EN ECB -PUBLIC  
 
OPINION OF THE EUROPEAN CENTRAL BANK  
of 28 September 2015  
on a draft law  on the financial instruments market  
(CON/20 15/34) 
 
Introduction and legal basis  
On 29 July 2015 the European Central Bank (ECB) received a request from the Slovenian Ministry of 
Finance for an opinion on the draft law amending the Law on the Financial Instruments Market1 
(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 Unio n and the third , fifth  and sixth indents of Article  2(1) of Council Decision 
98/415/EC2, as the draft law relates to Banka Slovenije, settlement systems  and rules applicable to 
financial institutions insofar as they materially influence the stability of fi nancial institutions and markets . 
For those elements of the draft law with the exclusive purpose of transposing  Union law, the ECB’s 
competence to deliver an opinion is based on Article 25.1 of the Statute of the European System of 
Central Banks and of the European Central Bank.  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 transposes certain provisi ons from a number of  Union Directives  in the financial area3 
into Slovenian law, and adjust s Slovenian legislation to certain Union Regulations  in the financial 
area4.  
                                                 
1  Zakon o trgu finančnih instrumentov ( official gazette of the Republic of Slovenia, no. 108/10 –  official consolidated 
version, 78/11, 55/12, 105/12 –  ZBan -1J and 63/13 – ZS-K). 
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) . 
3  The Union Directives concerned are: 1) D irective 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), as regards the investment firms ( mainly to correct the cross- references to the Slovenian Law on 
Banking which implements this Directive and to which the Law on the Financial Instruments Market refers ); 2) 
Directive 2013/50/EU  of the  European Parliament and of the Council  of 22 October 2013 amending Directive 
2004/109/EC of the European Parliament and of the Council on the harmonisation of transparency requirements in 
relation to information about issuers whose securities  are admitted to trading on a regulated market, Directive 
2003/71/EC of the European Parliament and of the Council on the prospectus to be published when securities are 
offered to the public or admitted to trading and Commission Directive 2007/14/EC laying down detailed rules for the 
implementation of certain provisions of Directive 2004/109/EC  (OJ L 294, 6.11.2013, p. 13); and 3) Directive 
2014/51/EU of the European Parliament and of the Council of 16 April 2014 amending Directives 2003/71/EC and 
2009/138/ EC and Regulations (EC) No 1060/2009, (EU) No 1094/2010 and (EU) No 1095/2010 in respect of the 
powers of the European Supervisory Authority (European Insurance and Occupational Pensions Authority) and the European Supervisory Authority (European Securities and Markets Authority)  (OJ L 153, 22.5.2014 , p. 1) , to the 
extent that the amendments relat e to the amendments made by the latter to Directive 2003/71/EC, in particular 
regarding the duty of the national financial market supervisor to transmit final information about prospectuses to ESMA.
 
ECB -PUBLIC  
2 1.2 As regards  Banka Slovenije, it is noted that the draft law removes the provisions r egulating the 
supervisory competences of the Securities Market Agency and Banka Slovenije over the central 
securities depository . These competencies  will be regulated in a separate legal act implementing 
the C entral Securities Depositories Regulation.  
1.3 The draft law also amends the Law on the Financial Instruments Market in order to: (i) clarif y the 
bankruptcy procedure for investment firm s, (ii) amend certain condition s for the establishment of 
small investment firms, (iii) amend the provisions regarding liability for  the accuracy of the 
information contained in prospectus es, (iv) define the conditions for the removal of debt 
instruments from trading on an organised market , (v) supplement  the provisions on the 
performance of investment services , where the client has been referred by another investment firm , 
(vi) introduce amendments , as regards the stock exchange and stock market , to clarify  the 
application , mutatis mutandis , of certain provisions of the Law on Banking, (vii) regulate 
cooperation between the Securities Market Agency and other competent third-country financial 
market authorities and (viii) align certain provisions of the Law on the Financial Instruments Market 
with other national laws.  
1.4 Article 95 of the draft law corrects certain incons istencies in the provisions of Slovenian law 
transposing Directive 98/26/EC5 (the ‘Settlement Finality Directive’ or ‘ SFD’), in particular regarding 
the implementation of Article 3 of the SFD. T hese inconsistencies concern Article 450.a of the 
current Law on the Financial Instruments Market , which  governs  the finality of transfer orders 
entered into the securities settlement system in the event of the insolvency of a system participant 
(or other proceeding or measures of a competent authority of the Republi c of Slovenia,  or of any 
other country , against a settlement system  participant , excluding or limiting the execution of the 
orders of such participant, as referred to in Article 450, and hereinafter referred to as ‘insolvency 
proceedings ’). In particular, Article 450.a, as amended by Article 95 of the draft law, now (i) clearly 
distinguishes between the use of the terms  ʻentry ʼ and ʻentered ʼ to differentiate between the 
ʻmoment of entry of a transfer order into a systemʼ  (which is t o be defined in the rules  of the  
system, as required by Article 39(2) and 48(8) of the CSDR and Article 3  of the SFD) and the 
ʻsending ʼ of the transfer order by the system participant. Further more, Article 95 of the draft law 
corrects the reference to the timeframe with in which th e execution of a transfer order, if  it has been  
entered into the system after the opening of insolvency proceedings against a participant, must 
occur in order for it to be valid, which is understood to mean legally enforceable and binding on 
third parties.  Article 450.a now stipulates that  a settlement order that was entered into the system 
after the opening of such a proceeding,  will be valid if it was executed in the system  within the 
same day . A further correction is made to clarify that the system operator must be able to prove 
that he was not aware, or could not have been aware, of the opening of the insolvency proceedings 
                                                 
4  The Union Regulations concerned are: 1) Regulation (EU) No 575/2013 of the European Parliament and of the 
Council of 26 June 2013 on prudential requirements for credit institutions and investment firms and amending 
Regulation (EU) No 648/2012 (OJ L 176, 27.6.2013, p. 1) , as regards investment firms/services ;  and 2)  Regulation 
(EU) No 909/2014 of the European Parliam ent and of the Council of 23 July 2014 on improving securities settlement 
in the European Union and on central securities depositories and amending Directives 98/26/EC and 2014/65/EU 
and Regulation (EU) No 236/2012 (OJ L 257, 28.8.2014, p. 1)  (the ‘Central  Securities Depositories Regulation’  or 
‘CSDR’ ). 
5  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 (OJ L 166, 11.6.1998, p.45).  
ECB -PUBLIC  
3 against the participant at the point in time when the transfer order became irrevocable.  Finally , the 
abovementioned inconsistencies  are addressed by rewording point 2 of paragraph 1 of 
Article  450.b, which  governs  the effects of insolvency proceedings against a settlement system 
participant on the validity of the rights arising from collateral security provided in connection with 
the system.  
 
2. Observations  
2.1 The ECB takes note of the draft law.  
2.2 The ECB  welcomes  the fact  that Article 95 and 96 of the draft law  remove previous shortcomings in 
the text of Articles 450.a and 450.b of the current Law on the Financial Instruments Mar ket, 
implementing the SFD. In this respect,  it is noted  that the reference in the amended second 
paragraph of Article 450.a to the execution of a transfer order within the ʻdayʼ should be replaced 
by a reference to ʻbusiness day, as defined by  the rul es of the system ʼ, to remove any uncertainty 
about the status  of any night -time settlement services6. 
 
This opinion will be published on the ECB’s website.  
 
 Done at Frankfurt a m Main, 28 September 2015.  
 [signed]  
 
The President of the ECB  
Mario DRAGHI  
                                                 
6  See Section 6.1.3 of the explanatory memorandum t o the proposal for a Directive of the E uropean Parliament and of 
the Council amending Directive 98/26/EC on settlement finality in payment and securities settlement systems and 
Directive 2002/47/EC on financial collateral arrangements as regards linked systems and credit claims 
(COM(2008)213 final ).