EN 
 
 
OPINION OF THE EUROPEAN CENTRAL BANK 
of 23 November 2007 
at the request of the Slovenian Ministry of Finance  
on a draft law on foreign exchange 
(CON/2007/38) 
 Introduction and legal basis
 
On 30 October 2007, the European Central Bank (ECB)  received a request from the Slovenian Ministry 
of Finance for an opinion on a draft law on fore ign exchange (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 third indent of Article 2(1) of Council 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 Banka Slovenije . In accordance with the first sentence of 
Article 17.5 of the Rules of Procedure of the Europ ean Central Bank, the Governing Council has adopted 
this opinion. 
 1.  Purpose of the draft law 
1.1 The draft law: (i) regulates foreign exchange cash  operations; (ii) designates competent authorities 
for supervision of compliance with the draft law and for taking decisions in offence proceedings 
under the draft law; and (iii) specifies the comp etent authorities and the penalties for infringements 
as required by Regulation (EC) No 1889/2005 on controls of cash entering or leaving the 
Community
2. 
1.2 Pursuant to Article 13 of the draft law, Banka Sl ovenije is to supervise the operations of authorised 
banks and savings banks in r espect of foreign exchange cas h operations, and other persons 
authorised to carry out foreign exchange cash tran sactions. This supervisory function already exists 
pursuant to Article 583 of the present Law on foreign exchange4 which will be repealed by the draft 
                                                      
1  OJ L 189, 3.7.1998, p. 42.  
2  OJ L 309, 25.11.2005, p. 9. 
3  Article 58 of the Law on foreign exchange: ‘Banka Sloveni je shall supervise the operations of authorised banks and 
savings banks and, in respect of forei gn exchange cash operations, also of other persons authorised to carry out foreign 
exchange cash transactions.’ 
2 law. However, Article 13 of the draft law, r ead in conjunction with Article 45(1) and (2)5 of the 
Law on general offences6, expands Banka Slovenije’s powers to include new tasks related to taking 
decisions concerning the offences set out in the draft law7. In exercising supervision within the 
scope of its competence, whenever Banka Sloveni je finds that the conditions it prescribes for 
carrying out foreign exchange transactions have b een breached, it should also take decisions with 
regard to such offences and impose appropriate pe nalties in offence proceedings. Under the current 
Law on foreign exchange, the offence proceedings described have hitherto been conducted by the 
Slovenian Tax Administration.  
 2. General observations 2.1 The new tasks described in paragraph 1.2 are not listed among the functi ons of national central 
banks (NCBs) specified in the Statute of the Eu ropean System of Central Banks and of the 
European Central Bank. However, without prej udice to the Governing Council’s powers under 
Article 14.4 of the Statute of the ESCB, the E CB considers that these tasks should not interfere 
with the objectives and tasks of the European System of Central Banks. These new tasks would be 
performed on the responsibility and liability of Ba nka Slovenije, and would not be regarded as 
being part of the ESCB’s functions. 
2.2 The ECB understands that the underlying r eason for allocating the tasks referred to in 
paragraph 1.2 to Banka Slovenije is linked to  Banka Slovenije’s overall responsibility for the 
supervision of banks and savings  banks. The ECB is of the opinion that the exercise of the new 
tasks under the draft law could further enhance th is supervisory function in respect of foreign 
exchange cash transactions.  
2.3 Banka Slovenije will have to commit additional resources, both human and financial, to carrying 
out the tasks referred to in paragraph 1.2. In th is context, the ECB has emphasised that ‘Member 
States may not put their NCBs in a position where th ey do not have sufficient financial resources to 
carry out their ESCB- or Eurosystem-related tasks, as applicable’
8. The ECB has consistently 
expressed its concern that, when allocating additiona l tasks to NCBs, it must be ensured that they 
have sufficient human and financial resources, both in  terms of quantity and quality, to carry out all 
                                                                                                                                                                           
4  Zakon o deviznem poslovanju , adopted on 23 March 1999, published in the Offi cial Gazette of the Republic of Slovenia 
No 23/1999. The Law as last amended by the Law on the intr oduction of the euro (Official Gazette of the Republic of 
Slovenia No 114/2006). 
5  Article 45 (1) and (2) of the Law on general offences:   
‘(1) Offence authorities and courts shall take  decisions with regard to offences.  
(2) Offence authorities are administrative and other State authorities and bodies with certain public powers which monitor 
the implementation of laws and regulations setting out offen ces, and the authorities of se lf-governing local communities 
which are authorised to take decisions with regard to offences by virtue of  special regulations.’  
6  Zakon o prekrških , adopted on 18 December 2002, published in the Official Gazette of th e Republic of Slovenia 
No 7/2003. The Law as last amended by the Constitutional Court decision No U-I-69/06-16 of 14 December 2006 
(Official Gazette of the Republ ic of Slovenia No 139/2006). 
7  See Article 16(1), paragraph 2, of the draft law. 
8  See e.g. the ECB’s Convergence Report 2007, p. 19, available on the ECB’s website at www.ecb.int .  
3 their tasks, and in particular that their capacity to carry out their ESCB- or Eurosystem-related tasks 
is not affected9. Accordingly, the ECB expects that Banka  Slovenije will have sufficient human and 
financial resources to carry out its new tasks so that  its capacity to carry out its Eurosystem tasks 
will be unaffected. 
 3. Specific observations  3.1 For reasons of legal clarity, the ECB recommends  reconsidering the content of Article 11 of the 
draft law where the Ministry of Finance is lis ted among the supervisory authorities under the draft 
law while subsequently only the supervisory power s of Banka Slovenije and the customs authority 
are specified (in Sections 4.2 and 4.3). Accord ing to additional clarification provided by the 
consulting authority, the Ministry is listed am ong the supervisory authorities as the appellate body, 
i.e. the body which decides on appeals against th e decisions of the supervisory authorities in 
accordance with the draft law. If this is indeed  the intended meaning, the ECB recommends that 
this should be explicitly set out in Article 11 of the draft law.  
3.2 With respect to Article 11 of the draft law, the ECB would further like to draw the attention of the 
consulting authority to the special regime established in accordance with the Law on Banka 
Slovenije
10 in conjunction with the Law on banking11. Under this regime the decisions of Banka 
Slovenije on individual matters are only subject to the judicial review of the Supreme Court of the 
Republic of Slovenia. While taking into account th e general principle that ministries act as 
appellate bodies with regard to the decisions of the bodies which are under their authority (hence 
the Ministry of Finance’s competence to review the decisions of the Customs Administration), the 
wording of Chapter III of the draft law should clearly provide for the exemption of Banka Slovenije’s decisions from the review by the Ministry. 
3.3 With respect to Article 13 of the draft law, it is  not clear why the competence of Banka Slovenije is 
restricted to supervising the operations of authori sed banks and savings banks ‘in respect of foreign 
exchange cash operations’. Banka Slovenije is  in any event competent to comprehensively 
supervise the operations of banks and savings banks on the basis of Articles 217(1) and 380(1) of 
the Law on banking
12. According to Article 11 of the draft law, the supervisory authorities are to 
                                                      
9  See paragraph 3.3 of ECB Opinion CON/ 2007/29 of 5 October 2007 at the request of  the Portuguese Ministry of Finance 
and Public Administration on a draft decree-law amending the legal framework of credit institutions and financial 
companies, paragraph 2.1 of ECB Opinion CON/ 2007/23 of 2 August 2007 at the request of Banca Na ţională a României 
on a draft law on non-banking financial institutions, and para graph 3.2 of ECB Opinion CON/2007/17 of 18 June 2007 at 
the request of the Italian Ministry of Economic Affairs a nd Finance on a draft law on the regulation and supervision of 
markets and the functioning of the competent independent authorities. 
10  Zakon o Banki Slovenije  – official consolidated versi on, published in the Official Gaze tte of the Republic of Slovenia 
No 72/2006. 
11  Zakon o ban čništvu , adopted on 23 November 2006, published in the Official Gazette of th e Republic of Slovenia 
No 131/2006. 
12  Article 217(1) of the Law on banking: 
 ‘(1) Banka Slovenije is competent and responsible to supe rvise a bank with regard to all services and operations 
performed by the bank in the territory of the Republic of Slovenia, of a Member State and of a third country.’ 
4 supervise operations carried out pursuant to the draft law within their respective fields of 
competence. The general competence of Banka Sl ovenije to monitor implementation of laws and 
regulations issued and measures taken on the basis thereof within the scope of its competences in 
the supervision of banks and savi ngs banks and other persons pursuan t to the law already exists by 
virtue of Article 43(1) of the La w on Banka Slovenije. If the intenti on of Article 13 of the draft law 
is merely to distinguish Banka Slovenije’s powers under the draft law from the powers of the 
customs authorities, the ECB suggests that  the provision be worded accordingly. 
 This opinion will be published on the ECB’s website.   Done at Frankfurt am Main, 23 November 2007. 
  
[signed] 
The President of the ECB  
Jean-Claude TRICHET 
                                                                                                                                                                          
 
 Article 380(1) of the Law on banking: 
 ‘(1) Provisions of other chapters in this Law concerning banks  shall apply to savings banks, unless otherwise stipulated in 
this chapter.’