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)
Date: 2003-06-05
Institutions: European Central Bank
Subjects: Austria, foreign currency, international payment, intra-EU payment, national law, payment system, statistics

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 Foreign

Exchange Control Act of 1946 (Devisengesetz) and 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 Council Decision No 415/98/EC of 29 June 1998 on the

consultation  of  the  European  Central  Bank  by  national  authorities  regarding  draft  legislative
provisions1,  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  it

with the Foreign Exchange Act 2003, (ii) conferring rights and obligations on the Oesterreichische

Nationalbank  (OeNB)  concerning  the  collection,  compilation  and  distribution  of  balance  of

payments  statistics,  and  (iii) implementing  penalty  provisions  in the  Federal  Act on  cross  border

transfers in accordance with Council Regulation (EC) No 2560/2001  of the  European  Parliament
and  of  the  Council  on  cross-border  payments  in  euro2.  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

1
2
3

OJ L 189, 3.7.1998, p. 42.
OJ L 344, 28.12.2001, p. 13.
OJ L 125, 19.5.1999, p. 34.

                                                     
Control 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 particular

the introduction of the euro. The current position is that the principle of free movement of capital in

Articles  56  to  60  of  the  Treaty  has  substantially  been  achieved  in  Austria  by  means  of  OeNB

regulations.  However,  the  existing  Foreign  Exchange  Control  Law  itself  is  still  based  on  the

principle 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 been

formally  carried  out  in  the  Foreign  Exchange  Control  Law.  Finally,  Article  I  of  the  draft  law

contains  provisions  conferring  rights  and  obligations  on  the  OeNB  regarding  the  balance  of

payments 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-border

transfers in order to meet the requirement to comply with Regulation (EC) No 2560/2001. To this

end,  Article  II  of  the  draft  law  inserts  penalty  provisions  into  the  Federal  Act  on  cross-border

transfers.

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.  These

provisions are of particular importance in view of the fact that Austria plans to change its current

data collection system, which is at present largely based on indirect reporting by monetary financial

institutions (MFIs) on own transactions and positions and also on behalf of their clients, to a system

largely  based  on  direct  reporting  by  economic  agents  (including  MFIs)  of  their  transactions  and

positions in  relation  to  non-resident counterparts.  In  particular, the  ECB  welcomes  the  following

provisions.

- 

Under  Article  I  §  7(1)  of  the  draft  law,  the  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  those

b.o.p./i.i.p. statistics required by Community law. As explained in the explanatory notes to

the  draft  law,  Community  law  imposes  an  obligation  in  relation  to  the  ECB  and  the

Commission  (Eurostat).  In  this  context,  the  explanatory  notes  refer  to  the  Guideline

ECB/2000/4 of 11 May 2000 on the statistical reporting requirements of the ECB in the field

of  balance  of  payments  statistics,  the  international  reserves  template  and  international
investment  position  statistics4.  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 reporting

position statistics, and the international reserves template

requirements  of  the  ECB  in  the  field  of  balance  of  payments  and  international  investment
5. As a result, the reference should
be  corrected  in  the  explanatory  memorandum.  Furthermore,  the  ECB  notes  that  the

explanatory  notes  to  the  draft  law  recommend  the  use  of  the  international  standards  laid

down in the IMF Balance of Payments Manual, 5th edition (BPM5) and that Article I § 7(3)

4
5

OJ L 168, 23.6.2001, p. 25.
OJ L 131, 28.5.2003, p. 20.

2

                                                     
of  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 and

legal persons and other institutions with regard to those operations covered by the draft law

in  Article  I  §  5(4)  and  Article  7(2),  which  essentially  cover  all  cross-border

transactions/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 are

relevant  for  b.o.p./i.i.p.  statistics.  In  this  respect,  Article  1  §   7(6)  of  the  draft  law  obliges

those institutions which maintain public registers to provide the OeNB with the information

necessary  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,  in

principle, be carried out so as to preserve confidentiality, i.e. due care has to be taken that the

information  remains  anonymous  and  that  the  economic  agents  concerned  cannot  be

identified.  However,  it  is  noted  that  under  the  provisions  of  Community  law,  information

necessary for the compilation of consolidated statistics by the Commission (Eurostat) or the

ECB 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 necessary 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. compiler

and the Foreign Exchange Act 2003 will enable it to collect all necessary direct information from

reporting agents selected on the basis of business registers and administrative information. Article I

of the draft law effectively sets out the means for the OeNB to update and maintain the business

register  so  as  to  ensure  the  high  quality  data  needed  for  Community  statistics,  whilst  also

minimising the reporting burden for individual respondents. The ECB welcomes the fact that the

explanatory 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 ECB6 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 reporting

obligations  is  adequate  to  constitute an  effective  deterrent,  on the  understanding  that  it  relates  to

individual breaches in relation to the reporting of each transaction/position. Finally, the ECB notes

6

OJ L 318, 27.11.1998, p. 8.

3

                                                     
with 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  satisfy

Austria’s obligations under international law, subject to obtaining either the Federal Government or

the Federal Chancellor’s consent. The explanatory notes state that, as measures restricting the free

movement of capital and payments are important to foreign policy, either the Federal Government

or the Federal Chancellor’s consent is required to adopt them. It is furthermore explained that this

complies  with  Community  law  and  is  substantially  in  line  with  §  33a(3)  of  the  existing  Foreign

Exchange  Control  Act.  As  the  necessary  Federal  Government  or  Federal  Chancellor’s  consent

refers 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 as

the role  entrusted  to the  OeNB  in this  context  does  not  concern  ESCB-related  tasks  but  must  be

subsumed  under  Article  14.4  of  the  Statute,  the  ECB  is  of  the  opinion  that  this  does  not

compromise 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 Exchange

Control Act with the Foreign Exchange Act 2003. The ECB also welcomes the explicit clarification

made  in  Article  I,  §  15(3)  of  the  draft  law  that  the  Foreign  Exchange  Act  2003  respects  the

independence 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  payment

transactions  and  credit  transfers,  the  transparency  of  charges,  and  the  measures  for  facilitating

cross-border  transfers, as  set out in  Articles  3 to  5  of the  Regulation.  In  particular,  the  draft  law

introduces  penalty  provisions  in  the  Federal  Act  on  cross-border  transfers  in  order  to  ensure,  by

means  of  appropriate  legislative  measures,  compliance  with  Article  7  of  the  Regulation,  which

requires that “Compliance with this Regulation shall be guaranteed by effective, proportionate and

deterrent sanctions”.

4

9. 

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

5