Currently, the treatment of crypto assets other than virtual currencies (i.e., security tokens, e-money tokens) is not explicitly regulated under Austrian law. The FMA has published a brief guidance in this regard, stating that crypto-related payment services, banking activities, e-money activities, investment services, insurance activities or exchange services might be subject to additional authorization requirements under the abovementioned Austrian supervision regime. Additionally, obligations to publish a prospectus under the KMG could also arise if security tokens akin to shares or other investments are offered to the public (initial coin offering). 

Further, the European Union has adopted a new regulation, which sets out a regulatory framework for crypto-assets, crypto-assets issuers, and crypto-asset service providers ("MiCA Regulation"). The MiCA Regulation will become applicable in part (provisions regarding asset-referenced tokens and e-money tokens) from 30 June 2024, and in other parts from 30 December 2024 onwards. As of its applicability date, the MiCA Regulation will be directly applicable in all EU member states, including Austria.

While no Austrian supplementary legislation to the MiCA Regulation is available today to set the legal framework for its application in Austria (e.g., the nomination of the FMA as the national competent authority in Austria), the FMA has already published a roadmap to obtain an authorization as a Crypto Asset Service Provider, a new form of authorization to be introduced by the MiCA Regulation. According to this roadmap, the FMA expects to start the formal authorization application phase in October 2024.