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)
Date: 2014-12-22
Institutions: European Central Bank
Subjects: Austria, access to information, central bank, national law, payment system, pension scheme, retirement conditions, statistics

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 Austrian Ministry 

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 (hereinafter 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  the  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 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  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  

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). 

See Opinion CON/2014/75. All ECB documents are published on the ECB’s website at www.ecb.europa.eu. 

 
 
 
                                                 
ECB-PUBLIC 

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  requested  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  systems  as  well  as  any  changes  in  this  regard.  The  draft  law 

determines  that  breaches  of  these  new  notification  requirements  will  be  sanctioned  with 

administrative penalties of up to EUR 2000. 

1.5 

In addition, the  draft law follows  up  on  a Law on the  limitation of special pension arrangements3, 

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.  It  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 allocate 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, should the pension reserve exceed the necessary capital on a sustained basis, the draft 

law  suggests  to  partly  release  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 special pension arrangements, BGBl I No 46/2014; see Opinion CON/2014/35. 

2 

 
                                                 
ECB-PUBLIC 

Austria’s current indicator 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 CON/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,  in 

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  profits  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 

covered  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. 

3 

 
 
                                                 
ECB-PUBLIC 

3.5   Member States may also not prevent NCBs from building up their reserve capital to a level which is 

necessary for a member of the European System of Central 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  opinions 5  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 effective 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  (partial) 

dissolution of the pension reserve may occur if sufficient funds are held in the pension reserve in 

compliance 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 envisaged 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  pension  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. 

4 

                                                 
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. 

ECB-PUBLIC 

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 

5