EN 
 
 
OPINION OF THE EUROPEAN CENTRAL BANK 
of 29 Septem
ber 2009  
on payment services 
(CON/2009/75) 
 
Introduction and legal basis  
On 5 August 2009 the European Central Bank (ECB)  received a request from the Slovak Ministry of 
Finance for an opinion on a draft law on payment services and on amendments to certain laws (hereinafter 
the ‘draft law’). 
The ECB’s competence to deliver an  opinion is based on Article 105(4) of the Treaty establishing the 
European Community and the second to fifth indents of Article 2(1) of Counc il Decision 98/415/EC of 
29 June 1998 on the consultation of the European Central Bank by national authorities regarding draft 
legislative provisions1, as the draft law relates to means of payment, the national central bank, statistics, 
and payment and settlement systems. In accordance with the first sentence of Article 17.5 of the Rules of 
Procedure of the European Central Bank, th e Governing Council has adopted this opinion. 
 
1.  Purpose of the draft law 
1.1 The main purpose of the draft law is to tr anspose into Slovak law Directive 2007/64/EC of the 
European Parliament and of the Council of 13 November 2007 on payment services in the internal 
market amending Directives 97/7/EC, 2002/65/EC , 2005/60/EC and 2006/48/EC and repealing 
Directive 97/5/EC (hereinafter the ‘Payment Services Directive’)2. The draft law also implements 
Directive 98/26/EC of the European Parliament and of the Council of 19 May 1998 on settlement 
finality in payment and securities settlement systems (hereinafter the ‘Settlement Finality Directive’)
3 and Directive 2000/46/EC of the European Parliament and of the Council of 
18 September 2000 on the taking up, pursuit of and prudential supervision of the business of 
electronic money institutions (hereinafter th e ‘Electronic Money Institutions Directive’)4. As stated 
in its explanatory memorandum, the draft law goes beyond the implementation of the abovementioned Community directives and focuses in particular on consumer protection in the 
field of payment systems.  
                                                 
1 OJ L 189, 3.7.1998, p. 42.  
2 OJ L 319, 5.12.2007, p. 1. 
3 OJ L 166, 11.6.1998, p. 45. Directive 98/26/EC has already been transposed into Slovak law by Law No 510/2002 Coll. 
on payment systems ( zákon o platobnom styku ), which the draft law will repeal. 
4 OJ L 275, 27.10.2000, p. 39. Directive 2000/46/EC has already been transposed by the abovementioned Law on payment 
systems.  
 
1.2
 The focus of this opinion is on the provisions of the draft law that relate to means of payment, 
Národná banka Slovenska, statistics and payment and settlement systems that go beyond the strict 
implementation of the abovementioned Community directives. In this opinion the ECB provides no assessment of the overall implementation in Slovakia of those directives. 
 
2. General observations The aim of the draft law is to comprehensively gove rn payment services, electronic money, and payment 
and settlement systems in Slovakia and, by implemen ting the Payment Services Directive, to fulfil the 
regulatory pre-conditions for the introduction of the Single European Payment Area. Despite the wording of Article 1(3)(h) of the draft law and the differences in the scopes of the Payment 
Services Directive, on the one hand, and the Settleme nt Finality Directive, on the other hand, the ECB 
understands that it should be interpreted in the light of Article 1(1)(b) of the draft law. However, for 
reasons of legal certainty, it would be welcomed if Article 1(3)(h) could be explicitly clarified on this 
point to avoid any doubt as to whether the comprehens ive approach of the draft law could lead to the 
exclusion of the application of the implementing provisions for the Settlement Finality Directive.  
 3. Specific observations 3.1 New tasks and sufficient human and other resources 
 The draft law acknowledges Národná  banka Slovenska’s oversight a nd supervision tasks in respect 
of payment systems and payment institutions. Howe ver, in order for Nár odná banka Slovenska to 
perform these tasks in parallel with its existing Eu rosystem-related tasks and other tasks assigned to 
it by national law, it is essential that it has sufficient human and other resources
5. 
3.2 Operation and oversight of payment systems  
 Article 45(3)(a) of the draft law defines ‘payment systems’ as such systems as are operated by 
Národná banka Slovenska. Article 47(1) lists possible participants in payment systems. The ECB 
points out that, in respect of Národná banka Slovenska’s component in TARGET2, the list of 
participants is more narrowly defined in  Národná banka Slovens ka’s Decision 9/2008 of 
25 November 2008 on conditions for participation in TARGET2-SK, in accordance with Article 4 
of the Harmonised Conditions for participation in TARGET26. Therefore, the ECB recommends 
amending Article 47(1) to clarify that the list of pa rticipants in payment systems may be defined in 
more detail in payment system rules. Article 45(8) of the draft law lays down the overs ight requirements for payment system operators, 
central securities depositories and payment servi ce providers in accordance with international 
oversight standards and evaluation criteria and ove rsight standards and procedures established by 
                                                 
5 See paragraph 3.1 of ECB Opinion CON/2009/27 and paragraph 3 of ECB Opini on CON/2009/36. All ECB opinions are 
published on the ECB’s webs ite at www.ecb.europa.eu. 
6 See Annex II to Guideline ECB/2007/2 of 26 April 2007 on a Trans-European Automated Re al-time Gross settlement 
Express Transfer system (TARGET2) (OJ L 237, 8.9.2007, p. 1).  
2 
 
the ECB, the
 European System of Central Banks (ESCB) and/or other European Economic Area 
(EEA) Member State authorities designated under the laws of the relevant EEA Member State. The 
references to the applicable oversight standards ar e too broad, so the ECB suggests that the current 
wording of the first sentence of Article 45(8) shou ld be restricted to the applicable Eurosystem 
oversight standards and any supplementary st andards adopted by Národná banka Slovenska. 
 Under Article 61(3) of the current Law on payment systems, an entity applying for a licence to 
operate a payment system governed by Slovak law must fulfil certain criteria, including a 
requirement to be a joint-stock company with a registered office in Slovakia7. Article 57(2)(a) of 
the draft law amends the criteria by requiring th e entity to be a joint-stock company with a 
registered office in an EEA Member State. 
 Concerning EEA operators of payment systems gove rned by the law of Slovakia and supervised by 
Národná banka Slovenska under Artic le 60 of the draft law, the ECB understands that Article 45(8) 
of the draft law takes into account the app lication by Národná ba nka Slovenska of the 
Eurosystem’s location policy so that the Eurosyst em has sufficient means to  ensure the safety of 
non-Eurosystem operators and to avoid the risk of  undermining the Eurosystem’s control over the 
euro, and for the proper performance of its core task s. For greater clarity, in its Article 45(8), the 
draft law should explicitly state the Eurosystem principles on the location and operation of systems that settle in euro. 
3.3 Liability issues  
 In implementing the Payment Services Directive, the term ‘gross negligence’ and the distinction 
between ordinary negligence and gross ne gligence are introduced in the draft law
8. The ECB points 
out that the liability regime which applies to cases of “gross negligence” is al so applicable to cases 
of “fraud and wilful misconduct” pursuant to Article 31(2) of the Harmonised Conditions for participation in TARGET2. Therefore the ECB reco mmends amending Article 45(9)(a) of the draft 
law accordingly. Moreover, the ECB suggests that, in order to fully transpose the liability regime, 
amendments reflecting the distinction between ordinary negligence and gross negligence should be made to the measures which have been adopted  by Národná banka Slovenska to implement 
Article 31 of the Harmonised Conditi ons for participation in TARGET2.  
3.4 Statistics 
The draft law also amends Law No 566/1992 Co ll. on Národná banka Sl ovenska, and explicitly 
empowers Národná banka Slovenska to collect statistics and other data under Law No 566/1992 
Coll. and under special legislation. The ECB suggests that the duties in the field of statistics should be clarified and should encompass the collection of  statistical information in order to assist the 
ECB in the performance of the ESCB’s tasks. In th is respect, Articles 5.1 and 5.2 of the Statute of 
the European System of Central Banks and of the European Central Bank state that, for the performance of the tasks of the ES CB, the ECB, assisted by the nati onal central banks shall collect 
                                                 
7 The ECB commented on this issue in its Opinion CON/2008/18. 
8 See Articles 10(2), 12(2) and 45(9)(a) of the draft law. 
3 
 
4 the necessary statistical information, and the nati onal central banks shall carry out these tasks, to 
the extent possible. 
3.5 Date of entry into force 
 Although Article 94(1) of the Payment Services Di rective provides that the Member States have to 
bring into force the laws, regulations and administrative provisions necessary to comply with it 
before 1 November 2009, Section XVIII of the dr aft law lays down the date 1 December 2009. 
While the ECB understands that the date of entry into  force of the draft law has been determined to 
guarantee an adequate period for its addressees to  become acquainted with the new regime it 
introduces, the transposition obligations flowing from the Payment Services Directive should be 
observed. 
 
This opinion will be published on the ECB’s website.   Done at Frankfurt am Main, 29 September 2009. 
 
[signed] 
 
The President of the ECB 
Jean-Claude TRICHET