Opinion of the European Central Bank of 3 September 2018 on the transmission of administrative data for statistical purposes (CON/2018/40)
Date: 2018-09-03
Institutions: European Central Bank
Subjects: Eurostat, Germany, banking supervision, central bank, exchange of information, statistics

EN 

ECB-PUBLIC 

OPINION OF THE EUROPEAN CENTRAL BANK 

of 3 September 2018  

on the transmission of administrative data for statistical purposes 

(CON/2018/40) 

Introduction and legal basis 

On  20  July  2018  the  European  Central  Bank  (ECB)  received  a  request  from  the  German  Federal 

Ministry  of  Economic  Affairs  and  Energy  (hereinafter  ‘the  Ministry’)  for  an  opinion  on  a  draft  law 

governing  the  statistical  use  of  administrative  data  and  the  transmission  of  detailed  information  on 

multinational  enterprise  groups 

to  statistical  authorities 

(hereinafter 

the 

‘draft 

law’).  On 

10 August 2018, the Ministry submitted to the ECB a revised version of 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  the  third  indent  of  Article 2(1)  of  Council  Decision 
98/415/EC1, as the draft law relates to the Deutsche Bundesbank (hereinafter ‘the Bundesbank’), and 

the specific tasks conferred upon the ECB concerning the prudential supervision of credit institutions 

under 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 and content of the draft law 

1.1  According to its explanatory memorandum, the draft law is intended to govern aspects of data 

exchange between authorities for two separate issues. First, the application of the EU concept 

of  ‘enterprise’  for  statistical  purposes  in  Germany  from  the  reporting  year  2018  onwards 

requires 

that  data  available  at 

the  Bundesbank  and 

the  Bundesanstalt 

für 

Finanzdienstleistungen (BaFin, the Federal Financial Supervisory Authority) can be submitted to 

the Statistisches Bundesamt (Federal Statistical Office) and the statistical offices of the Federal 

States. Second, to ensure that Germany can adequately participate in pilot studies of Eurostat 

on  statistical  data  concerning  multinational  enterprises,  provision  has  to  be  made  for  the 
exchange of detailed information at the European level.2  

1.2  The draft law obliges the Bundesbank to provide the Federal Statistical Office with the following 

data  regarding  entities  belonging 

to  economic  activity  classes  64.19-Other  monetary 

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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). 
Such  pilot  studies  will  be  carried  out  by  Eurostat  on  the  impact  of  cross-border  restructuring  and  relocation 
processes  of  multinational  enterprise  groups  on  the  quality  and  reliability  of  official  economic  and  business 
statistics. 

 
 
 
 
                                                 
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intermediation  and  64.92-Other  credit  granting  as  referred  to  in  Annex  I  of  Regulation  (EC) 
No 1893/20063:  (1)  name  and  address,  (2)  legal  form,  (3)  economic  activity,  (4)  place  and 

number  of  entry  in  the  trade  register,  (5)  Legal  Entity  Identifier  and  (6)  data  from  the  annual 

profit and loss account as well as data collected on staff.  

1.3  Furthermore,  the  Federal  Statistical  Office  is  required  by  the  draft  law  to  transmit  the  data 

received from the Bundesbank to the statistical offices of the Federal States for their respective 

field of competence. 

1.4  The draft law sets out that persons obliged to abide by confidentiality with respect to supervisory 

data  according  to  section  9  of  the  German  Banking  Act  (Kreditwesengesetz)  are  exempt from 

professional secrecy with respect to the data concerned by the draft law. Furthermore, the draft 

law  sets  out  that  the  confidentiality  obligations  arising  from  the  German  Banking  Act  with 

respect to, inter alia, Bundesbank staff members shall be applicable accordingly to personnel of 

the German statistical offices with respect to data concerned by the draft law.  

1.5  The draft law authorises the Federal Statistical Office to transmit detailed information, inter alia, 

to members of the  European  System of Central Banks (ESCB) insofar as this  is necessary  to 

verify and improve the quality of the treatment of multinational enterprise groups in the national 

accounts  and  foreign  trade  statistics  of  the  Member  States  of  the  European  Union.  Such 

detailed  information  includes  general  information  on  multinational  and  national  enterprise 

groups  as  well  as  quantitative  economic  statistics  data.  According  to  the  draft  law,  the 

authorisation for the Federal Statistical Office to transmit such data is valid until the end of 2021. 

1.6  According to the explanatory memorandum of the draft law, the Federal Statistical Office is, for 
the purposes of Article 5(1) of Regulation (EC) No 223/20094, the point of contact for Eurostat in 

statistical  matters.  As  such,  it  is  obliged  pursuant  to  Article  5(1)  of  Regulation  (EC) 
No 295/2008 5 in conjunction with Commission Regulation (EC) No 251/2009 6 to acquire certain 

data concerning structural business statistics. For the proper implementation of the EU concept 
of statistical enterprise in terms of Council Regulation (EEC) No 696/93  7, the Federal Statistical 

Office  will,  from  reporting  year  2018  onwards,  have  to  fulfil  its  coordination  function  and  send 

the required data to Eurostat. In  accordance  with  Article 5(3) of Regulation (EC) No 295/2008 

and  Article  17a(1)  of  Regulation  (EC)  No  223/2009,  national  authorities  shall  have  access  to 

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4  

5  

6  

7  

Regulation (EC) No 1893/2006 of the European Parliament and of the Council of 20 December 2006 establishing 
the statistical classification of economic activities NACE Revision 2 and amending Council Regulation (EEC) No 
3037/90 as well as certain EC Regulations on specific statistical domains (OJ L 393, 30.12.2006, p. 1).  
Regulation  (EC)  No  223/2009  of  the  European  Parliament  and  of  the  Council  of  11  March  2009  on  European 
statistics and repealing Regulation (EC, Euratom) No 1101/2008 of the European Parliament and of the Council 
on  the  transmission  of  data  subject  to  statistical  confidentiality  to  the  Statistical  Office  of  the  European 
Communities, Council Regulation (EC) No  322/97 on Community Statistics, and Council Decision 89/382/EEC, 
Euratom  establishing  a  Committee  on  the  Statistical  Programmes  of  the  European  Communities  (OJ  L  87, 
31.3.2009, p. 164). 

Regulation  (EC)  No  295/2008  of  the  European  Parliament  and  of  the  Council  of  11  March  2008  concerning 
structural business statistics (OJ L 97, 9.4.2008, p. 13). 

Commission  Regulation  (EC)  No  251/2009  of  11  March  2009  implementing  and  amending  Regulation  (EC) 
No 295/2008  of  the  European  Parliament  and  of  the  Council  as  regards  the  series  of  data  to  be  produced  for 
structural  business  statistics  and  the  adaptations  necessary  after  the  revision  of  the  statistical  classification  of 
products by activity (CPA) (OJ L 86, 31.3.2009, p. 170). 
Council Regulation (EEC) No 696/93 of 15 March 1993 on the statistical units for the observation and analysis of 
the production system in the Community (OJ L 76, 30.3.1993, p. 1). 

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and  use  available  administrative  data  in  order  to  reduce  response  burdens.  Therefore  the 

Federal Statistical Office should draw on available data from the Bundesbank. 

1.7  According  to  the  explanatory  memorandum  accompanying  the  draft  law,  the  provisions  of  the 
draft law are compatible with Directive 2013/36/EU 8 (hereinafter ‘CRD IV’). The sharing of data 

by the Bundesbank with the Federal Statistical Office is required to comply with the EU law on 

statistics referred to above. Since these EU laws on statistics have equal standing with CRD IV, 

extending the grounds to share confidential supervisory data is justified.   

2. 

Disclosure of supervisory data to the statistical offices  

2.1  The ECB understands that the draft law effectively requires the Bundesbank to disclose data it 

has collected in the performance of its supervisory function.  

2.2 

It  is  questionable  whether  and  to  what  extent  the  data  submitted  by  the  Bundesbank  to  the 

statistical offices under the draft law indeed concerns confidential information in terms of CRD 

IV.  As  the  Court  of  Justice  of  the  European  Union  has  ruled  with  respect  to  Article  54  of 
Directive  2004/39/EC9,  not  all  information  communicated  to  a  competent  supervisory  authority 
unconditionally  constitutes  confidential  information.10  The  information  to  be  made  available  in 

accordance  with  the  draft  law  may  indeed  be  publicly  available.  Taking  this  into  account,  the 

impact of the draft law on confidential supervisory data may be further clarified in this regard. 

2.3 

Insofar as the draft law concerns confidential supervisory data according to Title VII, Chapter 1, 

Section II of CRD IV, it is noted that Articles 53 to 62 of CRD IV set out conditions under which 

confidential  supervisory  information  may  be  shared  with  third  parties,  and  refer  to  specific 

permitted recipients in this respect.  

2.4  The ECB takes note  of the position reflected  in the explanatory memorandum of the draft  law 

that the Federal Statistical Office, in its capacity as the point of contact for Eurostat, is obliged to 

acquire the necessary data on structural  business statistics. The ECB  also acknowledges that 

according  to  Regulation  (EC)  No  295/2008  and  Regulation  (EC)  No  223/2009  the  Federal 

Statistical Office shall have the right to have access to existing administrative records in order to 

reduce the response burden, and that administrative data be used to meet the requirements of 

the Regulation.  

2.5  However, the ECB takes note that Title VII, Chapter 1, Section II of CRD IV, which is a part of 

the Single Rulebook and forms the specific legal regime applicable to the competent authorities, 

explicitly sets out  various grounds permitting the competent authorities to disclose confidential 

supervisory information, none of which refer to the disclosure for the purposes of the draft law, 

i.e.  disclosure  for  statistical  purposes.  The  justification  of  the  draft  law  does  not  address  this 

8  

9  

10 

Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 on access to the activity of 
credit  institutions  and  the  prudential  supervision  of  credit  institutions  and  investment  firms,  amending  Directive 
2002/87/EC and repealing Directives 2006/48/EC and 2006/49/EC (OJ L 176, 27.6.2013, p. 338).  

Directive  2004/39/EC  of  the  European  Parliament  and  of  the  Council  of  21  April  2004  on  markets  in  financial 
instruments amending Council Directives 85/611/EEC and 93/6/EEC and Directive 2000/12/EC of the European 
Parliament and of the Council and repealing Council Directive 93/22/EEC (OJ L 145, 30.4.2004, p. 1).  
Bundesanstalt für Finanzdienstleistungsaufsicht v Ewald Baumeister, C-15/16, ECLI:EU:C:2018:464).  

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issue  in  detail  but  refers  to  the  concept  of  access  to  administrative  records  for  statistical 

purposes.  

2.6  Considering that the definition of ‘administrative data’ is not stipulated in the draft law, making it 

difficult  to  define  ex  ante  which  type  of  data  could  be  specified  by  means  of  decree  of  the 

Federal  Government  as  additional  data  on  economic  entities  to  be  transmitted  by  the 

Bundesbank,  it  should  be  considered  whether  the  authorisation  may  concern  confidential 

supervisory data.  

2.7 

In  addition,  the  ECB  expects  the  Federal  Government  to  consult  the  ECB  in  accordance  with 

Article  127(4)  of  the  Treaty  before  adopting  a  decree  under  the  draft  law  that  would  require 

submission of additional data linked to the ECB’s competence.  

3. 

Submission of statistical data to the ESCB 

The  ECB  welcomes  the  provision  of  a  temporary  basis  for  the  Federal  Statistical  Office  to  share 

statistical data with the members of the ESCB for the purpose of verifying and improving the quality of 

the treatment of multinational enterprise groups in the national accounts and foreign trade statistics of 

the Member States.  

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

Done at Frankfurt am Main, 3 September 2018. 

[signed] 

The President of the ECB 

Mario DRAGHI 

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