Opinion of the European Central Bank of 19 June 2026 on supervisory independence, prevention of conflicts of interest, notifications of material holdings and mergers and divisions, ESG risks, suitability assessments of management bodies and key function holders, and administrative penalties and periodic penalty payments (CON/2026/20)
Date: 2026-06-19
Institutions: European Central Bank
Subjects: legal basis

ECB-PUBLIC 

EN 

OPINION OF THE EUROPEAN CENTRAL BANK 

of 19 June 2026 

on supervisory independence, prevention of conflicts of interest, notifications of material 

holdings and mergers and divisions, ESG risks, suitability assessments of management 

bodies and key function holders, and administrative penalties and periodic penalty 

payments 

(CON/2026/20) 

Introduction and legal basis 

On 19 May 2026 the European Central Bank (ECB) received a request from the Austrian Ministry of Finance 

for  an  opinion  on  a  draft  law  transposing,  inter  alia,  the  amendments  to  Directive  2013/36/EU  of  the 

European Parliament and of the Council1 (hereinafter the ‘CRD’) introduced by Directive (EU) 2024/1619 

of  the  European  Parliament  and  of  the  Council2  (hereinafter  the  ‘CRD6’)  as  well  as  Directive  (EU) 

2024/2994 of the European Parliament and of the Council 3 into Austrian law (hereinafter the ‘draft law’). 

The draft law amends the Law on banking, the Law on the Financial Market Authority, the Law on savings 

banks, the Law on investment firms and the Law on credit service providers and credit purchasers.  

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 Article 2(1) of Council Decision 98/415/EC4, as the draft law relates 

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

pursuant to Article 127(6) of the Treaty. In addition, pursuant to Article 25.1 of the Statute of the European 

System of Central Banks and of the European Central Bank (hereinafter the ‘Statute of the ESCB’), the 

ECB  may  offer  advice  to,  and  be  consulted  by,  the  competent  authorities  of  the  Member  States  on  the 

implementation of Union legislation relating to the prudential supervision of credit institutions, among other 

matters. In accordance with Article 17.5, first sentence, of the Rules of Procedure of the European Central 

Bank, the Governing Council has adopted this opinion. 

1  

2  

3  

4  

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,  amending  Directive  2002/87/EC  and  repealing 
Directives 2006/48/EC and 2006/49/EC (OJ L 176, 27.6.2013, p. 338, ELI: http://data.europa.eu/eli/dir/2013/36/oj). 
Directive  (EU)  2024/1619  of  the  European  Parliament  and  of  the  Council  of  31  May  2024  amending  Directive 
2013/36/EU  as  regards  supervisory  powers,  sanctions,  third-country  branches,  and  environmental,  social  and 
governance risks (OJ L, 2024/1619, 19.6.2024, http://data.europa.eu/eli/dir/2024/1619/oj). 

Directive (EU) 2024/2994 of the European Parliament and of the Council of 27 November 2024 amending Directives 
2009/65/EC, 2013/36/EU and (EU) 2019/2034 as regards the treatment of concentration risk arising from exposures 
towards central counterparties and of counterparty risk in centrally cleared derivative transactions (OJ L, 2024/2994, 
4.12.2024, ELI: http://data.europa.eu/eli/dir/2024/2994/oj). 
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, ELI: http://data.europa.eu/eli/dec/1998/415/oj). 

 
 
 
 
 
 
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1. 

Purpose of the draft law 

1.1  The main purpose of the draft law  is to transpose  into Austrian law  the amendments  to  the CRD 

introduced  by  the  CRD6.  In  addition,  the  draft  law  includes,  inter  alia,  provisions  that  transpose 

Directive (EU) 2024/2994 into Austrian law. The draft law also contains a number of amendments 

not related to the implementation of Union directives.  

1.2 

In particular, the draft law transposes the CRD6 provisions regarding (a) the prudential framework 

for  the  internal  governance  of  credit  institutions  and  certain  investment  firms,  including  the 

assessment of the suitability of members of the management body and holders of key functions and 

the role of the Financial Market Authority (FMA) in this respect; (b) a regulatory framework applicable 

to branches established in the Union by undertakings established in a third country for the purpose 

of providing banking services there; (c) rules on material transactions planned by credit institutions 

or  (mixed)  financial  holding  companies,  namely  the  acquisition  or  disposal  of  qualifying  holdings, 

material  transfers  of  assets  and  liabilities,  and  mergers  or  divisions  involving  such  entities; 

(d) environmental, social and governance (ESG) risks; (e) administrative penalties, periodic penalty 

payments  and  other  administrative  measures;  (f)  systemic  risk  buffers;  and  (g)  supervisory  tasks 

related  to risks arising from crypto-asset  exposures  and the provision of crypto-asset services by 

amending  the  Law  on  banking5.  The  amendments  to  the  Law  on  banking  further  implement  the 

provisions of Directive (EU) 2024/2994.  

1.3  To  transpose  Article  4a  of  the  CRD  as  inserted  by  the  CRD6,  regarding  the  supervisory 

independence  of  competent  authorities,  the  draft  law  amends  the  Law  on  the  Financial  Market 

Authority 6. Further changes to the Law on the Financial Market Authority concern the exchange of 

information between authorities7. 

1.4  The draft law amends certain provisions of the Law on savings banks, mainly introducing changes 

regarding the role and renumeration of the Savings Bank Council and for the purposes of alignment 

with the Law on companies 8. 

1.5  The draft law amends the Law on investment firms in order to transpose Article 110a of the CRD as 

inserted by the CRD6 on the scope of application to investment firm groups 9. 

1.6  Finally, the draft law amends the Law on credit service providers and credit purchasers by including 

clarifications regarding the provision of information as well as amendments further aligning the text 

with Union law, in particular with Directive (EU) 2021/2167 of the European Parliament and of the 

Council10, 11. 

5  
6  

7  
8  
9  
10  

11  

See Article 1 of the draft law.  
See Article 2 of the draft law, amending Sections 5(2) and 7(3) and inserting a new Section 15a into the Law on the 
Financial Market Authority.  
See Article 2(4) of the draft law, amending Section 21(3) of the Law on the Financial Market Authority.  

Article 3 of the draft law.  
Article 4 of the draft law.  

Directive (EU) 2021/2167 of the European Parliament and of the Council of 24 November 2021 on credit servicers and 
credit purchasers and amending Directives 2008/48/EC and 2014/17/EU (OJ L 438, 8.12.201, p. 1, ELI: https://eur-
lex.europa.eu/eli/dir/2021/2167/oj).  

Article 5 of the draft law.  

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2. 

Supervisory independence and prevention of conflicts of interest  

2.1  General observations 

2.1.1  Article 19 of Council Regulation (EU) No 1024/201312 (hereinafter the ‘SSM Regulation’) stipulates 

that when carrying out the tasks conferred on it by the SSM Regulation, the ECB and the national 

competent  authorities  acting  within 

the  Single  Supervisory  Mechanism  (SSM)  must  act 

independently.  Article 31(3)  of  the  SSM  Regulation  furthermore  requires  the  ECB,  in  cooperation 

with  the  national  competent  authorities,  to:  (a)  establish  and  maintain  comprehensive  and  formal 

procedures including ethics procedures and proportionate periods to assess in advance and prevent 

possible conflicts of interest resulting from subsequent employment within two years of members of 

the Supervisory Board; and (b) provide for appropriate disclosures. Those procedures are without 

prejudice to the application of stricter national rules 13. The legal basis for those provisions of the SSM 

Regulation is Article 127(6) of the Treaty. 

2.1.2  In  view  of  this  independence  and  these  requirements  of  the  SSM  Regulation,  the  ECB  has 

established an ethics framework to ensure the independence of national competent authorities, such 

as the FMA, when assisting the ECB in carrying out the tasks conferred on it by the SSM Regulation. 

This ethics framework includes the ECB’s Code of Conduct for high-level ECB officials 14 (hereinafter 

the ‘Single Code’), which applies, among others, to the members of the Supervisory Board of the 

ECB  when  exercising  their  functions  as  members  of  a  high-level  ECB  body,  and  Guideline  (EU) 

2021/2256  of  the  European  Central  Bank  (ECB/2021/50) 15,  which  is  addressed  to  the  national 

competent authorities of the SSM and establishes ethics requirements applicable to the members of 

their  bodies  and  the  members  of  staff  of  the  national  competent  authorities.  In  view  of  the 

responsibility  of  the  ECB  for  the  effective  and  consistent  functioning  of  the  SSM16,  the  national 

competent authorities must comply with Guideline (EU) 2021/2256 (ECB/2021/50)17.  

2.1.3  In contrast to the ethics framework, which is  ultimately based on Article 127(6)  of the Treaty, the 

CRD6, including its provision on the supervisory independence of competent authorities 18, is based 

on  Article  53(1)  of  the  Treaty.  A  legal  act  based  on  this  provision  cannot  alter  the  rights  and 

obligations of the ECB and the national competent authorities when carrying out the tasks conferred 

on them by the SSM Regulation based on Article 127(6) of the Treaty. It follows from settled case-

12  

13  

14  
15  

16  
17  

18  

Council Regulation (EU) No 1024/2013 of 15 October 2013 conferring specific tasks on the European Central Bank 
concerning  policies  relating  to  the  prudential  supervision  of  credit  institutions  (OJ  L  287,  29.10.2013,  p. 63, 
ELI: http://data.europa.eu/eli/reg/2013/1024/oj). 

See  paragraph  2.4  of  Opinion  CON/2025/23,  paragraph  2.4  of  Opinion  CON/2025/27,  paragraph  2.4  of  Opinion 
CON/2025/32,  paragraph  2.4  of  Opinion  CON/2025/33,  paragraph  2.4  of  Opinion  CON/2025/36,  paragraph  2.4  of 
Opinion CON/2026/1 and paragraph 2.4 of Opinion CON/2026/2. All ECB opinions are published on EUR-Lex. 
Code of Conduct for high-level ECB officials (OJ C 478, 16.12.2022, p. 3).   

Guideline (EU) 2021/2256 of the European Central Bank of 2 November 2021 laying down the principles of the Ethics 
Framework 
(OJ  L  454,  17.12.2021,  p.  21, 
ELI: http://data.europa.eu/eli/guideline/2021/2256/oj). 
See Article 6(1) of the SSM Regulation. 

the  Single  Supervisory  Mechanism 

(ECB/2021/50) 

for 

See  paragraph  2.5  of  Opinion  CON/2025/23,  paragraph  2.5  of  Opinion  CON/2025/27,  paragraph  2.5  of  Opinion 
CON/2025/32,  paragraph  2.5  of  Opinion  CON/2025/33,  paragraph  2.5  of  Opinion  CON/2025/36,  paragraph  2.5  of 
Opinion CON/2026/1 and paragraph 2.5 of Opinion CON/2026/2. 

See Article 4a of the CRD, as inserted by Article 1, point (4), of the CRD6. 

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law  of  the  Court  of  Justice  of  the  European  Union 19  that  the  different  legal  bases,  namely  Article 

53(1) and Article 127(6) of the Treaty, cannot be combined as the legal basis for a legal act, in view 

of  the  different  procedures  involved.  In  particular,  measures  under  Article  53(1)  of  the  Treaty  are 

adopted  by  the  European  Parliament  and  the  Council,  acting  in  accordance  with  the  ordinary 

legislative procedure, and after consulting the Economic and Social Committee (and, if relevant, the 

ECB in  accordance with Articles  127(4) and  282(5) of the Treaty). By contrast,  regulations  under 

Article  127(6)  of  the  Treaty  are  adopted  by  the  Council  alone,  by  way  of  a  special  legislative 

procedure, in which the Council acts unanimously, after consulting the European Parliament and the 

ECB 20. 

2.1.4  Hence, the amendments made by the CRD6 are without prejudice to the ethics framework, which 

the ECB has established to ensure the independence of the national competent authorities in the 

context of the SSM, as both frameworks have their own scope and legal basis. The Union legislator 

acknowledged this through the CRD6’s amendments to the CRD, which provide that Article 4a(2) of 

the  CRD  is  without  prejudice  to  the  rights  and  obligations  of  the  national  competent  authorities 

pursuant to the SSM established by the SSM Regulation21. For the avoidance of doubt, the national 

legislator may wish to clarify this within the text of the draft law. From an ECB perspective, the CRD6 

provisions may nevertheless serve as guidance for establishing safeguards for the independence of 

the ECB and the national competent authorities when carrying out the tasks conferred on them by 

the SSM Regulation22. 

2.2  Specific observations  

2.2.1  The Single Code applies, inter alia, to the members of the Supervisory Board of the ECB, including 

the FMA representative, when exercising their functions as members of the Supervisory Board of the 

ECB. It also applies to persons replacing the members in meetings of the Supervisory Board in the 

performance  of  their  duties  and  responsibilities  relating  to  that  high-level  body  where  explicitly 

provided for in the Single Code. 

2.2.2  National competent authorities, including the FMA, are required to take the necessary measures to 

implement and comply with Guideline (EU) 2021/2256 and must inform the ECB of any obstacles 

that national law poses to their implementation.  

2.2.3  Regarding independence, the draft law highlights that the existing legal framework already provides 

that the FMA is not bound by any instructions in the performance of its duties 23. The ECB notes that 

19  

20  

21  

22  

23  

See  judgment  of  the  Court  of  Justice  of  29  April  2004,  Commission  v  Council,  C-338/01,  ECLI:EU:C:2004:253, 
paragraphs 57 and 58; and judgment of the Court of Justice of 10 January 2006, Commission v Parliament and Council, 
C-178/03, ECLI:EU:C:2006:4, paragraphs 43 to 60. 

See also paragraph 2.6.2 of Opinion CON/2024/21 of the European Central Bank of 21 June 2024 on a proposal for 
a regulation of the European Parliament and of the Council as regards certain reporting requirements in the fields of 
financial 
ELI: 
http://data.europa.eu/eli/C/2024/5048/oj).  

C/2024/5048, 

investment 

16.8.2024, 

services 

support 

and 

(OJ 

C, 

See  Article 4a(2),  fourth subparagraph, of  Directive 2013/36/EU,  as  inserted by  the  CRD6.  This acknowledgement 
refers directly to the dismissal requirements included in Article 4(2), second subparagraph, of the CRD6. 

See  paragraph  2.7  of  Opinion  CON/2025/23,  paragraph  2.7  of  Opinion  CON/2025/27,  paragraph  2.7  of  Opinion 
CON/2025/32, paragraph 2.7 of Opinion CON/2025/33, paragraph 2.7 of Opinion CON/2025/36 and paragraph 2.7 of 
Opinion CON/2026/2. 

See Section 1(1) of the Law on the Financial Market Authority. 

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the  Single  Code 24  and  Guideline  (EU)  2021/225625  contain  more  granular  provisions  regarding 

independence, in particular highlighting that members of staff and members of their bodies should 

act honestly,  independently and  impartially. The CRD contains similar wording as inserted by the 

CRD626. The ECB highlights that the draft law should be without prejudice to the Single Code and 

Guideline 2021/2256 in this respect. 

2.2.4  Guideline (EU) 2021/2256 requires national competent authorities to have mechanisms in place to 

assess and avoid possible conflicts of interest arising from post-employment occupational activities 

undertaken by their members of staff and the members of their bodies, including appropriate cooling-

off periods 27. In addition, the Single Code provides for cooling-off periods for members of the ECB’s 

Supervisory Board of one year (for gainful occupational activity with a significant or less significant 

credit institution) or six months (for gainful occupational activity with any other financial institution or 

with any entity engaged in lobbying in relation to the ECB, or consultancy and/or advocacy for the 

ECB or for any financial institution). With regard to gainful occupational activity with a significant or 

less significant credit institution, an extension of the cooling-off period up to a maximum of two years 

is  possible  where  the  possibility  of  conflicts  of  interest  resulting  from  such  gainful  occupational 

activities  so  requires 28.  The  ECB  notes  that  the  draft  law  provides  the  legal  basis  for  cooling-off 

periods for the FMA’s Executive Board members 29 and members of staff. This includes a cooling-off 

period in the event of being hired or performing professional services for credit institutions with which 

the member of staff or the member of the FMA’s Executive Board have been directly involved for the 

purposes  of  supervision  or  decision-making,  including  direct  or  indirect  parent  undertakings, 

subsidiaries or affiliates  of  those  institutions, and  entities providing services to such institutions 30. 

This cooling-off period should be no less than six months for members of FMA staff directly involved 

in  the  supervision  of  credit  institutions  and  no  less  than  12  months  for  members  of  the  FMA’s 

Executive  Board.  The  cooling-off  period  for  members  of  FMA  staff  and  members  of  the  FMA’s 

Executive Board in respect of recruitment or professional services for entities conducting lobbying or 

advocacy activities directed at the FMA is at least three months 31. The ECB understands that cooling-

off decisions are taken by the FMA, and that the draft law establishes no explicit maximum duration. 

The ECB highlights that the draft law should be without prejudice to the Single Code, as it may be 

amended from time to time, and must not prevent the possibility of imposing and extending a cooling-

off  period  of  a  maximum  of  two  years  to  members  of  the  FMA’s  Executive  Board  that  serve  as 

members of the ECB’s Supervisory Board when such an extended period is applied based on the 

Single Code32.  

24  
25  
26  
27  
28  
29  

30  
31  
32  

See Article 3.2 of the Single Code. 
See Article 4 of Guideline (EU) 2021/2256. 

See Article 4a(2), first subparagraph of the CRD, as inserted by Article 1(4) of the CRD6. 
See Article 6(3) of Guideline (EU) 2021/2256. 

See Article 17.3, point (b), of the Single Code. 
The FMA’s Executive Board consists of two members (see Section 5(1) of the Law on the Financial Market Authority), 
one of whom is a member of the ECB’s Supervisory Board. 
See Article 2 of the draft law, adding Section 15a(5) to the Law on the Financial Market Authority. 
See Article 2 of the draft law, adding Section 15a(7) to the Law on the Financial Market Authority. 

See also paragraph 2.2.3 of Opinion CON/2025/19. 

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2.2.5  In addition, the Single Code sets limits on the establishment of post-employment relationships not 

only  directly  with  significant  or  less  significant  credit  institutions,  but  also  with  other  financial 

institutions and with  ‘any entity engaged in lobbying in relation to the ECB, or consultancy and/or 

advocacy for the ECB or for any [supervised] institution’33. The ECB notes that, under the draft law, 

the cooling-off period only applies in respect of employment or the provision of professional services 

with  (a)  credit  institutions  with  which  the  member  of  staff  or  the  member  of  the  FMA’s  Executive 

Board has been directly involved for the purposes of supervision or decision-making, including the 

direct  or  indirect  parent  undertakings,  subsidiaries  or  affiliates  of  those  institutions;  (b)  entities 

providing  services  to  entities  referred  in  (a);  and  (c)  entities  conducting  lobbying  or  advocacy 

activities directed at the FMA on matters for which the member of the FMA’s Executive Board or the 

member of staff of the FMA was responsible during their employment or term of office. The broader 

category of ‘other financial institutions’ is not included34. Furthermore, the draft law does not cover 

lobbying and advocacy activities for supervised institutions. The ECB therefore considers that the 

requirements of the draft law are less restrictive than those of the Single Code. The ECB highlights 

that the draft law should be without prejudice to the Single Code, as it may be amended from time to 

time,  and  must  allow  the  application  of  the  cooling-off  period  also  with  respect  to  other  financial 

institutions and entities conducting lobbying and advocacy activities for supervised institutions with 

regard to members of the FMA’s Executive Board that serve as members of the ECB’s Supervisory 

Board. 

2.2.6  The prohibition on trading by members of the FMA’s Executive Board and members of staff of the 

FMA set out in the draft law is less restrictive as regards the relevant entities than the requirements 

set out in the Single Code35 and Guideline (EU) 2021/225636. The draft law limits the prohibition to 

financial instruments issued by credit institutions subject to the supervision of the FMA, their direct 

or indirect parent companies, their subsidiaries or affiliated companies, save for some exceptions, 

and does not extend to instruments issued by other regulated entities 37. The ECB highlights that the 

draft law should be without prejudice to the Single Code, as it may be amended from time to time, 

and to Guideline (EU) 2021/2256, and must not prevent the possibility of extending such prohibition 

to financial instruments issued by other regulated institutions. 

2.2.7  The  Single  Code  also  contains  rules,  inter  alia,  on  declarations  of  interests 38,  which  are  more 

restrictive than the provisions of the draft law39. The ECB notes that the application of the draft law’s 

less  restrictive  provisions  would  be  without  prejudice  to  the  application  of  the  stricter  rules  of  the 

Single Code to those individuals who are subject to the Single Code. 

2.2.8  The  ECB  notes  that  the  FMA  has  the  power  to  adopt  regulations  if  there  is  a  specific  statutory 

delegation40.  The  FMA’s  Executive  Board  must  also  prepare  a  compliance  code  that  sets  out 

33  
34  
35  
36  
37  
38  
39  
40  

See Article 17.1 and 17.2 of the Single Code. 
See Article 2 of the draft law, inserting Section 15a(5) into the Law on the Financial Market Authority. 

See Article 16 of the Single Code. 
See Article 11 of Guideline (EU) 2021/2256. 

See Article 2 of the draft law, inserting Section 15a(3) into the Law on the Financial Market Authority. 
See Article 10.   
See Article 2 of the draft law, inserting Section 15a(10) into the Law on the Financial Market Authority. 

See Section 22 of the Law on the Financial Market Authority.  

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procedural  guidelines  on  how  to  conclude  private  legal  transactions  between,  on  the  one  hand, 

members of the FMA’s Executive Board and members of its staff and, on the other hand, supervised 

institutions 41.  The  FMA  has  implemented  the  Compliance  Code  as  well  as  an  internal  code  of 

conduct.  The  ECB  notes  the  draft  law  could  be  amended  to  empower  the  FMA  to  adopt  further 

provisions on conflicts  of  interest  and incompatibilities following termination of office  by means of 

internal  regulatory  acts  (such  as  the  Code  of  Conduct)  to  fulfil  its  obligations  arising  from  its 

membership in the SSM 42.  

2.2.9  The CRD, as amended by the CRD6, provides that Member States must ensure that members of a 

competent  authority’s  governance  body  can  be  dismissed  if  they  no  longer  meet  the  criteria  of 

appointment or have been convicted of a serious criminal offence43. Under the current version of the 

Law on the Financial Market Authority, the members of the FMA’s Executive Board can be dismissed 

if an important reason  exists, such as in particular: (a) if a condition for appointment  is no longer 

being fulfilled; (b) if it subsequently emerges that a condition for appointment had not been fulfilled; 

(c) if a gross breach of duty has occurred; (d) in the event of permanent incapacity or if the member 

concerned is absent from work for a period of longer than half a year as a result of illness, an accident 

or an infirmity; or (e) if despite supervisory measures having been taken breaches of duty have not 

been rectified or have not been rectified in a lasting manner 44. In addition, only persons who are not 

excluded  from  the  right  to  be  elected  to  the  Austrian  National  Assembly  may  be  appointed  as 

members of the FMA’s Executive Board45. This provision excludes persons who have been convicted 

of an intentional criminal offence and sentenced to a prison sentence of more than six months without 

probation, a suspended prison sentence exceeding one year, or a prison sentence exceeding six 

months for certain corruption offences 46. The ECB understands that these provisions – which are to 

be interpreted in conformity with the requirements of Article 4a(2), second subparagraph, of the CRD, 

as inserted by the  CRD6 – enable,  in line with the CRD, the  dismissal of members of the FMA’s 

Executive  Board  if  they  no  longer  meet  the  criteria  for  appointment  or  have  been  convicted  of  a 

serious criminal offence, even though the latter point is not explicitly covered by the wording of the 

draft law. 

3. 

Other provisions transposing the CRD6  

3.1  Third-country branches 

With regard to third-country branches, the ECB notes that certain provisions of the CRD relating to 

authorisation  requirements  and  minimum  regulatory  requirements  for  third-country  branches,  the 

supervisory review and evaluation process, supervisory measures and powers and notifications to 

EBA  have  not  been  transposed  into  Austrian  law,  nor  is  the  reason  for  their  non-transposition 

mentioned in the explanatory memorandum accompanying the draft law. The ECB understands that 

41  
42  
43 
44  
45  
46  

See Section 6(4) of the Law on the Financial Market Authority. 
See also paragraph 1.4 of Opinion CON/2025/33 and paragraph 1.11 of Opinion CON/2025/36. 

See Article 4a(2), second subparagraph, of the CRD, as inserted by the CRD6. 
See Section 7(3) of the Law on the Financial Market Authority. 
See Section 5(4) of the Law on the Financial Market Authority. 

See Section 41(1) of the Rules of Procedure for the Austrian National Assembly. 

7 

 
 
 
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third-country branches are already required to obtain a licence under Austrian law 47, which amounts 

to a more stringent requirement than that imposed by the CRD6. 

3.2  Notification of material holdings and mergers and divisions 

With regard to the notification of material holdings and mergers and divisions, the CRD6 provides 

that, if the national competent authority does not oppose the relevant operation for which the CRD6 

prescribes an assessment period48 within that assessment period in writing, the relevant operation 

is  to  be  deemed  approved  for  acquisitions  of  material  holdings49  or  the  opinion  of  the  competent 

authority is to be deemed positive for intragroup mergers and divisions50. According to the draft law, 

the  FMA  must  issue  a  decision  even  if  it  does  not  impose  a  prohibition  at  the  request  of  the 

prospective  purchaser  (in  the  case  of  acquisitions  of  material  holdings) 51  or  at  the  request  of  the 

notifying  party  (in  the  case  of  intragroup  mergers  and  divisions)52.  The  ECB  understands  these 

provisions  as  implying  that  the  FMA  must,  in  contrast  to  the  CRD6,  always  issue  a  decision  if 

requested to do so by the respective credit institution. The ECB understands that this obligation on 

the FMA is of a procedural nature and would not have to be applied by the ECB in cases where the 

ECB is responsible for the direct supervision of significant credit institutions incorporated in Austria53. 

In addition, it should be noted that the obligation could be interpreted as constraining the discretion 

of the competent authorities to determine on a case-by-case basis whether to conduct assessments 

of mergers and divisions or acquisitions of material holdings, as specified by the CRD654. For the 

purposes of clarity and transparency, the ECB suggests that the Austrian legislator should consider 

formulating  the  obligation  to  issue  a  decision  on  request  in  a  way  that  makes  it  clear  that  this 

obligation  applies  only  in  relation  to  the  FMA,  and  not  to  the  ECB,  and  that  it  does  not  apply  to 

situations where the competent authority has decided to exercise the CRD6 discretion not to assess 

the operation.  

3.3  ESG risks 

3.3.1  According to the CRD6, Member States must ensure that the management body approves and at 

least every two years reviews the strategies and policies for taking up, managing, monitoring and 

mitigating the risks the institution is or might be exposed to, including those resulting from the current 

and short-, medium- and long-term impacts of ESG factors55. Pursuant to the CRD6, Member States 

must ensure that the management body develops and monitors the implementation of specific plans 

that include quantifiable targets and processes to monitor and address the financial risks arising in 

the short, medium and long term from ESG factors56. The draft law contains no specific reference to 

47  
48  
49  
50  
51  
52  
53  

54  

55  
56  

See Section 4(4) of the Law on banking. 

See Articles 27a(6) and 27i(4) of the CRD as inserted by the CRD6. 
See Article 27a(14) of the CRD as inserted by the CRD6. 

See Article 27i(9) of the CRD as inserted by the CRD6. 
See Article 1 of the draft law, inserting Section 20d(2) into the Law on banking. 

See Article 1 of the draft law, inserting Section 20m(8) into the Law on banking. 
See also paragraph 2.4 of Opinion CON/2025/44 in which the ECB opined that introducing a deadline in national law 
is  a  procedural  burden  that  could  jeopardise  the  ECB’s  ability  to  fully  use  its  supervisory  discretion  for  the  (non) 
assessment of intra-group mergers involving significant institutions. 

See Articles 27a(7) and 27i(2) of the CRD as inserted by the CRD6. See also paragraphs 3.2.1 to 3.2.3 of Opinion 
CON/2025/36. 
See Article 76(1) of the CRD as inserted by the CRD6. 

See Article 76(2) of the CRD as inserted by the CRD6. 

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the responsibility of the management body to approve and review strategies and polices for ESG-

risk management and to develop and monitor the implementation of plans that address these risks57.  

3.3.2  The CRD6 contains further provisions on ESG risks. For example, it requires that institutions need 

to consider a long-term time horizon of at least 10 years58. Moreover, competent authorities must 

ensure that institutions test their resilience to long-term negative impacts of ESG factors, both under 

baseline and adverse scenarios within a given timeframe, starting with climate-related factors. For 

such resilience testing, competent authorities must ensure that institutions include a number of ESG 

scenarios 59. The draft law only partially implements these provisions. The draft law requires that the 

FMA must establish, by regulation, minimum requirements for the proper identification, management, 

monitoring, and mitigation of ESG risks 60. The ECB understands that the minimum requirements on 

resilience testing, scenarios and the minimum time horizon of 10 years will therefore be implemented 

by the FMA via the delegated regulation provided for under Section 39(4) of the Law on banking.   

3.4  Suitability assessment for management bodies and key function holders 

The ECB understands that the draft law permits credit institutions to designate further persons as 

key function holders in addition to the heads of internal control functions and, where applicable, the 

chief  financial  officer 61.  Such  further  key  function  holders  would  be  subject  to  the  suitability 

requirements currently laid down in the Law on banking62 and to the internal assessment obligations 

under the draft law. In the interest of legal certainty and supervisory consistency, the draft law should 

clarify that the appointment of persons to those additional key function holder positions does not give 

rise to a notification obligation vis-à-vis the competent authority, unless such persons otherwise fall 

within a category for which a notification obligation is expressly provided under the Law on banking. 

In  addition,  under  an  amendment  to  the  CRD  made  by  the  CRD6,  heads  of  the  internal  control 

functions are not to be removed without the prior approval of the management body in its supervisory 

function63. By contrast, the draft law only requires prior notification of the management body in its 

supervisory function64. 

3.5  Administrative penalties, periodic penalty payments and other administrative measures 

3.5.1  The ECB welcomes that the draft law extends the availability of administrative penalties to additional 

breaches of law. The ECB takes the view that the dissuasiveness of the sanctioning regime could be 

further  improved  by  granting  the  national  supervisory  authority  powers  to  impose  penalties  for  all 

breaches mentioned in Articles 66 and 67 of the CRD on an institution and on the individuals that are 

liable for such breaches. In this respect, the ECB observes that the scope of the persons subject to 

administrative  penalties,  periodic  penalty  payments  and  other  administrative  measures  has  been 

extended  to  include senior management, key function holders and  other members of staff whose 

professional activities have a material impact on an institution's risk profile. 

57  
58  
59  
60  
61  
62  
63  
64  

See Article 1 of the draft law, amending Section 39(2) and adding Section 39(7) of the Law on banking. 
See Article 87a(2) of the CRD as inserted by the CRD6. 

See Article 87a(3) of the CRD as inserted by the CRD6. 
See Article 1 of the draft law, amending Section 39(4) of the Law on banking. 

See Article 1 of the draft law, inserting Section 39f(1) into the Law on banking. 
See Section 5(1), points 6 and 7 of the Law on banking. 
See Article 76(6), fifth subparagraph, of the CRD as inserted by the CRD6. 

See Article 1 of the draft law, inserting Section 39(5a) into the Law on banking. 

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3.5.2  The ECB further notes that, in respect of failure to comply with decisions or to obtain a necessary 

licence, the draft law refers exclusively to decisions and licences of the FMA 65. This would not cover 

the situation where the ECB imposes a requirement or a required ECB permission was not obtained 

when the institution is a significant institution and then becomes a less significant institution under 

the direct supervision of the FMA66. The ECB also takes the view that it would be desirable for the 

draft law to clarify whether decisions imposing periodic penalty payments are to be published by the 

national  competent  authority  and  whether  the  national  competent  authority  enjoys  a  margin  of 

discretion  regarding  the  imposition  of  absorption  interest  in  line  with  the  judgment  of  the  General 

Court in BAWAG PSK v ECB67. 

This opinion will be published on EUR-Lex. 

Done at Frankfurt am Main, 19 June 2026. 

[signed] 

The President of the ECB 

Christine LAGARDE 

65  
66  
67  

See Article 1 of the draft law, adding Section 98(5), points 6 and 8, to the Law on banking. 
See Article 67(1), points (s) and (u), of the CRD as inserted by the CRD6. 

See judgment of the General Court of 28 February 2024, BAWAG PSK v ECB, T-667/21, ECLI:EU:T:2024:131. 

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