EN
OPINION OF THE EUROPEAN CENTRAL BANK
of 5 June 2003
at the request of the Austrian Federal Ministry of Finance
on a draft Federal law
(i) repealing the existing Foreign Exchange Act of 1946 and replacing it by the Foreign Exchange
Act 2003, and (ii) amending the Federal Act on cross-border transfers
(CON/2003/8 )
1. On 16 May 2003 the European Central Bank (ECB) received a request from the Austrian Ministry
of Finance for an opinion on a draft Federal law (the draft law) (i) repealing the existing ForeignExchange Control Act of 1946 (Devisengesetz) a nd replacing it by the Foreign Exchange Act 2003
(Devisengesetz 2003), and (ii) amending the Federal Act on cross border transfers(Überweisungsgesetz).
2. The ECBs competence to deliver an opinion is based on Article 105(4) of the Treaty establishing
the European Community (Treaty), the first indent of Article 4(a) of the Protocol on the Statute of
the European System of Central Banks and of the ECB (Statute) and the first, second, third,fourth and fifth indents of Article 2(1) of Counc il Decision No 415/98/EC of 29 June 1998 on the
consultation of the European Central Bank by national authorities regarding draft legislativeprovisions
1, since the draft law contains provisions (i) putting in place a new regime for foreign
exchange transactions by repealing the existing Foreign Exchange Control Act and replacing itwith the Foreign Exchange Act 2003, (ii) conferring rights and obligations on the OesterreichischeNationalbank (OeNB) concerning the collectio n, compilation and distribution of balance of
payments statistics, and (iii) implementing penalty provisions in the Federal Act on cross bordertransfers in accordance with Council Regulation (EC) No 2560/2001 of the European Parliamentand of the Council on cross-border payments in euro
2. In accordance with the first sentence of
Article 17.5 of the Rules of Procedure of the European Central Bank3, the Governing Council of
the ECB has adopted this opinion.
3. The ECB notes that the draft law has two main purposes.
First, Article I of the draft law will repeal the Foreign Exchange Control Law currently in force and
replace it with the Foreign Exchange Act 2003. The provisions of the existing Foreign Exchange
                                                     
1OJ L 189, 3.7.1998, p. 42.
2OJ L 344, 28.12.2001, p. 13.
3OJ L 125, 19.5.1999, p. 34.
2Control Law, which essentially originate from 1946, are no longer appropriate to deal with todays
situation taking into account both Austrias membership of the European Union and in particularthe introduction of the euro. The current position is that the principle of free movement of capital inArticles 56 to 60 of the Treaty has substantially been achieved in Austria by means of OeNBregulations. However, the existing Foreign Exchange Control Law itself is still based on theprinciple of restricting foreign exchange transactions and the need for the OeNB to monitor cross-border movement of capital and payments in general. Also, conversion to the euro has not yet beenformally carried out in the Foreign Exchange Control Law. Finally, Article I of the draft lawcontains provisions conferring rights and obligations on the OeNB regarding the balance ofpayments and international investment position (b.o.p./i.i.p.) statistics.
Second, Article II of the draft law contains provisions amending the Federal Act on cross-bordertransfers in order to meet the requirement to comply with Regulation (EC) No 2560/2001. To thisend, Article II of the draft law inserts penalty provisions into the Federal Act on cross-bordertransfers.
4. The ECB welcomes Article I of the draft law, which confers rights and obligations on the OeNB as
regards balance of payments and international investment position (b.o.p./i.i.p.) statistics. Theseprovisions are of particular importance in view of the fact that Austria plans to change its currentdata collection system, which is at present largely based on indirect reporting by monetary financialinstitutions (MFIs) on own transactions and positions and also on behalf of their clients, to a systemlargely based on direct reporting by economic agents (including MFIs) of their transactions andpositions in relation to non-resident counterparts. In particular, the ECB welcomes the followingprovisions.
- Under Article I § 7(1) of the draft law, th e OeNB will remain the Austrian b.o.p./i.i.p.
compiler. In addition to national statistics, Article I of the draft law also mentions thoseb.o.p./i.i.p. statistics required by Community law. As explained in the explanatory notes tothe draft law, Community law imposes an obligation in relation to the ECB and theCommission (Eurostat). In this context, the explanatory notes refer to the GuidelineECB/2000/4 of 11 May 2000 on the statistical reporting requirements of the ECB in the fieldof balance of payments statistics, the international reserves template and internationalinvestment position statistics
4. It is noted that Guideline ECB/2000/4 has already been
repealed and replaced by Guideline ECB/2003/7 of 2 May 2003 on the statistical reportingrequirements of the ECB in the field of balance of payments and international investmentposition statistics, and the international reserves template
5. As a result, the reference should
be corrected in the explanatory memorandum. Furthermore, the ECB notes that theexplanatory notes to the draft law recommend the use of the international standards laiddown in the IMF Balance of Payments Manual, 5th edition (BPM5) and that Article I § 7(3)
                                                     
4OJ L 168, 23.6.2001, p. 25.
5OJ L 131, 28.5.2003, p. 20 .
3of the draft law obliges the OeNB to stipulate its reporting requirements to the reporting
agents (i.e. deadlines, breakdown, etc.) in line with the aforementioned Community law.
- With regard to the right to collect the relevant data, Article I § 7(2) of the draft law provides
that the OeNB is entitled to collect a wide range of detailed information from all natural andlegal persons and other institutions with regard to those operations covered by the draft lawin Article I § 5(4) and Article 7(2), which essentially cover all cross-bordertransactions/positions that could be relevant for b.o.p./i.i.p. statistics.
- Since the indirect reporting by MFIs of clients cross-border transactions/positions will be
discontinued, it is important to have a source for identifying those economic agents that arerelevant for b.o.p./i.i.p. statistics. In this respect, Article 1 §  7(6) of the draft law obligesthose institutions which maintain public registers to provide the OeNB with the informationnecessary to create and maintain the sample population for surveys and direct reporting,including the identification of potential reporting agents or alternative sources.
- The draft Law provides that infringements will be punishable by a maximum fine of
EUR 2 000.
- Finally, Article I, § 7(4) and (5) of the draft law deal with confidentiality of the statistical
data collected. The transmission of information by the OeNB to third parties must, inprinciple, be carried out so as to preserve confidentiality, i.e. due care has to be taken that theinformation remains anonymous and that the economic agents concerned cannot beidentified. However, it is noted that under the provisions of Community law, informationnecessary for the compilation of consolidated statistics by the Commission (Eurostat) or theECB can also be transmitted in a non-anonymous way.
5. More generally, the ECB welcomes Article I of the draft law with regard to the compilation of
b.o.p./i.i.p. statistics by the OeNB considered necess ary to enable the OeNB to fulfil its obligations
to contribute to the euro area b.o.p./i.i.p. statistics. The OeNB will remain the  b.o.p./i.i.p. compilerand the Foreign Exchange Act 2003 will enable it to collect all necessary direct information fromreporting agents selected on the basis of business registers and administrative information. Article Iof the draft law effectively sets out the means fo r the OeNB to update and maintain the business
register so as to ensure the high quality da ta needed for Community statistics, whilst also
minimising the reporting burden for individual respondents. The ECB welcomes the fact that theexplanatory notes to Article I, § 7 of the draft law refer to Council Regulation (EC) No 2533/98 of
23 November 1998 concerning the collection of statistical information by the ECB
6 which defines
the framework for statistics compiled by the ECB with the assistance of the national central banks.The ECB is of the opinion that the level of fines that can be imposed in case of breach of reportingobligations is adequate to constitute an effectiv e deterrent, on the understanding that it relates to
individual breaches in relation to the reporting of  each transaction/position. Finally, the ECB notes
                                                     
6OJ L 318, 27.11.1998, p. 8.
4with satisfaction that Article I of the draft law explicitly mentions Austrias Community tasks with
regard to the ECBs  and Commissions (Eurostat) requirements.
6. The ECB notes that Article I of the draft law determines in § 5 that the OeNB will be entitled, by
means of regulation, to impose restrictions on free movement of capital and payments to satisfyAustrias obligations under international law, subject to obtaining either the Federal Government orthe Federal Chancellors consent. The explanatory notes state that, as measures restricting the freemovement of capital and payments are important to foreign policy, either the Federal Governmentor the Federal Chancellors consent is required to adopt them. It is furthermore explained that thiscomplies with Community law and is substantially in line with § 33a(3) of the existing ForeignExchange Control Act. As the necessary Federal Government or Federal Chancellors consentrefers to legal acts of the OeNB intended to regulate cases falling under Articles 57(2), 59, 60(1),60(2), the first sentence of the Treaty in order to satisfy Austrias international obligations, and asthe role entrusted to the OeNB in this context does not concern ESCB-related tasks but must besubsumed under Article 14.4 of the Statute, the ECB is of the opinion that this does notcompromise the OeNBs independence.
7. The ECB, thus, welcomes the fact that Article I of the draft law is intended to make Austrian law
comply formally with Articles 56 to 60 of the Treaty by replacing the outdated Foreign ExchangeControl Act with the Foreign Exchange Act 2003. The ECB also welcomes the explicit clarificationmade in Article I, § 15(3) of the draft law that the Foreign Exchange Act 2003 respects theindependence of the OeNB in all ESCB-related matters in line with Article 108 of the Treaty.
8. The ECB takes note that Article II of the draft law will amend the Federal Act on cross-border
transfers. Article II of the draft law covers all relevant issues and aspects required by Regulation(EC) No 2560/2001 with respect to the level of charges for cross-border electronic paymenttransactions and credit transfers, the transparency of charges, and the measures for facilitatingcross-border transfers, as set out in Articles 3 to 5 of the Regulation. In particular, the draft lawintroduces penalty provisions in the Federal Act on cross-border transfers in order to ensure, bymeans of appropriate legislative measures, compliance with Article 7 of the Regulation, whichrequires that Compliance with this Regulation shall be guaranteed by effective, proportionate anddeterrent sanctions.
59. The ECB confirms that it has no objections to the competent national authorities making this
opinion publicly available at their discretion. This  opinion will be published on the ECBs website
six months after the date of its adoption.
Done at Frankfurt am Main on 5 June 2003.
The President of the ECB
[signed]
Willem F. Duisenberg