EN ECB -PUBLIC  
 
OPINION OF THE EUROPEAN CENTRAL BANK  
of 14 February  2018  
on the re turn of monetary funds to the Republic of Slovenia from  designated  tax havens  
(CON/201 8/8) 
 
Introduction and legal basis  
On 11 December 2017 the European Central Bank (ECB) received a request from the National Assembly 
of the Republic of Slovenia ( the “National Assembly”) for an opinion on a draft law on the return of 
monetary funds to the Republic of Slovenia from des ignated tax havens ( hereinafter 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 (hereinafter ‘TFEU’) and the third indent of Article 2(1) of Council  
Decision 98/415/EC1 as the draft law relates to Banka Slovenije. 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 main  objective of the draft law , which was prepared by the National Council of the Republic of 
Slovenia  (Državni svet ), is to introduce a regime resembling a penalty tax regime in order to 
combat the leaking of  monetary  funds into designated low or no- tax countries (so- called ‘ tax 
havens ’) which, according to the draft law’s explanatory memorandum, are causing harmful tax 
competition to traditional  tax countries such as Slovenia.  The draft law  stipulates  the conditions, 
procedure and relevant  authorities for enabling the return of funds  from the designated tax havens  
into the national budget . The list of  countries considered as tax havens under the draft law includes  
inter alia several  EU Member S tates.  
1.2 The draft law provides that f unds  which have been directly or indirectly transferred from Slovenian 
bank accounts into accounts in the designated tax havens will be subject to a penalty tax rate. For 
transfers  made from 25 June 1991 until the entry into force of the draft law , a rate of 20 per  cent 
will apply and the liable p ersons  will have to make payments with in a six-month period following the 
entry into force of the draft law. For transfers of funds  made after the entry into force of the draft 
law, a rate of 22 per  cent will apply  and payments will b e due within three m onths of making  the 
relevant  transfer . In case of breach of the obligation of payment  of the relevant sum , the liable 
person will be charged by the tax authority at a  rate of 80 per  cent of the transferred funds.  
1.3 Liable p ersons  include natural persons with Slovenian citizenshi p; foreign natural persons holding 
accounts in banks and other payment institutions in Slovenia;  legal entities registered in Slovenia 
                                                 
1  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).  
ECB -PUBLIC  
2 operating in the relevant period covered by the draft law ; and foreign legal entities holding accounts 
in banks and other payment institutions in Slovenia dur ing the relevant period. The draft law 
excludes from its scope certain entities, including State authorities, international organisations, 
religio us organisations, as well as remittances made by banks on their own behalf and payments 
made by Banka Slovenije.  
1.4 Public authorities and financial institutions, including banks  and Banka Slovenije, are obliged to 
provide information to the authorities  responsible for the implementation of the draft law  on any 
payments  made by liable p ersons  to the designated tax havens and to provide any other 
assistance , free of charge. The draft law indicates that all data related to liable persons  under the 
draft la w and all data related to the payments  made to  the designated tax havens i s public 
information that can be acquired and published by anyone.  
 
2. Observations  
2.1 The ECB notes that on 5 December 2017 the Council adopted the Council conclusions on the EU 
list of  non-cooperative jurisdictions for tax purposes2. According to the Commission, when 
assessed against the EU list criteria, all Member States are fully compliant .3 Since the taxation of 
funds  transferred to Member States designated  as tax havens  as foreseen by the draft law would 
also appear to affect the free movement of capital, the National Assembly should consult the 
Commission , as the guardian of the Treaties , on the  draft law, if it has not already done so4. 
2.2 The ECB understands that the data to be provided to the relevant authorities  responsible for the 
implementation of the draft law  is limited to information on remittances of monetary funds of liable 
persons , as stipulated in a rticle 9(1) of the draft law. However, where Banka Slovenije,  which is 
also the national competent authority empowered by national law to supervise credit institutions , 
shares  such information with, or provides  assistance  to, the relevant authorities , it must comply 
with the confidentiality regime set out in Directive 2013/36/EU5 of the European Parliament and of 
the Council . 
2.3 While it appears  that the data requests to Banka Slovenije would,  primarily , not concern statistical 
information, in view of the broad scope of the potential assistance to be pr ovided by Banka 
Slovenije to the relevant authorities , the framework applicable to confidential statistical data should 
be considered . Article 8(3) of Council Regulation (EC) No 2533/986 provides that  the European 
System of C entral Bank (ESCB)  members shall take all the necessary regulatory, administrative, 
technical and organisational measures to ensure the physical and logical protection of confidential 
                                                 
2  See Council conclusions adopted in Brussels on 5 December 2017, document number 15429/17, FISC 345 , 
ECOFIN 1088, and the Commission’s accompanying press release,  available at: http://europa.eu/rapid/press -
release_IP -17-5121_en.htm.  
3  See the Questions and Answers on the EU list of non- cooperative tax jurisdictions, available at: 
http://europa.eu/rapid/press -release_MEMO -17-5122_en.htm.  
4  See for example ECB Opinion CON/2006/6. All ECB opinions are published on the ECB's website at 
www.ecb.europa.eu.  
5  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).   
6  Council Regulation (EC) No 2533/98 of 23 November 1998 concerning the collection of statistical information by the 
European Central Bank  (OJ L 318, 27.11.1998, p. 8).  
ECB -PUBLIC  
3 statistical information. Confidential statistical information collected pursuant to Council Regulation 
(EC) No 2533/98 may be used exclusively for the exercise of the tasks of the ESCB  as well as in 
the field of prudential supervision with regard to NCBs  or for other statutory NCB tasks.7 
2.4 NCB staff members are also subject to the obligation of professional secrecy under Article 37 of the 
Statute of the European System of Central Banks and of the European Central Bank . The primacy 
of Union law means that national laws on third party access to documents may not result in 
infringement s of the ESCB’s confidentiality regime. Where access to an NCB’s information and 
documents is allowed under Union law, the NCBs should ensure that the receiving bodies protect 
the confidentiality of information and documents disclosed at a level correspond ing to that applied 
by the NCBs themselves. A ny provision of information under the draft law by Banka Slovenije 
should comply with applicable Union laws, including those governing the exchange of supervisory 
and statistical information, as well as the obli gation of professional secrecy.8 
2.5 The ECB understands Article 9 of the draft law  to constitute a cooperation arrangement between, 
inter alia, Banka Slovenije  and the relevant authorities responsible for the implementation of the 
draft law. Banka Slovenije is to provide  to the authorities , free of charge,  data relating to transfers 
of funds of liable persons and assistance as necessary . In this respect the ECB notes the principle 
of financial independence of NCBs which requires that Member States do not put  their NCB in a 
position where they have insufficient financial resources to carry out their Eurosystem -related 
tasks , both from an operational and a financial perspective9. Therefore, the cooperation 
arrangement should not create any financial risks for B anka Slovenije. Should the scope of the 
draft law in respect of any assistance  provided by Banka Slovenije prove in practice to require a 
regular, lasting and substanti al engagement of Banka Slovenije ’s resources  with the result that its 
assistance qualifie s as a new task  for Banka Slovenije, then the ECB would need to be informed 
accordingly in order to reassess the draft law and the related tasks of Banka Slovenije against the 
prohibition on monetary financing under Article 123 of the Treaty.10 
 
This opinion will be published on the ECB’s website.  
 
 
Done at Frankfurt am Main, 14 February  2018.   
 
[signed]  
 
The President of the ECB  
Mario DRAGHI  
                                                 
7  See p aragraph 6.4 of  ECB opinion CON/2015/57.  
8  See p aragraph 6. 3 of ECB opinion CON/2015/57.  
9  See ECB Convergence Report 2016, p.25.  
10  See for example ECB opinions CON/2017/32, CON/2016/35, CON/2017/3, CON/2015/22, CON/2016/34.