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29.04.2008

Confirmation of Bank Austria's reservations on the transfer of consolidation data
Haftungsverbund support mechanism: Cartel court imposes obligations on Erste Bank

  • The cartel court confirms Bank Austria’s doubts concerning the original Haftungsverbund support mechanism.
  • The attempt to implement the Haftungsverbund support mechanism in the form of a consolidated group has so far been unsuccessful for the two biggest savings banks, and has raised new questions.
  • Bank Austria will appeal to the Supreme Court against the attempt to implement the Haftungsverbund support mechanism in this form.

The cartel court has now taken into consideration Bank Austria's reservations regarding the Haftungsverbund support mechanism, and it has imposed additional constraints on Erste Bank in the form of mandatory commitments. These are as follows:
- The court has prohibited the transfer of data from the savings banks to Erste Bank for the purpose of the consolidation.
- It has likewise prohibited Erste Bank's appointment of the managing directors of the Haftungsverbund company – i.e. the central body of the Haftungsverbund support mechanism – and it has additionally required the bodies of the Haftungsverbund company to undertake not to disclose confidential information to Erste Bank.
- The use of the credit calculator, previously made available jointly on the websites, has now been banned.

This therefore takes account of Bank Austria's previously stated misgivings relating to the transfer of consolidation data between the savings banks and Erste Bank solely on the grounds of the Haftungsverbund support mechanism agreement.

However, in its decision the cartel court has noted that the savings banks, which have signed the "supplementary agreement" with legal effect, constitute a group with Erste Bank, within which the commitments mentioned above are not applicable. Among the reasons for this is that Erste Bank is able to assert its own competitive interests through the Haftungsverbund support mechanism (i.e. even against the wishes of the savings banks).

This raises the question as to how this can be compatible with the stated purpose of the Haftungsverbund support mechanism, which is – as stated by Erste Bank – solely to guarantee the financial stability of the savings banks. This also appears to be at variance with the continued independence of the savings banks, as repeatedly claimed by Erste Bank. It must also be verified  whether the resolutions required to authorise such relinquishing of independence exist within the relevant bodies of the savings banks. 

The decision by the cartel court is therefore of direct relevance for the two biggest savings banks within the Haftungsverbund support mechanism, the Steiermärkische Sparkasse and the Oberösterreichische Sparkasse, which have not yet signed the supplementary agreement with full legal effect. While this situation prevails, therefore, the commitments are legally applicable in full to these banks.

Bank Austria will appeal to the Supreme Court for clarification of the questions that are still outstanding even after the decision by the cartel court, in particular the matter relating to the alleged group relationship.

Enquiries:  Bank Austria, Communications Austria
Martin Halama, tel. +43 (0) 50505 52371
e-mail: martin.halama@unicreditgroup.at