Opinion of the European Central Bank of 6 October 2021 on a law re-enacting the Federal Law on the establishment of a Fiscal Advisory Council and establishing a Productivity Board (CON/2021/29)
Date: 2021-10-06
Institutions: European Central Bank
Subjects: legal basis

EN 

ECB-PUBLIC 

OPINION OF THE EUROPEAN CENTRAL BANK 

of 6 October 2021 

on a law re-enacting the Federal Law on the establishment of a Fiscal Advisory Council and 

establishing a Productivity Board  

(CON/2021/29) 

Introduction and legal basis 

On 23 August 2021 the European Central Bank (ECB) received a request from the Austrian Federal Ministry 

of  Finance  for  an  opinion  on  a  draft  law  re-enacting  the  Federal  Law  on  the  establishment  of  a  Fiscal 

Advisory Council and establishing a Productivity Board (hereinafter the ‘draft law’) 1. 

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/EC2, as 

the draft law relates to the Oesterreichische Nationalbank (OeNB). 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 replicates, with minor adjustments, the existing tasks of the Fiscal Advisory Council, 

which  principally  comprise  assessing  the  current  and  future  fiscal  situation  and  analysing  the 

economic  effects  of  financial  operations  in  connection  with  the  financial  debt  related  to  public 

budgets. In the future, the Fiscal Advisory Council will also analyse the quality of macroeconomic 

and budgetary forecasts on a regular basis. 

1.2 

The draft law also establishes a Productivity Board in accordance with Council Recommendation 

2016/C 349/01 3. The Productivity Board’s primary task is to diagnose and analyse developments 

in productivity and competitiveness in Austria. It will also be entrusted with conducting independent 

analyses of the challenges that exist and the possible measures that may be taken in the areas of 

productivity  and  competitiveness,  and  with  exchanging  expertise  and  best  practices  with  similar 

institutions. In addition to analytical activities, the Productivity Board is to submit recommendations 

to  the  Federal  Minister  for  Digital  and  Economic  Affairs  and  to  prepare  reports  on  these 

recommendations which the Federal Minister is required to submit to the National Council, the lower 

house of the Austrian Parliament. 

1 

2 

3  

Bundesgesetz, mit dem das Bundesgesetz über die Errichtung des Fiskalrats neu erlassen und ein Produktivitätsrat 
eingerichtet wird (Fiskalratsanpassungsgesetz 2021). 

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). 
Council Recommendation 2016/C 349/01 of 20 September 2016 on the establishment of National Productivity Boards 
(OJ C 349, 24.9.2016, p. 1).   

 
 
 
 
 
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1.3 

The  explanatory  memorandum  accompanying  the  draft  law  states  that  Recommendation 

2016/C 349/01  leaves  it  to  the  Member  States  to  transfer  the  tasks  of  a  productivity  board  or 

committee  to  an  appropriate  existing  institution  or  to  create  a  new  one.  For  reasons  of 

administrative efficiency and in order to exploit synergies, the Productivity Board in Austria is to be 

organisationally co-supervised by the Secretariat of the Fiscal Advisory Council; while for reasons 

of resource efficiency and, again, in order to exploit synergies, the Board is to be kept small and 

the President of the Fiscal Advisory Council will act as its Chair. The Fiscal Advisory Council is to 

be composed of 15 persons and the Productivity Board of five persons.  

1.4 

As far as the tasks of the OeNB with respect to the Fiscal Advisory Council and the Productivity 

Board are concerned, the draft law requires the OeNB to provide the necessary staff and equipment 

to  carry  out  scientific  analyses  for  the  Fiscal  Advisory  Council  and  the  Productivity  Board. 

Furthermore, the draft law provides that the President of the Fiscal Advisory Council, who also acts 

as the Chair of the Productivity Board, is to receive remuneration for his or her activities and the 

reimbursement  of  travel  expenses  incurred  in  the  performance  of  his  or  her  duties.  The 

remuneration to be paid shall be determined by the Federal Minister for Finance after consulting 

the  OeNB.  The  ECB  understands  from  the  explanatory  memorandum  that  the  OeNB  shall  be 

responsible for paying such remuneration. The costs incurred by the OeNB as result of the draft 

law shall be borne by the Austrian Federation up to an amount of EUR 200,000 per year. For this 

purpose, the OeNB shall reduce the payment of the Austrian Federation’s share of the net profit 

pursuant to Section 69(3) of the Law on the Oesterreichische Nationalbank 4 (hereinafter the ‘Law 

on the OeNB’) accordingly. If the net profit is insufficient, costs up to EUR 200,000 shall be borne 

directly  by  the  Austrian  Federation.  This  regime  is  to  be  applied  for  the  first  time  for  the  2021 

financial year, on a pro rata temporary basis with regard to that year. 

2. 

Conferral of new tasks on the OeNB in relation to the Productivity Board 

2.1 

The  draft  law  confers  new  tasks  on  the  OeNB,  namely  carrying  out  scientific  analyses  for  the 

Productivity Board. While the OeNB carries out scientific analyses for the Fiscal Advisory Council 

for many years and must provide the necessary staff and equipment to do so, the draft law newly 

establishes the Productivity Board. Therefore, the task of the OeNB to carry out scientific analyses 

for the Productivity Board is a genuinely new task of the OeNB. The ECB underlines that, in the 

context of a proposed conferral of new tasks on a national central bank (NCB) in the  European 

System of Central Banks (ESCB), it is necessary to assess such a conferral against the prohibition 

on  monetary  financing  under  Article  123  of  the  Treaty.  For  the  purposes  of  that  prohibition, 

Article 1(1)(b)(ii) of Council Regulation (EC) No 3603/935 defines ‘other type of credit facility’, inter 

alia, as ‘any financing of the public sector’s obligations vis-à-vis third parties’.  

2.2 

Ensuring that Member States implement a sound budgetary policy is one of the key objectives of 

the monetary financing prohibition6. Therefore, the task of financing measures, which are normally 

4 
5  

6  

Bundesgesetz über die Oesterreichische Nationalbank, BGBl. Nr. 50/1984 as amended by BGBl. I Nr. 61/2018. 

Council Regulation (EC) No 3603/93 of 13 December 1993 specifying definitions for the application of the prohibitions 
referred to in Articles 104 and 104b(1) of the Treaty (OJ L 332, 31.12.1993, p. 1). 
Article 123 of the Treaty also serves the objective of maintaining price stability and reinforces central bank independ-
ence. 

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the responsibility of the Member States, and which are financed from their budgetary sources rather 

than  by  the  NCBs,  must  not  be  entrusted  to  NCBs.  To  decide  what  constitutes  financing  of  the 

public sector’s obligations vis-à-vis third parties, which can be translated as the provision of central 

bank financing outside the scope of central bank tasks, it is necessary to carry out, on a case-by-

case basis, an assessment of whether the task to be undertaken by an NCB is a central bank task 

or a government task, i.e. a task within the responsibility of the Member States.  

2.3 

As part of its discretion in the exercise of its duty, on the basis of Article 271(d) of the Treaty and 

Article 35.6 of the Statute of the European System of Central Banks and of the European Central 

Bank (hereinafter the ‘Statute of the ESCB’), to ensure that NCBs honour the obligations laid down 

by the Treaty, the Governing Council has endorsed safeguards of that kind in the form of criteria 

for determining what may be seen as falling within the scope of a public sector’s obligation within 

the  meaning  of  Article  1(1)(b)(ii)  of  Regulation  (EC)  No  3603/93  or,  in  other  words,  constitute  a 

government task as follows:  

First, the systematic categorisation of tasks assigned to NCBs as central banking or government 

tasks applies to genuinely new tasks that did not exist in the past or did not form an integral part of 

the central banking tasks already assigned to the NCB in the past. In recognition of the different 

Member States’ legal frameworks, central banking traditions and national set-ups, the tasks cur-

rently discharged by an NCB as central banking tasks are not reviewed and recategorised but may 

be reassessed if they are subject to legislative amendments of substance7. 

Second central bank tasks are in particular those tasks that are related to the tasks that have been 

conferred upon the ECB and the NCBs by the Treaty and the Statute of the ESCB. These tasks 

are mainly defined in Article 127(2), (5) and (6) and Article 128(1) of the Treaty, as well as Article 22 

and Article 25.1 of the Statute of the ESCB.  

Third,  as  Article 14.4 of the Statute  of the ESCB allows NCBs  to  perform ‘other functions’,  new 

tasks, i.e. tasks that are not related to tasks that have been conferred upon the ECB and the NCBs, 

are not precluded per se. However, new tasks that are undertaken by an NCB and which are atyp-

ical of NCB tasks or which are clearly discharged on behalf of and in the exclusive interest of the 

government or of other public sector entities should be considered government tasks.  

Fourth, an important criterion for qualifying a new task as atypical of an NCB task or as being clearly 

discharged on behalf of and in the exclusive interest of the government or other public sector enti-

ties is the impact of the task on the institutional, financial and personal independence of that NCB.  

In particular, the following aspects should be taken into account:  

(a)  whether the performance of the new task creates conflicts of interest with existing central bank 

tasks which are not adequately addressed and does not necessarily complement those exist-

ing central bank tasks. If a conflict of interest arises between existing and new tasks, sufficient 

safeguards to mitigate that conflict should be in place. The complementarity between a new 

task and the existing central bank tasks should not be interpreted broadly, so as to lead to the 

creation  of  an  indefinite  chain  of  ancillary  tasks.  Such  complementarity  should  also  be 

7  

See paragraph 2.2.1 of CON/2015/21 and paragraph 2.3.1 of CON/2015/22. All ECB opinions are published on EUR-
Lex. 

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examined in relation to the financing of those tasks; 

(b)  whether without new financial resources the performance of the new task is disproportionate 

to the NCB’s financial or organisational capacity and may have a negative impact on the ca-

pacity to perform properly the existing central bank tasks; 

(c)  whether the performance of the new task fits into the institutional set-up of the NCB in the light 

of central bank independence and accountability considerations; 

(d)  whether the performance of the new task harbours substantial financial risks; 

whether the performance of the new task exposes the members of the NCB decision-making bodies 

to  political  risks  which  are  disproportionate  and  may  also  have  an  impact  on  their  personal 

independence and, in particular, on  the  guarantee of  term of office set  out  in Article 14.2 of the 

Statute of the ESCB. 

2.4 

Assessment of the conferral of new tasks on the OeNB in relation to the Productivity Board 

On the basis of the criteria set out above, the following paragraphs assess whether the OeNB’s 

new tasks are in line with the monetary financing prohibition. 

2.4.1  Tasks related to the tasks conferred upon the ESCB and the Eurosystem by the Treaty and the 

Statute of the ESCB and the ECB 

The task of carrying out scientific analyses for the Productivity Board is indirectly linked to the tasks 

conferred upon the ESCB and the Eurosystem by the Treaty and the Statute of the ESCB insofar 

as  the  ECB  and  the  NCBs  closely  monitor  and  analyse  both  fiscal  and  structural  economic 

developments in euro area Member States in order to effectively exercise the tasks conferred upon 

the ESCB and the Eurosystem. However, they only do so in relation to the tasks conferred upon 

the ESCB and the Eurosystem, not the tasks of public entities such as the Productivity Board. 

2.4.2  Tasks which are atypical of NCB tasks 

The  ECB  notes  that  Member  States  have  followed  different  approaches  when  implementing 

Council Recommendation 2016/C 349/01. The majority of Member States that have established 

productivity  boards  benefit  in  some  way  from  existing  institutions.  Some  Member  States  have 

established productivity boards within existing institutions and broadened the mandates of those 

institutions to carry out the envisaged tasks. Other Member States have created new bodies, which 

typically rely on support from an existing structure such as a ministerial department or a research 

institute8. However, Austria is the only Member State to have created a new productivity board that 

relies on its NCB for the provision of scientific analyses. For that reason, the new task conferred on 

the OeNB is atypical of central bank tasks.  

2.4.3  Extent  to  which  the  new  tasks  are  performed  on  behalf  of  and  in  the  exclusive  interest  of  the 

government or of other public entities 

While the ECB understands that carrying out scientific analyses for the Productivity Board might 

create useful inputs for the OeNB’s own scientific analyses, it nevertheless notes that the new task 

for the provision of scientific analyses to the Productivity Board is performed on behalf of this public 

8  

See Report from the Commission to the Council, Progress report on the implementation of the Council Recommenda-
tion of 20 September 2016 on the establishment of National Productivity Boards, COM(2019)152 final. 

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entity and for the benefit of the Federal Minister for Digital and Economic Affairs.  

2.4.4  Extent to which the performance of the new tasks creates conflicts of interest with existing central 

bank tasks 

In  common  with  other  central  banks,  the  OeNB  closely  monitors  and  analyses  both  fiscal  and 

structural economic developments in euro area Member States in order to effectively exercise the 

tasks conferred upon the ESCB and the Eurosystem. From this perspective, the OeNB’s provision 

of scientific analyses for the Productivity Board carries synergies with its central bank tasks, and 

will enhance the OeNB’s level of expertise. However, as repeatedly emphasised by the ECB, an 

NCB’s role in monitoring and analysing economic, fiscal and structural developments should not 

go beyond activities that result from or are linked – directly or indirectly – to the discharge of their 

monetary policy and central banking mandate9. 

2.4.5  Extent to which the performance of the new tasks is disproportionate to the OeNB’s financial and 

organisational capacity 

2.4.5.1  The principle of financial independence requires that the Member States may not put their NCBs in 

a  position  where  they  have  insufficient  financial  resources  to  carry  out  their  ESCB-related  and 

national tasks, both from an operational and financial perspective. Furthermore, when allocating 

specific non-ESCB-related tasks to the NCBs, additional personnel and financial resources must 

also be allocated so that these tasks may be carried out in a manner that will not affect the NCBs’ 

operational or financial capacity to perform their ESCB-related tasks 10.  

2.4.5.2  The draft law entrusts the OeNB with the potentially resource-intensive task of carrying out scientific 

analyses. The ECB understands from the explanatory memorandum that the OeNB will also pay 

the remuneration of the Chair of the Productivity Board, who is also to act as President of the Fiscal 

Advisory  Council.  Furthermore,  the  OeNB  will  reimburse  costs  incurred  by  members  of  the 

Productivity Board. In this regard, the ECB notes that Section 4(12) of the draft law states that the 

costs incurred by the OeNB as a result of the draft law shall be borne by the Austrian Federation 

up to an amount of EUR 200,000. However, the draft law does not state that the Austrian Federation 

is to be responsible for reimbursing the OeNB in respect of the costs related to its new tasks for 

any amount above EUR 200,000. The ECB understands that the actual annual costs are likely to 

be considerably in excess of EUR 200,000. While the ECB understands that the new task is not 

disproportionate to the OeNB’s financial and organisational capacity, it cannot be entirely excluded 

that the costs for the Productivity Board, in connection with the costs for the Fiscal Advisory Board, 

might have a negative impact on the OeNB’s financial resources. 

2.4.6  Extent to which the performance of the new tasks is aligned with the OeNB’s institutional set-up in 

the light of central bank independence and accountability considerations 

The performance of the OeNB’s new tasks under the draft law appears to be consistent with its 

institutional set-up and seems not to raise any issues in terms of central bank independence and 

accountability considerations.  

9  

10  

See  paragraph  5.5  of  Opinion  CON/2013/90,  paragraph  5.5  of  Opinion  CON/2013/91,  paragraph  7.1  of  Opinion 
CON/2014/30 and paragraph 5.2.1 of Opinion CON/2020/13. 
See, for example, paragraph 3.1.2 of Opinion CON/2016/6.  

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2.4.7  Extent to which the performance of the new tasks entails substantial financial risks 

The performance of the new tasks does not seem to entail substantial financial risks for the OeNB. 

In the ECB’s view, it is unlikely that carrying out scientific analyses for the Productivity Board will 

lead to damages for which the OeNB may potentially be held liable.  

2.4.8  Extent  to  which  the  performance  of  the  new  tasks  exposes  members  of  the  OeNB’s  decision-

making bodies to disproportionate political risks and impacts on their personal independence 

The performance of the new tasks does not appear to expose the members of the OeNB’s decision-

making  bodies  to  disproportionate  political  risks  or  to  impact  their  personal  independence. 

However, it cannot be entirely excluded that the OeNB and/or the members of its decision-making 

bodies might be exposed to reputational risks in the performance of the new tasks. 

2.5 

Conclusion 

2.5.1  The OeNB’s new tasks in relation to the Productivity Board are not related to the tasks conferred 

upon the  ESCB and the Eurosystem by the Treaty and the  Statute  of the  ESCB. Moreover, the 

tasks in connection with the Productivity Board are atypical of central bank tasks. Austria is the only 

Member State implementing Recommendation 2016/C 349/01 that has created a new body which 

relies  on  its  NCB  for  the  provision  scientific  analyses.  To  ensure  compliance  with  the  monetary 

financing prohibition, it will be necessary to ensure that the new tasks in relation to the Productivity 

Board are fully and adequately remunerated.  

2.5.2 

In this respect, the draft law raises two concerns. First, the ECB understands from the wording of 

the  draft  law  that  the  Austrian  Federation  will  bear  costs  up  to  a  maximum  annual  limit  of 

EUR 200,000 in any event and that it will only bear such costs directly if the OeNB’s net profit is 

insufficient  to  cover  an  amount  of  up  to  EUR  200,000.  In  order  to  comply  with  the  monetary 

financing  prohibition,  it  will  be  necessary  to  ensure  that  all  costs  of  the  OeNB  related  to  the 

performance  of  the  new  tasks  in  relation  to  the  Productivity  Board  are  fully  and  adequately 

remunerated. Second, the ECB understands that the OeNB is to reduce the payment of the Austrian 

Federation’s share of the net profit pursuant to Section 69(3) of the Law on the OeNB to cover its 

costs. Where the remuneration of the new tasks in relation to the Productivity Board takes place in 

the  context  of  the  distribution  of  the  OeNB’s  profits,  the  reduction  must  be  distinct  from  and 

subsequent to the OeNB’s profit disbursement in order for such financing to be regarded as being 

compliant with the monetary financing prohibition 11. In addition, profits that have been fully realised, 

accounted for and audited may be used to remunerate the new tasks in relation to the Productivity 

Board insofar as the OeNB has a distributable profit within the meaning of Section 69(3) of the Law 

on the OeNB. In this regard, the ECB understands that the OeNB’s costs are borne by the Austrian 

Federation  after  the  end  of  the  respective  financial  year,  subject  to  the  approval  of  the  annual 

financial  statements  by  the  General  Council  and  the  General  Meeting.  This  mechanism  is 

inappropriate  for  the  present  draft  law.  In  contrast  to  the  laws  on  which  the  ECB  has  opined 

previously, under the draft law the OeNB must cover ongoing costs relating to the fulfilment of its 

tasks during the financial year. The ongoing coverage of costs in advance under the draft law by 

the OeNB qualifies as granting credit facilities in favour of the Austrian Federation and accordingly 

11  

See paragraph 2.5 of Opinion CON/2021/23 and paragraph 2.1 of Opinion CON/2017/26. 

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constitutes  a  breach  of  the  monetary  financing  prohibition.  The  draft  law  should  therefore  be 

amended in order to remedy this breach. 

3. 

The OeNB’s financing of the Fiscal Advisory Council 

3.1 

The systematic categorisation of tasks assigned to NCBs as central banking or government tasks 

applies to genuinely new tasks that did not exist in the past or did not form an integral part of the 

central  banking  tasks  already  assigned  to  the  NCBs  in  the  past.  In  recognition  of  the  different 

Member  States’  legal  frameworks,  central  banking  traditions  and  national  set-ups,  the  tasks 

currently discharged by an NCB as central banking tasks are not reviewed and re-categorised, but 

may be reassessed if they are subject to legislative amendments of substance 12. Under the current 

legal framework, the OeNB’s obligations in relation to the Fiscal Advisory Council are to bear its 

costs and to provide the necessary staff and expenses, but no explicit reference is made to the 

OeNB discharging these duties with a view to carrying out scientific analyses for the Fiscal Advisory 

Council. However, the ECB understands that in practice the OeNB provides the necessary staff to 

the Fiscal Advisory Council in order to carry out such scientific analyses. The draft law now explicitly 

clarifies that the OeNB is to provide the necessary staff and equipment in order to carry out such 

scientific analyses. The ECB understands this clarification as merely expressing what was already 

implicit in the current legal framework. Accordingly, the draft law does not substantially amend the 

OeNB’s existing tasks as regards the Fiscal Advisory Council. 

3.2 

Although the draft law does not substantially amend the OeNB’s existing tasks in relation to the 

Fiscal Advisory Council, it substantially amends the existing arrangements governing the OeNB’s 

financing of the Fiscal Advisory Council. While under the current legal regime the OeNB bears the 

entirety of the Fiscal Advisory Council’s costs, in the future the costs incurred by the OeNB as a 

result of the draft law in relation to both the Fiscal Advisory Council and the Productivity Board are 

to be borne by the Austrian Federation up to an amount of EUR 200,000 per year. Furthermore, 

the draft law entitles the President of the Fiscal Advisory Council to receive remuneration which is 

to be paid by the OeNB.  

3.2.1  The systematic categorisation of tasks assigned to NCBs as central banking or government tasks 

applies to tasks that did not form an integral part of the central banking tasks already assigned to 

the  NCB  in  the  past.  The  exemption  from  reassessments  is  therefore  only  applicable  to  tasks 

currently discharged by an NCB as central banking tasks. The ECB has repeatedly emphasised 

that  the  tasks  assigned  to  independent  fiscal  institutions,  in  particular  under  Regulation  (EU) 

No 473/2013 of the European Parliament and of the Council13, are neither central banking tasks, 

nor  do  they  facilitate  the  performance  of  such  tasks,  and  that  the  government  is  exclusively 

competent  for  compliance  with  the  Treaty  on  Stability,  Coordination  and  Governance  in  the 

Economic  and  Monetary  Union  and  Regulation  (EU)  No  473/201314.  Accordingly,  the  OeNB’s 

12  
13  

14  

See paragraph 2.2.1 of Opinion CON/2015/21 and paragraph 2.3.1 of Opinion CON/2015/22. 
Regulation (EU) No 473/2013 of the European Parliament and of the Council of 21 May 2013 on common provisions 
for monitoring and assessing draft budgetary plans and ensuring the correction of excessive deficit of the Member 
States in the euro area (OJ L 140, 27.5.2013, p. 11). 
See  paragraph  2  of  Opinion  CON/2011/96,  paragraph  4.3  of  Opinion  CON/2012/105,  paragraph  5.5  of  Opinion 
CON/2013/90, paragraph 5.5 of Opinion CON/2013/91 and paragraph 7.1 of Opinion CON/2014/30. 

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existing tasks in relation to the Fiscal Advisory Council can also not be regarded as central banking 

tasks but as government tasks. In this context, it is noted that the vast majority of Member States 

have  not  assigned  to  their  NCBs  the  task  of  carrying  out  scientific  analyses  and  providing  the 

necessary staff and equipment to their independent fiscal institutions (IFIs), and neither do NCBs 

finance this task. There are three Member States (the Czech Republic, Germany and Hungary) the 

NCBs of which are represented in the IFI or in an advisory body to the IFI, albeit without conferring 

any tasks on these NCBs 15. There are three further Member States (Austria, Estonia and Slovakia) 

the NCBs of which finance IFIs16. The NCBs of two of these Member States (Estonia and Slovakia) 

are entitled to be fully compensated by their governments for expenses incurred in this respect17. 

The OeNB is currently the only NCB within the ESCB that is required to provide the necessary staff 

and to bear the costs of an IFI without any right to compensation from the respective Member State. 

While the draft law improves the situation, as it stipulates an annual compensation of the OeNB’s 

costs up to EUR 200,000, the ECB understands that the OeNB’s annual costs in respect of the 

Fiscal Advisory Council and the Productivity Board are likely to be considerably in excess of the 

EUR 200,000 threshold. 

3.2.2  The ECB has repeatedly noted that the financing by NCBs of independent fiscal institutions or of 

government  tasks  relating  to  the  monitoring  of  fiscal  developments  breaches  the  prohibition  of 

monetary financing18. To ensure compliance with the monetary financing prohibition, it will therefore 

be necessary to ensure that OeNB’s existing tasks in relation to the Fiscal Advisory Council are 

fully and adequately remunerated. In this respect, the draft law raises the same two concerns as 

are outlined above in relation to the Productivity Board (see paragraph 2.5.2 above). First, the ECB 

understands from the wording of the draft law that the Austrian Federation will bear costs up to a 

maximum annual limit of EUR 200,000 in any event and that it will only bear such costs directly if 

the OeNB’s net profit is insufficient to cover an amount of up to EUR 200,000. In order to comply 

with the monetary financing prohibition, it will be necessary to ensure that all costs of the OeNB 

related to the performance of the existing tasks in relation to the Fiscal Advisory Council are fully 

and  adequately  remunerated.  Second,  the  ECB  understands  that  the  OeNB  is  to  reduce  the 

payment of the Austrian Federation’s share of the net profit pursuant to Section 69(3) of the Law 

15  

16  

17  

18  

In the Czech Republic, one member of the Czech Fiscal Council (CFC) is proposed by the Czech National Bank (CNB). 
However, this member is only nominated by the CNB and is neither subject to any control nor takes instructions from 
the CNB. Furthermore, the respective law stipulates that this member cannot be a current or former CNB Bank Board 
member whose term of office ended in the previous three years. In Germany, the Advisory Board, an independent 
body of experts which assists the Stability Council, comprises one member from Deutsche Bundesbank. In Hungary, 
the Governor of Magyar Nemzeti Bank (MNB) is a member of the Budgetary Council. The activity of the MNB Governor 
in the work of the Budgetary Council does not affect the statutory responsibilities of the MNB.  
In Slovakia, Národná banka Slovenska (NBS) does not have the task of carrying out scientific analyses and providing 
necessary staff and equipment but has to finance the Fiscal Responsibility Board. In Estonia, Eesti Pank provides the 
Fiscal Council with the means required for the performance of its tasks, including the supply of background information, 
assistance with the Council’s technical tasks by a secretary employed by Eesti Pank and temporarily providing neces-
sary  staff.  Furthermore,  the  members  of the  Fiscal  Council are  appointed  to and  removed  from  the  Council by  the 
Supervisory Board on the proposal of the Governor of Eesti Pank, and Eesti Pank provides the Council with rooms 
and technical equipment. 

In Slovakia, according to Article 3(8) of constitutional law 493/2011, NBS is entitled to a repayment of the resources 
provided in connection with the operation of the Board from the state budget. According to the Eesti Pank Act, on the 
request of Eesti Pank, the government refunds to it any direct expenses which Eesti Pank has incurred in relation to 
the work of the Fiscal Council. 
See  paragraph  2  of  Opinion  CON/2011/96,  paragraph  6.2  of  Opinion  CON/2013/90  and  paragraph  6.2  of  Opinion 
CON/2013/91. 

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on the OeNB to cover its costs. Where the remuneration of the OeNB’s existing tasks in relation to 

the Fiscal Advisory Council takes place in the context of the distribution of the OeNB’s profits, the 

reduction must be distinct from and subsequent to the OeNB’s profit disbursement in order for such 

financing to be regarded as being compliant with the monetary financing prohibition 19. In addition, 

profits that have been fully realised, accounted for  and audited  may  be  used  to  remunerate the 

OeNB’s  existing  tasks  in  relation  to  the  Fiscal  Advisory  Council  insofar  as  the  OeNB  has  a 

distributable profit within the meaning of Section 69(3) of the Law on the OeNB. In this regard, the 

ECB understands that the OeNB’s costs are borne by the Austrian Federation after the end of the 

respective financial year, subject to the approval of the annual financial statements by the General 

Council  and  the  General  Meeting.  This  mechanism  is  inappropriate  for  the  present  draft  law.  In 

contrast to the laws on which the ECB has opined previously, under the draft law the OeNB must 

cover  ongoing  costs  relating  to  the  fulfilment  of  its  tasks  during  the  financial  year.  The  ongoing 

coverage of costs in advance under the draft law by the OeNB qualifies as granting credit facilities 

in favour of the Austrian Federation and accordingly constitutes a breach of the monetary financing 

prohibition. The draft law should therefore be amended in order to remedy this breach. 

This opinion will be published on EUR-Lex. 

Done at Frankfurt am Main, 6 October 2021. 

[signed] 

The President of the ECB 

Christine LAGARDE 

19  

See paragraph 2.5 of Opinion CON/2021/23 and paragraph 2.1 of Opinion CON/2017/26. 

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