EN ECB -PUBLIC  
 
OPINION OF THE EUROPEAN CENTRAL BANK  
of 13 November 2015 
on measures accompanying the Single Resolution Mechanism  Regulation  
(CON/ 2015/ 47) 
 
Introduction and legal basis  
On 6 October 2015 the European Central Bank (ECB) received a request from the Austrian Ministry of 
Finance (the ‘ MoF’) for an opinion on a draft  law (hereinafter the ‘draft law’)  adapting national banking 
laws, including the Law on recovery , the Law on banking, the Financial Market Authority Act, the Deposit 
Guarantee and Investor Compensat ion Act and the National Bank Act 1984,  to comply with the Single 
Resolution Mechanism (SRM) and Union provisions on the Single Resolution Fund.   
The ECB’s competence to deliver an opinion is based on Articles 127(4)  and 282(5) of the Treaty on the 
Functio ning of the European Union and on the third and sixth indent s of Article 2(1) of Council 
Decision  98/415/EC1, as the draft law relates to the Oesterreichische Nationalbank ( OeNB ) and to rules 
applicable to financial institutions insofar as they materially influence the stability of financial institutions 
and markets . In accordance with the first sentence of Article 17.5 of the Rules of Procedure of the 
European Central Bank, the Gov erning Council has adopted this opinion.  
 
1. Purpose of the draft law  
1.1 The purpose of the draft law is to clarify the scope of application of the national banking recovery 
and resolution regime in light of Regulation (EU) No 806/2014 of the European Parliament and of 
the Council2 (hereinafter  the ‘SRM Regulation’).  
1.2 The draft law provides that the national resolution authority may exercise  its powers under the Law 
on recovery and resolution only to the extent that  these powers are not being transferred to the 
Single Resolution Board ( SRB) in connection with the SRM Regulation . In this context, the draft law 
clarifies that the OeNB may be involved in those SRM- related tasks for which the national 
resolution authority could to date seek its involvement. In order to ensure the effective fulfilment of 
their relevant tasks under t he SRM Regulation the draft law provides that  the Austrian Financial 
Market Authority  (hereinafter the ‘FMA’) , also acting as a resolution authority , and the OeNB must  
                                                 
1  Council Decision 98/415/EC of 29 June 1998 on the consultation of the European Central Bank by national author i-
ties regarding draft legislative provisions (OJ L 189, 3.7.1998, p. 42).  
2  Regulation (EU) No 806/2014 of the European Parliament and of the Council of 15 July 2014 establishing uniform 
rules and a uniform procedure for the resolution of credit institutions and certain investment fi rms in the framework of 
a Single Resolution Mechanism and a Single Resolution Fund and amending Regulation (EU)  No 1093/2010 (OJ L 
225, 30.7.2014, p. 1).  
ECB -PUBLIC  
2 collaborate closely.   
1.3 As regards the Law on recovery and resolution , the draft law i ntroduces general investigati ve rights 
for the national resolution authority within its area of responsibility. These investigative powers 
comprise the right to:  (a) obtain information from institutions and undertakings; ( b) inspect the 
accounts, written documents and data storage media belonging to institutions and undertakings; (c) require institutions and undertakings  to produce interim accounts , make disclosures and 
configure their audit reports in a particular format ; and ( d) carry out on- site inspecti ons at the 
premises of institutions and undertakings , or commission such inspections to be carried out by third 
parties.  According to the draft law, the national resolution authority must mandate the OeNB to  
conduct such on-site inspections.  
1.4 The draft law
3 limits the federal government’s power  to seek reimbursement from the OeNB’s and 
the FMA’s executive bodies and employees with regard to any damages it has paid to third parties. 
Pursuant to the Law on the FMA, the FMA as well as its employees and exec utive  bodies are not 
liable towards the injured party. If the Federal State compensates an injured party for  damage 
incurred it is entitled to seek  reimbursement fr om the FMA’s executive bodies and employees 
under  the provisions of the Law on the liability  of public bodies (hereinafter  the ‘AHG’). Although 
the Federal State may have recourse, under the AHG,  against  the FMA’s  and OENB’s executive 
bodies and employees , if they have acted with gross negligence or intentionally4, the draft law 
limits such recourse to intentional breaches of the respective executive bodies and employees 
when carrying out tasks laid down in the Law on recovery and resolution, the SRM Regulation or in 
delegated legal act s pursuant to Directive 2014/59/EU of the European Parliament and of the 
Council5 or the SRM Regulation. The ECB understands that this restriction of the federal 
government’s power to seek reimbursement has no impact on the Federal State’s liability for 
damages caused by the FMA’s executive bodies and employees in the enforcement of the federal 
acts specified under Art icle 2 of the Financial Market Authority Act, including the Law on recovery 
and resolution.  
1.5 The draft law also excludes  Federal State liability for damages caused by the OeNB and the FMA, 
including their executive bodies and employees, when:  (a) acting on an instruction from the SRB, 
(b) preparing or implementing decisions for the SRB , or (c) collaborating with, exchanging 
information with or otherwise supporting the SRB6. The MoF argues  that this statutory exclusion of 
liability is justifiable i n view of the transfer of tasks to the SRB and the SRB’s liability pursuant to 
Article 87 of the SRM Regulation. The draft law’s explanatory memorandum explicitly refers to a  
similar exclusion of liability fo r damages caused by the FMA and the OeNB in connection with their 
work under the SSM Regulation. In the SSM context, the national legal framework excludes 
                                                 
3  See Art icle 2(23) of the draft law.  
4  See Article 3(2) of the Law on the liability of public bodies.  
5  Directive 2014/59/EU of the European Parliament and of the Council of 15 May 2014 establishing a framework for 
the recovery and resolution of credit institutions and investment firms and amending Council Directive 82/891/EEC, 
and Directives 2001/24/E C, 2002/47/EC, 2004/25/EC, 2005/56/EC, 2007/36/EC, 2011/35/EU, 2012/30/EU and 
2013/36/EU, and Regulations (EU) No 1093/2010 and (EU) No 648/2012, of the European Parliament and of the 
Council (OJ L 173, 12.6.2014, p. 190).  
6  See Art 3 no 11 and Art 4 no 1 of the draft law.  
ECB -PUBLIC  
3 Federal State liability in respect of damage caused by acts of the FMA and the OeNB, including its 
executive bodies and employees, when implementing or fulfilling an instruction from  the ECB, 
preparing or executing ECB decisions, and when cooperating with, exchanging information with 
and providing other support to  the ECB7. 
1.6 The draft law provides for  the adaptation of national provisions on recovery and resolution to the 
SRM Regulation, including rules on the establishment of a Single Resolution Fund (SRF). In this 
context, the draft law also sets out how national contributions are to be charged and tr ansferred to 
the SRF. The draft law thus aligns the Austrian legal framework with the Intergovernmental 
Agreement on the Transfer and Mutualisation of Contributions to the Single Resolution Fund, 
Commission Delegated Regulation (EU) 2015/638 and Council Im plementing Regulation 
(EU) 2015/819.  
 
2. General observations  
2.1 The ECB takes note that the draft law aims to align the Austrian national banking supervisory 
structure with the SRM regime and to ensure that no legal obstacles arise under national law in  
relation to the performance by the SRB, with the assistance of the national resolution authority , of 
its banking recovery and resolution tasks under the S RM Regulation. The ECB understands that 
the rules are not intended to narrow or amend the scope of the S RM Regulation, which is directly 
applicable.  
2.2 The ECB notes that the draft provision requiring the national resolution authority to assign on- site 
inspections to the OeNB in a resolution context is not a genuinely new task conferred o n the OeNB. 
Although the respective provision introduces general investigative powers for the national 
resolution authority, including the right to order on- site inspections, which shall be conducted by the 
OeNB, the Law on recovery and resolution already provides that the OeNB has resolution- related 
tasks similar to thos e assigned to it under section 79 of the Law on banking.  
 
3. Specific observations  
3.1 The ECB understands that t he draft law aim s to clarify the involvement of the OeNB in SRM- related 
tasks . According to the explanatory memorandum, the SRM-related tasks may be allocate d to the 
OeNB regarding those subjects for which its involvement can be sought by the national resolution 
authority. However, the wording of the amended section 3 (5) of the Law on recovery and resolution 
seems ambiguous regarding the scope  of involvement of the OeNB in SRM -related tasks . This 
provision might be interpreted as determining different areas of involvement of the OeNB in an 
                                                 
7  See paragraph 1.6 of Opinion CON/2014/43.  
8  Commission Delegated Regulation EU 2015/63 of 21 October 2014 supplementing Directive 2014/59/EU of the 
European Parliament and of the Council with regard to ex ante contributions to resolution financing arrangements 
(OJ L 11, 17.1.2015, p. 1).  
9  Council Implementing Regulation (EU) 2015/81 of 19 December 2014 specifying uniform conditions of application of 
Regu lation (EU) 806/2014 of the European Parliament and of the Council with regard t o ex ante contributions to the 
Single Res olution Fund (OJ L 15, 22.1.2015, p.1).  
ECB -PUBLIC  
4 SRM context compared to its tasks under the national reco very and resolution regime. This is  
because the explicitly mentioned list of subjects where the OeNB may not be involved in an SRM 
context differs from the exemptions that apply in the national context. The ECB recommends 
amending the draft law in order to align the OeNB’s involvement in SRM- related matters with what 
is expressed in the explanatory memorandum.  
3.2 Pursuant to Article 87(3) of the SRM Regulation, the SRB shall, in respect of non- contractual 
liability, make good any  damage caused by it or by  its staff in the performance of their duties, in 
particular their resolution functions, including acts and omissions in support of foreign resolution 
proceedings. Pursuant to Art icle 87(4)  of the SRM Regulation, the SRB shall compensate a 
national resolut ion authority for the damages which it has been ordered to pay by a national court, 
or which it has, in agreement with the SRB, undertaken to pay pursuant to an amicable settlement, 
which are the consequences of an act or omission committed by that nationa l resolution authority in 
the course of any resolution under the SRM Regulation of the entities and groups  referred to in 
Article 7(4)(b) and 5 of the SRM Regulation.  However, t hat obligation shall not apply where that act 
or omission constituted an infringement of the SRM Regulation, of another provision of Union law, 
of a decision of the SRB, of the Council, or of the Commission, committed intentionally or with 
manifest and serious error of judgement. The wording of draft Article 3(7) of the Law on the FMA 
and draft Article 79(8) of the Law on banking could be understood as effectively placing liability for 
damage caused by the acts and omissions of the FMA and the OeNB  occurring within the SRM 
framework exclusively and categorically on the SRB in all cases. This could lead to an unclear legal 
situation with the potential of negatively impacting on the efficient and effective functioning of the 
SRM, in particular having regard to the direct applicability of the SRM Regulation. Therefore, it 
would be advisable to amend the draft law in order to ensure that the proposed exemptions from 
the national liability framework are in compliance with Union law and are without prejudice to the allocation of liability under the SRM framework
10. 
 
This opinion will be publis hed on the ECB’s website.  
 
 
Done at Frankfurt am Main, 13 November 2015.  
 
[signed]  
 
The President of the ECB  
Mario DRAGHI  
                                                 
10  See paragraph 5.2 of Opinion CON/2014/43.  All ECB opinions are published on the ECB’s website at 
www.ecb.europa.eu.