EN ECB -PUBLIC  
 
OPINION OF THE EUROPEAN CENTRAL BANK  
of 30 April 20 21 
on freedom of i nformation  
(CON/ 2021/ 16) 
 
Introduction and legal basis  
On 18 March 2021  the European Central Bank (ECB) received a request from the Austrian Federal 
Chancellery  for an opinion on a draft law amending the Law on the Federal Constitution, the Law of 1948 
on the Court of Auditors and the Law of 1953 on the Constitutional Court an d adopting a Law on f reedom 
of information (hereinafter the ‘draft law’)1. 
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 the third indent of Article 2(1) of Council Decision 98/415/EC2, as 
the draft law relates to the Oesterreichische Nationalbank (OeNB)  and the tasks concerning the prudential 
supervision of credit institutions conferred upon the ECB pursuant to Article 127(6) of the Treaty . In 
accordance with the first sentence of Article 17.5 of the Rules of Procedure of the European Central Bank, 
the Governing Council has adopted this opinion.  
 
1. Purpose of the draft law  
1.1 The draft  law aims at ensuring a transparent and publicly accountable government. To achieve this, 
the draft law abolishes the existing principle of official secrecy under  the Austrian Federal 
Constitution3 and replaces it with a twofold principle of  freedom of information. First, a  constitutional 
obligation to publish ‘information of general interest’ via a central information register is introduced. 
The draft law defines information of general interest as information concerning or relevant to a 
general group of persons, in particul ar studies, expert reports, opinions and contracts with a value 
of at least EUR 100 000. Second, a constitutionally guaranteed right of  access to ‘information’ for 
anyone is established . In the Law on f reedom of information4, the term information is more broadly 
defined as ‘information of general interest’ and means any record for official or business purposes 
in the sphere of activity of an institution, irrespective of the form in which it exists and is available.   
1.2 The new information rights and obligations will be further specified in a new Law on f reedom of 
 
1 Bundesgeset z, mit dem das Bundes- Verfassungsgesetz, das Rechnungshofgesetz  1948 und das Verfassungsge-
richtshofgesetz  1953 geändert und ein Informationsfreiheitsgesetz erlassen wird . 
2 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).  
3 Bundes -Verfassungsgesetz, BGBl. Nr. 1/1930 as amended by BGBl. I Nr. 2/2021.  
4  Bundesgesetz über den Zugang zu Informationen ( Informationsfreiheitsgesetz  – IFG). 
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2 information.  
1.3 The obligation to publish information of general interest  is addressed to all kind s of public bodies , 
including institutions entrusted with the management of federal administrati ve activities. The right 
of access to information applies to such bodies and additionally to all foundations, funds, institutions 
and undertakings  subject to the control of the Rechnungshof Österreich  (Austrian Court of 
Auditors ), e.g. s tate-owned undertakings .  
1.4 The draft law exempts certain information from the requirement to publish or to provi de access to 
the public (hereinafter the ‘exempt information’). The exempt information  includes information 
whose secrecy is, inter alia,  (a) necessary for compelling reasons of  integration and foreign policy , 
in particular in accordance with directly applicable provisions of E uropean Union law, (b) in the 
interest of national security , national defence or the maintenance of public order and security , 
(c)  necessary for the preparation of a decision, in particular in the interest of official proceedings 
or to protect legal provisions on the confidentiality of negotiations, deliberations and votes  or 
(d)  necessary to safeguard overriding legitimate interests of another party , in particular to protect 
professional , business or trade  secret s. Exempt information may only be withheld to the extent  and 
for as long as it  is necessary  and proportionate after consideration of all interests involved and not 
otherwise provided for by law.  If an exemption only applies to part of the information, only that part 
shall be subject to the obligation to maintain secrecy.  
1.5 The explanatory memorandum sheds further light on the scope of exempt information under the 
draft law. In particular, the explanatory memorandum states that, w ith regard to secrecy or 
information regulations determined under U nion law, the circumstance of ‘overriding reasons 
pertaining to integration policy’ justifying an exception may be applicable. The explanatory 
memorandum states that this exception is applicable  irrespective of whether U nion law enjoys 
priority of application . The ECB understands from this reference that conf identiality obligations 
under directly applicable U nion law shall in any case take precedence over national information 
obligations such as those stated in the draft law. Regarding the ‘overriding legitimate interests of 
another party’ to be protected, the explanatory memorandum states that potentially overriding 
private interests include, inter alia, legally protected professional, business or trade secrets.   
1.6 Information rights are safeguarded by a judicial procedure. If access to the information is not 
granted by the respective institution, the responsible body for providing information shall, at the 
written request of the person requesting the information, issue a decision within two months of 
receipt of the request. A n appeal may be filed a gainst such a decision with the competent 
administrative court . The court has to decide on the legitimacy of the refusal to provide information.  
1.7 The draft law will enter into force 18 months after its publication in the Bundesgesetzblatt  (Federal 
Law Gazette) . The explanatory memorandum notes that the purpose of this transition period 
between the draft law’s publication and its entry into force (vacatio legis) is to examine and, if 
necessary, amend existing confidentialit y provisions and information rules on the basis of the new 
constitutional provisions . 
 
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3 2. General Observations  
2.1 The ECB generally welcomes the draft law ’s aim to enhanc e the legitimacy and accountability of  
the public sector by providing access to certain information to the general public5. 
2.2 The ECB wishes to recall that there are various provisions of Union law governing the general 
public’s right of access to information held by the OeNB and the Finanzmarktaufsicht  (FMA , 
Austrian Financial Market Authority)  in their respective capacities as a member of the European 
System of Central Banks (ESCB) and/or  a national competent authority (NCA) assisting the ECB 
in the exercise of the tasks conferred on the ECB by Council Regulation (EU) No 1024/20136. 
2.3 Article  37(1)  of the Statute of the European System of Central Banks and of the European Central 
Bank (hereinafter the ‘Statute of the ESCB’) provides that the members of the governing bodies 
and the staff of the ECB and the national central banks (N CBs) in the ESCB shall be required, even 
after their duties have ceased, not to disclose information of the kind covered by the obligation of 
professional secrecy.  
2.4 Article 27(1) of Regulation (EU) No 1024/2013 provides that members of the Supervisory Board, 
staff of the ECB and staff seconded by participating Member States carrying out supervisory duties, 
even after their duties are ceased, are subject to the professional secrecy requirements set out in 
Article  37 of the Statute of the ESCB and in the relevant acts of Union law.  
2.5 Article 53(1) of Directive 2013/36/EU  of the European Parliament and of the Council7 requires that 
Member States provide that all persons working for or who have worked for the competent 
authoriti es and auditors or experts acting on behalf of the competent authorities are  bound by the 
obligation of professional secrecy.  
2.6 Decision ECB/2004/3 of the European Central Bank8 defines the conditions and limits according to 
which the ECB gives  public access  to ECB documents. Documents that are in the possession of 
an NCB and have been drawn up by the ECB may be disclosed by the NCB only subject to prior 
consultation of the ECB concerning the scope of access, unless it is clear that the document will or 
will not be disclosed. Alternatively, the NCB may refer the request to the ECB9. While Decision 
ECB/2004/3 guarantees the right of access to ECB documents10, it also protects  certain public and 
private interests by way of exceptions11. For example, a ccess to a document containing opinions 
for internal use as part of deliberations and preliminary consultations within the ECB or with NCBs 
shall be refused even after the decision has been taken, unless there is an overriding public interest 
 
5  See paragraph 2.1 of Opinion CON/2019/31 and of CON/2012/76. All ECB opinions are published on EUR -Lex. 
6  Council Regulation (EU) No 1024/2013 of 15 October 2013 conferring specific tasks on the European Central Bank 
concerning policies relating to the prudential supervision of credit institutions (OJ L 287, 29.10.2013, p. 63).  
7  Directive 2013/36/EU of the European Parliament and the Council of 26 June 2013 on access to the activity of credit 
institutions and the prudential supervision of credit instit utions and investment firms, amending Directive 2002/87/EC 
and repealing Directives 2006/48EC and 2006/49/EC (OJ L 176, 27.6.2013, p. 338).  
8  Decision ECB/2004/3 of the European Central Bank of 4 March 2004 on public access to European Central Bank 
docume nts (OJ L 80, 18.3.2004, p. 42).  
9  See Article 5 of Decision ECB/2004/3.  This provision also applies to documents originating from the European Mon-
etary Institute or the Committee of Governors.  
10  See Article 2(1) of Decision ECB/2004/3.  
11  See Article 4(1) and (2) of Decision ECB/2004/3.  
 
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4 in disclosure12. 
2.7 ECB documents may also be in the possession of the NCAs as a result of their duty to assist the 
ECB, to cooperate in good faith and to exchange information with the ECB pursuant to Regulation 
(EU) No 1024/2013. Decision (EU) 2015/811 of the European Central Bank (ECB/2015/16)13 
provides that where an  NCA receives a request for an ECB document in its possession, the NCA 
must  consult the ECB on the scope of access to be granted, prior to taking a decision on disclosure, 
unless it is clear that the document will or will not be disclosed. Alternatively, the NCA may refer 
the request to the ECB14. 
2.8 Pursuant to the rules on professi onal secrecy contained in Directive 2013/36/EU  confidential 
supervisory information received in the course of their duties by persons working for or who have 
worked for competent authorities, and auditors or experts acting on behalf of competent authorities, 
may be disclosed only in summary or aggregate form, such that individual credit institutions cannot 
be identified, without prejudice to cases covered by criminal law15. Directive 2013/36/EU contains 
an exhaustive list  of provisions16 detailing the conditi ons under which competent authorities , 
including the ECB and the NCAs within the framework of the Single Supervisory Mechanism (SSM),  
may use confidential supervisory information, the exchange of information between competent 
authorities and with oversight bodies, the transmission of information concerning monetary, deposit 
protection, systemic and payment aspects, the transmission of information to other entities, and 
the disclosure of information concerning clearing and settlement services17.  
 
3. Specific Observations  
 Professional secrecy requirements under U nion law 
3.1 The ECB understands from the explanatory memorandum that, with regard to the professional 
secrecy requirements under directly applicable provisions of Union law that are relevant to the 
OeNB and the FMA, the circumstance of ‘overriding reasons pertaining to integration policy’ 
justifying an exception may be applicable. Based on this, the ECB understands  that the draft law 
intends to exempt ( a) information of the k ind covered by the obligation of professional secrecy of 
the members of the governing bodies and the staff of the OeNB pursuant to Article  37 of the Statute 
of the ESCB  and (b) documents drawn up by the ECB or other ECB documents in the possession 
of the O eNB or the FMA , whose disclosure are subject to the ECB’s public access regime.  
However, information is only exempt  to the extent and subject to an overall assessment of all 
 
12  See Article 4(3) of Decision ECB/2004/3.  
13  Decision (EU) 2015/811 of the European Central Bank of 27 March 2015 on public access to European Central Bank 
documents in the possession of the national competent authorities (ECB/2015/16) (OJ L 128, 23.5.2015, p. 27).  
14  See Article 2 of Decision  (EU) 2015/811  (ECB/2015/16 ). 
15  See Article 53(1) of Directive 2013/36/EU.  
16  See paragraph 30 of the judgement of the European Court of Justice of 13 September 2018, Enzo Buccioni C-
594/16, ECLI:EU:C:2018:717 and paragraph 38 of the judgement of 19 June 2018, Baumeister  C-15/16, 
ECLI:EU:C:2018:464.  
17  See generally Articles 53  to 62 of Directive 2013/36/EU.  
 
ECB -PUBLIC  
5 interests under consideration and unless otherwise stipulated by law.  Thus, the EC B understands  
that as a result of a balancing of interests, the exemption of information under the draft law is not 
absolute.  
3.2 Against this background, the ECB suggests to ensure the explicit compatibility of the draft law with 
Article 37 of the Statute of the ESCB and the public access regime of the ECB18. In this respect it 
should be clarified in the text of the draft law  that any obligation to provide information is without 
prejudice to professional secrecy requirements under the Statute of the ESCB and the public 
access regime of the ECB .  
3.3 As far as concerns public access to information held by  the OeNB or the FMA  in their capacity as 
NCA s within the meaning of Regulation (EU) No 1024/2013, the ECB would like to raise one 
important concern. U nlike directly applicable Union law, a directive is not directly applicable,  and is 
therefore not clearly exempt from the information requirements under the wording of the draft law. 
The scope of the exemption in respect of business or trade secrets is somewhat unclear and leaves 
room for interpretation. It is  doubtful  whether the provisions on exchange of information and 
professional secrecy under Article 53  et seq. of Directive 2013/36/EU , as transposed into national 
law, are sufficiently safeguarded by the draft law, in view of the explicit reference to directly 
applicable Union law , and taking into consideration that exempt information is subject to a balancing 
of interests. Information protected by the professional secrecy requirements under Article 53(1) of 
Directive 2013/36/EU  should be clearly  and unconditionally  exempted under the draft law . 
3.4 The ECB understands that the OeNB and the FMA are public bodies within the meaning of the draft 
law. The ECB further understands th at the staff and the members of the governing bodies of the 
OeNB and the FMA remain bound by professional secrecy obligations set out in specific provisions 
of national law19. The ECB expects that any professional secrecy obligations which Union  law 
requires Member States to implement on a national level will not be derogated from by the draft 
law.  
 Legal certainty  
3.5 The draft law does not state that the information requirement s under the draft law only refer to 
information obtained after it comes into force.  Accordingly, OeNB and FMA may be faced with 
requests to provide access to information received before the draft law enter s into force. Such 
information may include information that was provided to OeNB or FMA specifically relying on the 
general exemption for public access which OeNB or FMA have to comply with under the current 
legal regime (and not under the draft law). The obligation under the draft law to provide such 
information to the general public could undermine the principle of legal certainty and the justified 
confidence of, for instance, market participants, which may have provided information to OeNB and 
FMA relying  on the information remaining confidential. For the sake of legal certainty,  it could be 
clarified that the draft law only relates  to information that OeNB or the FMA obtains after the draft 
 
18  See paragraph 3.1 of Opinion CON/2019/31 and  of CON/2012/76.  
19 Section 14 para 2 of the Law on the Financial Market Authority (Finanzmarktaufsichtsbehördengesetz, FMABG), 
section 45 of the Law on the National Bank (Nationalbankgesetz, NBG) and section 38 of the Law on Austrian 
banking (Bankwesengesetz, BWG).  
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6 law comes into force.  The ECB also wishes to reiterate that as long as the documents to be 
published by the FMA or  the OeNB in the central information register are ECB documents, prior 
consultation of the ECB is necessary.  
 
This opinion will be published on EUR -Lex. 
 
 
Done at Frankfurt am Main, 30 April 2021. 
 
[signed]  
 
The President of the ECB  
Christine LAGARDE