EN ECB-PUBLIC  
 
 
OPINION OF THE EUROPEAN CENTRAL BANK 
of 7 December 2012  
on the Law on banking 
(CON/2012/101) 
 
Introduction and legal basis 
On 14 November 2012, 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 banking (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 and the third and sixth indents 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 and to rules applicable 
to financial institutions insofar as they materially influence the stability of financial institutions and 
markets. In accordance with the firs t 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 measures proposed in the draft law are ai med at addressing the impact of the deepening 
financial crisis on the banking system. In particul ar, the crisis has had an adverse effect on the 
ability of banks to obtain appropriate financing and,  therefore, to comply with the capital adequacy 
requirements of Banka Slovenije and the European  Banking Authority. Accordingly, the draft law 
provides for the establishment of a legal regime to address these issues. 
1.2 Pursuant to the draft law, Banka Slovenije, as the banking supervisory authority, may take actions 
against a bank that breaches risk management rules and capital requirements. It may also act against a bank where it considers it likely that a breach will occur on the basis of defined negative 
trends in a bank. In addition, Banka Slovenije may act when it considers that the financial system’s 
stability is endangered. The draft law accordingly provides for a clearer definition of the supervisory measures and, in addition to ame nding some of the existing measures that Banka 
Slovenije may utilise in its supervisory capacity , introduces new supervisory measures, including 
the following: (a) Banka Slovenije may appoint an au thorised person to a bank to act pursuant to 
Banka Slovenije’s instructions in order to impr ove a bank’s risk management strategy or to 
effectively implement measures to eliminate brea ches. Under certain conditions, the authorised 
                                                            
1  OJ L 189, 3.7.1998, p. 42.  
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2 person may also be given the powers of a bank ’s management board member; and (b) Banka 
Slovenije may transfer a bank’s assets and liabiliti es to an acquiring company in cases of increased 
risk in a bank. 
1.3 The scope of Banka Slovenije’s s upervisory powers is also extended, inter alia , with regard to the 
members of a banks’ supervisory board. Under the draft law, Banka Slovenije may prohibit 
supervisory board members from performing their functions where the member breaches supervisory board member’s duties or does not m eet the conditions necessary for appointment or 
there is an obstacle to the appointment. 
1.4 In addition, the draft law amends  the Law on banking in relation to, inter alia , (a) the deposit 
guarantee scheme, (b) the regulation of non-cash cont ributions for banks’ share capital increase, (c) 
the supervisory order by Banka Slove nije to a bank to increase its capital, (d) exemptions to the 
obligation to submit a mandatory  takeover bid. Moreover, the draft law introduces certain 
provisions regarding the Law on Slovenia’ s measures to strengthen bank stability. 
 2. General observations The ECB welcomes the Slovenian authorities’ initiati ve to improve and introduce measures on capital 
requirements for banks, their risk management and th eir resolution. As the Ministry of Finance has 
explained in its accompanying memorandum to the draf t law, the proposed amendments regarding bank 
resolution were prepared on the basis of the Co mmission’s proposal for a directive on recovery and 
resolution of banks
2. In addition to this proposal, further re lated Union legislation is expected soon3. The 
ECB points out that national laws and regulations w ill have to be brought into line with such Union 
legislation once it is adopted. Finally, national legisl ation will have to be brought into line also with 
anticipated Union legislation, including the Proposal  for a Council Regulation conferring specific tasks on 
the ECB concerning policies relating to the pr udential supervision of credit institutions4, and the 
upcoming establishment of a single resolution mechan ism, focused on a Europ ean resolution authority, 
which the ECB fully supports, as highlighted in Opinion CON/2012/96. 
 3. Specific observations  
3.1 Performance of new tasks by Banka Slovenije under the draft law  
                                                            
2  See Commission’s Proposal for a Directiv e establishing a framework for the recovery  and resolution of credit institutions 
and investment firms and amending Council Directives 77/91/EEC and 82/ 891/EC, Directives 2001/24/EC, 2002/47/EC, 
2004/25/EC, 2005/56/EC, 2007/36/EC and 2011/35/EC and Re gulation (EU) No 1093/2010 (COM(2012) 280 final). 
3  See (a) Proposal for a Directive of th e European Parliament and of the Council  on the access to the activity of credit 
institutions and the prudential supervision of credit instituti ons and investment firms and amending Directive 2002/87/EC 
of the European Parliament and of the Council on the suppl ementary supervision of credit institutions, insurance 
undertakings and investment firms in a financial conglomerate (COM(2011) 453 fi nal); (b) Proposal for a Regulation of 
the European Parliament and of the Council on prudential requirements for credit institutions and investment firms 
(COM(2011) 452 final); (c) Proposal for a Directive of the European Parliament and of the Council on Deposit Guarantee 
Schemes (recast) (C OM(2010) 368 final). 
4  See COM(2012) 511 final. 
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3 The draft law assigns new supervisory tasks to Banka Slovenije, including, inter alia , the 
supervision of members of banks’ supervisory boar ds and the power to order the transfer of a 
bank’s assets and liabilities to an acquiring comp any. The ECB welcomes the fact that Banka 
Slovenije will be given additiona l powers to contribute to the e fficient supervision of banks by 
taking timely action to identify and resolve releva nt issues, thus ensuring financial stability. 
Nonetheless, widening the scope of Banka Slovenije’s  tasks should not affect its ability to carry out 
its ESCB-related tasks from an opera tional and financial perspective5. 
In addition, in performing the new powers, Banka Slovenije should ensure appropriate functional 
separation of resolution activities from its supervisor y or other activities in order to avoid possible 
conflicts of interest between these functions, in line with the Commission’s proposal for a directive 
on recovery and resolution of banks6. 
3.2 The draft law and the Law on Slovenia’s measures to strengthen bank stability  
 In parallel to the draft law, the Slovenian aut horities have prepared the Law on Slovenia’s measures 
to strengthen bank stability7, which aims to strengthen the stability of the financial system as a 
whole by improving the stability of banks. The ECB was consulted on this Law and adopted 
Opinion CON/2012/71, in which it suggested further clarifying how the measures under the Law on Slovenia’s measures to strengthen bank stability fit into the system of supervisory measures taken by Banka Slovenije pursuant to the Law on banking
8. Given that the draft law further 
broadens the scope for supervisor y action by Banka Slovenije and also entrusts it with resolution 
powers, including in cases of endangerment of the fina ncial system’s stability, the ECB notes that it 
would be beneficial to ensure that the Law on Slovenia’s measures to strengthen bank stability and 
the Law on banking are aligned to avoid any pot ential conflict between both laws and thereby 
Banka Slovenije’s ability to fulfil its regulator y and supervisory respons ibilities, including under 
the Law on banking, as amended by the draft law. 
3.3 Endangered financial system stability  
 The proposed Article 254 of the Law on banking pr ovides that, if financial system stability in 
Slovenia is or might be jeopardi sed, Banka Slovenije is to immediately notify the Ministry of 
Finance as well as other national authorities. The E CB is of the view that if these risks have a 
systemic dimension, i.e. when there is a risk of disruption in the financial system with the potential 
to have serious negative consequences for the internal market and the real economy9, the European 
Systemic Risk Board (ESRB) should also be info rmed of these developments as well as of the 
                                                            
5  See, for example, Opinions CON/2011/46 and CON/2010/46.  All Opinions are published on the ECB’s website at 
www.ecb.europa.eu. 
6  See Article 3 of COM(2012) 280 final. 
7  Zakon o ukrepih Republike Sloven ije za krepitev stabilnosti bank . 
8  See paragraph 4.2 of Opinion CON/2012/71. 
9  See Regulation (EU) No 1092/2010 of the European Parlia ment and of the Council of 24 November 2010 on European 
Union macro-prudential oversight of the fi nancial system and establishing the Eu ropean Systemic Risk Board (OJ L 331, 
15.12.2010, p. 1). 
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4 substance and timeline of the actions taken to address such risks at national level10. Furthermore, it 
would be beneficial for financial stability to  establish an effective macro-prudential policy 
framework at a national level, where Banka Slovenije plays a key role11, 12. 
3.4 Prompt and efficient action  
 Under the draft law, Banka Slovenije may impose measures in relation to a bank’s share capital 
increase, subject to a procedure involving shareholde rs and the Ministry of Finance before and after 
imposition of the measure. The ECB is of the view  that the procedures for imposing such measures 
should be as short and simple as possible to allow for prompt and efficient supervisory action.  
3.5 Bank share capital increase against non-cash contributions  
 The draft law clarifies when an increase of banks’ share capital using non-cash contributions is 
allowed. In addition, Banka Slovenije’s pr ior approval must be obtained for non-cash 
recapitalisation, with such approval being b ased on the eligibility criteria for non-cash 
contributions. These criteria are to be set out in an implementing regulation adopted by Banka 
Slovenije. In Opinion CON/2012/48, the ECB recommended specifying eligibility criteria for non-cash contributions as these will be used as the exemp tion to the general rule requiring banks’ shares 
to be paid in cash. In this context, the ECB we lcomes the proposed clarification, but notes that 
issuance of shares against cash contributions is preferred for financial stability reasons
13. 
 This opinion will be published on the ECB’s website.   Done at Frankfurt am Main, 7 December 2012. 
 
[signed] 
 
The President of the ECB 
Mario DRAGHI 
 
                                                            
10  See Opinion CON/2012/44. 
11 See Recommendation ESRB/2011/3 of the European Systemic  Risk Board of 22 December 2011 on the macro-prudential 
mandate of national authorities (OJ C 41, 14.2.2012, p. 1).  
12  See Opinion CON/2012/80. 
13  See paragraphs 4.1.1 and 4.1.2 of Opinion CON/2012/48.