EN  ECB -PUBLIC  
OPINION OF THE EUROPEAN CENTRAL BANK  
of 22 December  2014  
on the  publication of documents  and the use of the pension reserve   
(CON/2014/ 91) 
 
Introduction and legal basis  
On 12 November 2014, the European Central Bank (ECB) received a request from the Austri an Mi nistry 
of Finance for an opinion on the draft law on the determination of weighted average yields for federal 
loans (UDRBG) and amending the Law on the Oesterreichische National Bank , the  Law of 2010 on 
Sanctions and the Law of 2004 on Currency  (herei nafter the ‘draft law’).  
The ECB’s competence to deliver an opinion is based on Articles 127(4)  and 282(5) of the Treaty on the 
Functioning of the European Union and on the third, fourth and fifth indent of Article 2(1) of Council 
Decision  98/415/EC1, as t he draft law  relates to the Oesterreichische National Bank (OeNB) , the 
collection, compilation and distribution of monetary, financial, banking,  payment systems and balance of 
payments statistics as well as payment and settlement systems . In accordance wit h 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 draft law  follows on  from a recent draft law opined on by the ECB2. Whereas the issues 
consulted on before remain almost unchanged, the draft law amends further provisions of the Law 
on the Oesterreichische National Bank, the Law of 2010 on Sanctions and the Law of 2004 on 
Currency.  
1.2 The draft law amends  the procedure regarding the publication of OeNB official documents . Under 
the draft law , ordinances issued by the OeNB will be published in the Federal Law Gazette 
(Bundesgesetzblatt ). The same shall apply to ordinances issued by the OeNB under the Law  of 
2004 on Currency  and the  Law of 2010 on Sanctions. Furthermore, the draft law entitles the OeNB 
to publish terms and conditions relating to its area of responsibility on its website.  
                                                 
1  Council Decision 98/415/EC of 29 June 1998 on the consultation  of the European Central Bank by national authorities 
regarding draft legislative provisions (OJ L 189, 3.7.1998, p. 42).  
2  See Opinion CON/2014/75. All ECB documents are published on the ECB’s website at www.ecb.europa.eu.  
ECB -PUBLIC  
2 1.3 The draft law entitles  the central  bank to use data it receives  in connection with one task for all 
other tasks assigned to it by federal law, international treaty or directly applicable Union law. 
However, this right of cross -functional data usage is subject to directly applicable Union law or 
national law  and to the rules concerning Austrian banking secrecy  (Section 38 of the Austrian 
Banking Act) . Furthermore, the draft law entitles the OeNB to provide disclosing parties with a data 
template suitable for providing required information in a standardised, electronic form. The OeNB 
will publish such data templates  and its technical specifications on its website. In the context of its 
banking supervisory tasks, the OeNB is already entitled to compile data directly from credit 
institutions if the Financial Market Authority does not have the request ed data  available. In this 
context, the draft law introduces an administrative penalty of up to EUR 2000 if a credit institution 
does not meet an OeNB request for information or knowingly provides false information.  
1.4. The draft law also provides for new notification obligations for payment system operators  who will  
have to inform the OeNB within two weeks in the event of starting or suspending operations in connection with a payment system. Furthermore, such operators have to notify the OeNB of the 
parties that use their payment system s as well as  any changes in this regard.  The draft law 
determines that breaches of these new notification requirements will be sancti oned with 
administrative penalties  of up to EUR 2000.  
1.5 In addition, t he draft law follow s up on a Law on the limitation of special pension arrangements
3, 
which enters into force on 1 January 2015. This law implements certain changes to the pension 
rights for OeNB employees and retirees, such as a gradual increase of the retirement age and the  
obligation to pay pension safeguard contributions. I t is expected that the OeNB’s payment 
obligations in relation to its pensioners will decline due to these measures. The draft law requires 
the OeNB to allocat e up to 10%  of the OeNB’s annual profit balance to its pension reserve until it 
holds sufficient capital in order to ensure respective pension payments to former OeNB employees. 
However, s hould the pension reserve exceed the necessary capital  on a sustained basis , the draft 
law suggests to partly rel ease the excess  and post the difference to the bank’s profit and loss 
account.  The explanatory memorandum to the government bill considers  an excess of funds to be 
sustainable if a surplus is also probable for the following year, thereby taking into account market 
trends and the OeNB’s expected payment obligations.  
 
2. General observations  
The draft law further amends a draft law  that the ECB has already  opined on. The ECB understands that 
the original draft version has not yet been adopted , but has been amended further during the national 
legislative process. As the draft law contains  provisions regarding the OeNB that have not yet been 
consulted on, the Austrian authorities have requested a new ECB opinion. As regards the replacement of 
                                                 
3  Law on the limitation of spe cial pension arrangements, BGBl I No 46/2014; see Opinion CON/2014/35.  
ECB -PUBLIC  
3 Austria’s current i ndicator for federal loans with the new indicator , ‘circulation weighted average yields of 
federal bonds’ (hereinafter ‘UDRB’), the only change  in the new draft law  in this respect concerns the 
entry into force. Instead of 1 January 2015, the UDRB will replace the current indicator for federal loans 
from 1 April 2015. In connection with the update of the OeNB ’s appointment procedure for external 
auditors, the ECB notes that the draft law remains unchanged. Accordingly, the ECB comments made in 
its Opinion C ON/2014/75 remain relevant.    
 
3. Specific observations  
Publication of documents and data collection  
3.1 The ECB welcomes the changes regarding the modernisation of the OeNB’s publication 
procedures for ordinances and terms and conditions relating to its  area of responsibility . The ECB 
expects that this will , inter alia , facilitate the implementation of changes to the monetary policy 
instruments and procedures of the Eurosystem by the OeNB.  
3.2 The ECB also welcomes the enabling clause  for the multi -use of  the data collected by the OeNB. 
This is  in line with Union requirements to minimise the reporting burden for respondents  and 
facilitates the coherence of information for analysis and decision making. In addition,  the draft law 
makes provisions to ensure the protection of confidential data in line with Union and national 
requirements.  
3.3 The ECB welcomes the OeNB’s right to provide data templates to reporting agents. However, i n 
order to ensure consistent application  of the data templates , the draft law  should clearly state that 
the OeNB  may require reporting agents to use the data templates.  
 Pension reserve  
3.4 In line with the principle of central bank independence, an NCB’s decision- making bodies should be 
able to decide on the calculation of the prof its independently and professionally4. With regard to 
profit allocation, an NCB’s statute may prescribe how its profits are to be allocated. Profits may be 
distributed to the State budget only after any accumulated losses from previous years have been 
cove red and financial provisions deemed necessary to safeguard the real value of the NCB’s 
capital and assets have been created. Any amendment to an NCB’s profit distribution rules should 
only be initiated and decided in cooperation with the NCB, which is best  placed to assess its 
required level of reserve capital. As regards financial provisions or buffers, NCBs must be free to independently create financial provisions to safeguard the real value of their capital and assets.  
                                                 
4  See Convergence Report 2014, p. 26.  
ECB -PUBLIC  
4 3.5  Member States may also not pr event  NCBs from building up their reserve capital to a level which is 
necessary for a member of the E uropean System of C entral Banks  to fulfil its tasks.  Additionally, to 
protect autonomy in staff matters, which is one aspect of the principle of financial independence, 
the ECB has consistently recommended in its previous opinions5 and in its convergence reports 
that any amendment to legislation on remuneration for members of an NCB’s decision- making 
bodies and its employees should be decided in close and ef fective cooperation with the NCB . This 
should be achieved by  taking due account of the NCB’s views, to ensure the ongoing ability of it  to 
independently carry out its tasks. Autonomy in staff matters extends to issues relating to staff 
pensions . 
3.6  Against this background, the ECB notes that the draft law proposes a change to the calculation and 
profit distribution rules  in relation to pension reserves . The ECB understands that a (part ial) 
dissolution of the pension reserve may occur  if sufficient funds are held in the pension reserve in 
compl iance  with these new calculation and profit distribution rules .  
3.7 In line with the principle of central bank independence, the amendment  proposed in the draft law  
should only be initiated and decided in close and effective cooperation with the OeNB , which is 
best placed to assess the necessary required capital  in order to preserve the OeNB’s autonomy in 
issues related to staff pensions . Any (partial) dissolution of the pension reserve should be made 
with great care because,  once the balance of the reserve is reduced , it may only be replenished 
again with future annual profits  of the OeNB . Therefore, while the replenishment of the reserve is 
restricted to 10%  of the annual profits, the release of the reserve appears to be automatic, despite 
the inherent volatility of the related calculations. This may mean that the speed of replenishment  
may be  slower than needed and therefore a longer -term perspective in evaluating the sufficiency of 
the reserve than is currently env isaged by the explanatory memorandum  to the draft law  should be 
considered.  Accordingly,  it is recommended that  a definition of the term sustainable  (‘nachhaltig’)  
be inserted directly in the draft law rather than  in the explanatory memorandum . Furthermore, the 
explanation provided in the memorandum, whereby overfunding would be sustainable if an excess of the assets over the required capital in the current and following year is probable, does not 
sufficiently take into account the long- term nature of pensi on obligations. Thus, the sufficiency of  
the pension reserve should be assessed over a three to five years perspective  as a minimum .  
                                                 
5  See Opinion CON/2014/35.  
ECB -PUBLIC  
5 Finally, this assessment should be carried out by an independent qualified actuary, based on actuarial 
assumptions that have been drawn up in consultation with the OeNB.  
 
This opinion will be published on the ECB’s website.  
  Done at Frankfurt am Main, 22 December  2014.  
 
[signed]   
The President of the ECB  
Mario DRAGHI