Opinion of the European Central Bank of 13 November 2015 on measures accompanying the Single Resolution Mechanism Regulation (CON/2015/47)
Date: 2015-11-13
Institutions: European Central Bank
Subjects: Austria, EU banking union, company in difficulties, financial institution, financial intervention, financial stability, national law

EN 

ECB-PUBLIC 

OPINION OF THE EUROPEAN CENTRAL BANK 

of 13 November 2015 

on measures accompanying the Single Resolution Mechanism Regulation  

(CON/2015/47) 

Introduction and legal basis 

On  6  October  2015  the  European  Central  Bank  (ECB)  received  a  request  from  the  Austrian  Ministry  of 

Finance  (the  ‘MoF’)  for  an  opinion  on  a  draft  law  (hereinafter  the  ‘draft  law’)  adapting  national  banking 

laws, including the Law on recovery, the Law on banking, the Financial Market Authority Act, the Deposit 

Guarantee  and  Investor  Compensation  Act  and  the  National  Bank  Act  1984,  to  comply  with  the  Single 

Resolution Mechanism (SRM) and Union provisions on the Single Resolution Fund.  

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  and  sixth  indents  of  Article  2(1)  of  Council 
Decision 98/415/EC1, as the draft law relates to the Oesterreichische Nationalbank (OeNB) and to rules 

applicable  to financial  institutions insofar as they materially  influence the stability  of financial  institutions 

and  markets.  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 purpose of the draft law is to clarify the scope of application of the national banking recovery 

and resolution regime in light of Regulation (EU) No 806/2014 of the European Parliament and of 
the Council2 (hereinafter the ‘SRM Regulation’).  

1.2  The draft law provides that the national resolution authority may exercise its powers under the Law 

on  recovery  and  resolution  only  to  the  extent  that  these  powers  are  not  being  transferred  to  the 

Single Resolution Board (SRB) in connection with the SRM Regulation. In this context, the draft law 

clarifies  that  the  OeNB  may  be  involved  in  those  SRM-related  tasks  for  which  the  national 

resolution authority could to date seek its involvement. In order to ensure the effective fulfilment of 

their  relevant  tasks  under  the  SRM  Regulation  the  draft  law  provides  that  the  Austrian  Financial 

Market Authority (hereinafter the ‘FMA’), also acting as a resolution authority, and the OeNB must 

1  

2  

Council Decision 98/415/EC of 29 June 1998 on the consultation of the European Central Bank by national authori-
ties regarding draft legislative provisions (OJ L 189, 3.7.1998, p. 42). 

Regulation (EU) No  806/2014 of the European Parliament and  of the Council of 15 July  2014  establishing uniform 
rules and a uniform procedure for the resolution of credit institutions and certain investment firms in the framework of 
a Single Resolution Mechanism and a Single Resolution Fund  and amending Regulation (EU) No 1093/2010 (OJ L 
225, 30.7.2014, p. 1). 

 
 
 
 
                                                 
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collaborate closely.  

1.3  As regards the Law on recovery and resolution, the draft law introduces general investigative rights 

for  the  national  resolution  authority  within  its  area  of  responsibility.  These  investigative  powers 

comprise  the  right  to:  (a)  obtain  information  from  institutions  and  undertakings;  (b)  inspect  the 

accounts,  written  documents  and  data  storage  media  belonging  to  institutions  and  undertakings; 

(c) require  institutions  and  undertakings  to  produce  interim  accounts,  make  disclosures  and 

configure  their  audit  reports  in  a  particular  format;  and  (d)  carry  out  on-site  inspections  at  the 

premises of institutions and undertakings, or commission such inspections to be carried out by third 

parties.  According  to  the  draft  law,  the  national  resolution  authority  must  mandate  the  OeNB  to 

conduct such on-site inspections. 

1.4  The draft law3 limits the federal government’s power to seek reimbursement from the OeNB’s and 

the FMA’s executive bodies and employees with regard to any damages it has paid to third parties. 

Pursuant to the Law on the FMA, the FMA as well as its employees and executive bodies are not 

liable  towards  the  injured  party.  If  the  Federal  State  compensates  an  injured  party  for  damage 

incurred  it  is  entitled  to  seek  reimbursement  from  the  FMA’s  executive  bodies  and  employees 

under the provisions of the Law on the liability of public bodies (hereinafter   the ‘AHG’). Although 

the Federal State may have recourse, under the AHG, against the FMA’s  and OENB’s executive 
bodies  and  employees,  if  they  have  acted  with  gross  negligence  or  intentionally4,  the  draft  law 

limits  such  recourse  to  intentional  breaches  of  the  respective  executive  bodies  and  employees 

when carrying out tasks laid down in the Law on recovery and resolution, the SRM Regulation or in 

delegated  legal  acts  pursuant  to  Directive  2014/59/EU  of  the  European  Parliament  and  of  the 
Council5  or  the  SRM  Regulation.  The  ECB  understands  that  this  restriction  of  the  federal 

government’s  power  to  seek  reimbursement  has  no  impact  on  the  Federal  State’s  liability  for 

damages caused by the FMA’s executive bodies and employees in the enforcement of the federal 

acts specified under Article 2 of the Financial Market Authority Act, including the Law on recovery 

and resolution. 

1.5  The draft law also excludes Federal State liability for damages caused by the OeNB and the FMA, 

including their executive bodies and employees, when: (a) acting on an instruction from the SRB, 

(b)  preparing  or  implementing  decisions  for  the  SRB,  or  (c)  collaborating  with,  exchanging 
information with or otherwise supporting the SRB 6. The MoF argues that this statutory exclusion of 

liability is justifiable in view of the transfer of tasks to the  SRB and the  SRB’s liability  pursuant to 

Article  87  of  the  SRM  Regulation.  The  draft  law’s  explanatory  memorandum  explicitly  refers  to  a 

similar exclusion of liability for damages caused by the FMA and the OeNB in connection with their 

work  under  the  SSM  Regulation.  In  the  SSM  context,  the  national  legal  framework  excludes 

3  
4  
5  

6  

See Article 2(23) of the draft law. 
See Article 3(2) of the Law on the liability of public bodies. 

Directive 2014/59/EU of the European Parliament and of the Council of 15 May  2014 establishing a framework for 
the recovery and resolution of credit institutions and investment firms and amending Council Directive 82/891/EEC, 
and  Directives  2001/24/EC,  2002/47/EC,  2004/25/EC,  2005/56/EC,  2007/36/EC,  2011/35/EU,  2012/30/EU  and 
2013/36/EU,  and  Regulations  (EU)  No  1093/2010  and  (EU)  No  648/2012,  of  the  European  Parliament  and  of  the 
Council (OJ L 173, 12.6.2014, p. 190). 

See Art 3 no 11 and Art 4 no 1 of the draft law. 

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Federal State liability in respect of damage caused by acts of the FMA and the OeNB, including its 

executive  bodies  and  employees,  when  implementing  or  fulfilling  an  instruction  from  the  ECB, 

preparing  or  executing  ECB  decisions,  and  when  cooperating  with,  exchanging  information  with 
and providing other support to the ECB7. 

1.6  The  draft  law  provides  for the  adaptation  of  national  provisions  on  recovery  and  resolution  to  the 

SRM  Regulation,  including  rules  on  the  establishment  of  a  Single  Resolution  Fund  (SRF).  In  this 

context, the draft law also sets out how national contributions are to be charged and transferred to 

the  SRF.  The  draft  law  thus  aligns  the  Austrian  legal  framework  with  the  Intergovernmental 

Agreement  on  the  Transfer  and  Mutualisation  of  Contributions  to  the  Single  Resolution  Fund, 
Commission  Delegated  Regulation  (EU)  2015/638  and  Council 
(EU) 2015/819.  

Implementing  Regulation 

2. 

General observations 

2.1  The  ECB  takes  note  that  the  draft  law  aims  to  align  the  Austrian  national  banking  supervisory 

structure  with  the  SRM  regime  and  to  ensure  that  no  legal  obstacles  arise  under  national  law  in 

relation to the performance by the SRB, with the assistance of the national resolution authority, of 

its  banking  recovery  and  resolution  tasks  under  the  SRM  Regulation.  The  ECB  understands  that 

the rules are not intended to narrow or amend the scope of the SRM Regulation, which is directly 

applicable. 

2.2  The ECB notes that the draft provision requiring the national resolution authority to assign on-site 

inspections to the OeNB in a resolution context is not a genuinely new task conferred on the OeNB. 

Although  the  respective  provision  introduces  general  investigative  powers  for  the  national 

resolution authority, including the right to order on-site inspections, which shall be conducted by the 

OeNB, the Law on recovery and resolution already provides that the OeNB has resolution-related 

tasks similar to those assigned to it under section 79 of the Law on banking.  

3. 

Specific observations 

3.1  The ECB understands that the draft law aims to clarify the involvement of the OeNB in SRM-related 

tasks. According to the explanatory memorandum, the SRM-related tasks may be allocated to the 

OeNB regarding those subjects for which its involvement can be sought by the national resolution 

authority. However, the wording of the amended section 3(5) of the Law on recovery and resolution 

seems  ambiguous  regarding  the  scope  of  involvement  of  the  OeNB  in  SRM-related  tasks.  This 

provision  might  be  interpreted  as  determining  different  areas  of  involvement  of  the  OeNB  in  an 

7  
8  

9  

See paragraph 1.6 of Opinion CON/2014/43. 

Commission  Delegated  Regulation  EU  2015/63  of  21  October  2014  supplementing  Directive  2014/59/EU  of  the 
European  Parliament  and  of  the  Council  with  regard  to  ex  ante  contributions  to  resolution  financing  arrangements 
(OJ L 11, 17.1.2015, p. 1). 
Council Implementing Regulation (EU) 2015/81 of 19 December 2014 specifying uniform conditions of application of 
Regulation (EU) 806/2014 of the European Parliament and of the Council with regard to ex ante contributions to the 
Single Resolution Fund (OJ L 15, 22.1.2015, p.1). 

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SRM  context  compared  to  its  tasks  under  the  national  recovery  and  resolution  regime.  This  is 

because the explicitly mentioned list of subjects where the OeNB may not be involved in an SRM 

context  differs  from  the  exemptions  that  apply  in  the  national  context.  The  ECB  recommends 

amending the draft law in order to align the OeNB’s involvement in SRM-related matters with what 

is expressed in the explanatory memorandum.  

3.2  Pursuant  to  Article  87(3)  of  the  SRM  Regulation,  the  SRB  shall,  in  respect  of  non-contractual 

liability,  make  good  any  damage  caused  by  it  or  by  its  staff  in  the  performance of  their  duties,  in 

particular  their  resolution  functions,  including  acts  and  omissions  in  support  of  foreign  resolution 

proceedings.  Pursuant  to  Article  87(4)  of  the  SRM  Regulation,  the  SRB  shall  compensate  a 

national resolution authority for the damages which it has been ordered to pay by a national court, 

or which it has, in agreement with the SRB, undertaken to pay pursuant to an amicable settlement, 

which are the consequences of an act or omission committed by that national resolution authority in 

the  course  of  any  resolution  under  the  SRM  Regulation  of  the  entities  and  groups  referred  to  in 

Article 7(4)(b) and 5 of the SRM Regulation. However, that obligation shall not apply where that act 

or omission constituted an infringement of the SRM Regulation, of another provision of Union law, 

of  a  decision  of  the  SRB,  of  the  Council,  or  of  the  Commission,  committed  intentionally  or  with 

manifest and serious error of judgement. The wording of draft Article 3(7) of the Law on the  FMA 

and draft Article 79(8) of the Law on banking could be understood as effectively placing liability for 

damage  caused  by  the  acts  and  omissions  of  the  FMA  and  the  OeNB  occurring  within  the  SRM 

framework exclusively and categorically on the SRB in all cases. This could lead to an unclear legal 

situation  with the potential  of negatively  impacting on  the efficient  and effective functioning  of the 

SRM,  in  particular  having  regard  to  the  direct  applicability  of  the  SRM  Regulation.  Therefore,  it 

would be advisable to amend the draft law in order to ensure that the proposed exemptions from 

the  national  liability framework are in compliance  with Union law and  are  without prejudice to the 
allocation of liability under the SRM framework10. 

This opinion will be published on the ECB’s website. 

Done at Frankfurt am Main, 13 November 2015. 

[signed] 

The President of the ECB 

Mario DRAGHI 

10  

See  paragraph  5.2  of  Opinion  CON/2014/43.  All  ECB  opinions  are  published  on  the  ECB’s  website  at 
www.ecb.europa.eu. 

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