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Erscheinung:16.09.2013 03:18 PM, Stand:updated on 11.01.2022 | Topic BaFin Financing Joachim Würth, BaFin

Fees: New federal law supersedes Administrative Costs Act

Sections 1 and 2 of the Act on the Structural Reform of Federal Fees Law (Gesetz zur Strukturreform des Gebührenrechts des Bundes) entered into force on 15 August 2013. Section 1 contains the Federal Fees Act (Bundesgebührengesetz – BGebG); section 2 contains the consequential amendments. At the same time, the Administrative Costs Act (Verwaltungskostengesetz – VwKostG) was repealed on 15 August.

The new act aims to modernise, amend and standardise all federal fees legislation. For one thing, it aims to relieve the specific laws and regulations regulating fees by summarising the general provisions, creating a central basis of authorisation for standardising fees and bundling the provisions of the specific laws into uniformly structured Special Fee Regulations. For another, the act provides a legally certain and transparent basis for charging fees. Together with the planned General Fee Regulation, it establishes clear, easy-to-follow rules for calculating fees, reinforces the principle that fees should cover costs and aligns fees legislation with basic business principles.

BaFin’s income

BaFin is independent of the federal budget and is fully self-financed from its own income. Of this, over three-quarters is attributable to cost allocations levied on the supervised companies (2012: €150.9 million). It also receives administrative income, which includes fees, among other things. In the past year, administrative income amounted to €19.4 million, accounting for 11.4% of BaFin’s budget. The majority of this – €16.9 million – was derived from fees. The bulk of those were fees for official acts in accordance with the Prospectus Act (Wertpapier-Verkaufsprospektgesetz – VerkProspG) and the Securities Prospectus Act (Wertpapierprospektgesetz – WpPG) (€6.8 million) and fees in accordance with the Investment Act (Investmentgesetz – InvG) (€5.1 million relating to foreign investment and €1.9 million to domestic investment).

Changes with practical implications

The new act introduces a number of changes as against the previous version of the VwKostG that have practical implications. These relate to when the liability to pay the fee arises, when the limitation period for payment expires, when fees fall due and surcharges for late payment.

Under the BGebG, the liability to pay the fee arises as soon as the individually attributable public service has been completed. In the case of services that have to be applied for, the BGebG no longer focuses on when the application was received, in contrast to the VwKostG. It also regulates a number of special cases, such as withdrawals of applications or objections, and the discontinuation of individually attributable public services. Compared with the VwKostG, the BGebG also makes a clearer distinction between the limitation periods for charging fees and those for payment.

The fee now falls due ten days after the authority announces the amount to be charged unless the authority sets a different date. Previously, the fee fell due as soon as it was announced if a later date was not set by the authority. Surcharges for late payment are now obligatory rather than at the discretion of the authority, as previously. Surcharges must be paid as soon as the due date has passed.

Transitional provisions

The VwKostG must still be applied in full to individually attributable public services applied for or begun before 15 August 2013, but not fully performed by that date.

In the case of fees and expenses charged in accordance with regulations adopted before 15 August 2013, individual provisions of the VwKostG must continue to be applied in accordance with section 23 (3)–(7) of the BGebG. Among other things, this affects the calculation of sliding-scale fees for individually attributable public services, the refusal, withdrawal, or settlement of an application or an objection, the withdrawal or revocation of an administrative act and the levying of expenses.

FinDAG and BaFin’s Fees Regulations

In the short-term, the new act only minimally impacts the fees regulations issued under the Act Establishing the Federal Financial Supervisory Authority (FinanzdienstleistungsaufsichtsgesetzFinDAG), the supervisory laws and BaFin’s Fees Regulations. The most important change is that the term “official acts” has been replaced by the term “individually attributable public services”.

All of the fees regulations in the FinDAG, the supervisory laws and BaFin’s Fees Regulations will be abolished within a maximum of five years, i.e. by 14 August 2018. The plan is to replace them with the Federal Ministry of Finance’s Special Fee Regulation.

Fees regulations relevant to BaFin

Act Establishing the Federal Financial Supervisory Authority (FinanzdienstleistungsaufsichtsgesetzFinDAG): sections 14 and 17b

Supervisory laws:

  • Securities Acquisition and Takeover Act (Wertpapiererwerbs- und Übernahmegesetz WpÜG): section 47
  • Securities Prospectus Act (WertpapierprospektgesetzWpPG): section 33
  • Capital Investment Act (VermögensanlagengesetzVermAnlG): section 27

BaFin’s Fees Regulations

  • Regulation on the Imposition of Fees and Allocation of Costs Pursuant to the FinDAG (Verordnung über die Erhebung von Gebühren und die Umlegung von Kosten nach dem FinanzdienstleistungsaufsichtsgesetzFinDAGKostV)
  • Investment Prospectus Regulation (Vermögensanlagen-Verkaufsprospektgebührenverordnung – VermVerkProspGebV)
  • Ordinance relating to Fees Payable under the Securities Acquisition and Takeover Act (WpÜG-GebührenverordnungWpÜGGebV)
  • Securities Prospectus Fees Regulation (WertpapierprospektgebührenverordnungWpPGebV)

Additional information

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