EN 
 
 
OPINION OF THE EUROPEAN CENTRAL BANK 
of 18 March 2011  
on prevention of late payments  
(CON/2011/25) 
 
Introduction and legal basis  
On 21 February 2011, the European Central Bank (E CB) received a request from the Slovenian Ministry 
of Finance (hereinafter: the ‘Ministry’) for an opi nion on a draft law on prevention of late payments 
(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 indent  of Article 2(1) of Council Decision 98/415/EC of 
29 June 1998 on the consultation of the European Ce ntral 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 Eur opean Central Bank, the Governing Council has adopted 
this opinion. 
 1.  Purpose of the draft law 
1.1 According to the consultation request, the draft law broadly follows the provisions contained in the 
proposed Directive of the European Parliament a nd of the Council on combating late payment in 
commercial transactions (recast) (hereinafter the ‘proposed Directive’), which was aimed at 
replacing Directive 2000/35/EC of the European Par liament and of the Council of 29 June 2000 on 
combating late payment in commercial transactions
2. The ECB notes that the proposed Directive 
was recently adopted as Directive 2011/7/EC of 16 February 2011 on combating late payment in 
commercial transactions (recast)3 and was published on 23 February  2011. Given the above, the 
ECB does not provide its opinion on the transposition of Directive 2011/7/EC4; instead, following 
the request of the Ministry, the ECB limits its views to the impact of the draft law on Banka Slovenije. 
1.2 The draft law regulates measures to prevent late payments as part of the Government’s efforts to 
improve economic and business conditions for small and medium size enterprises. It defines the 
moment of late payment and the consequences of  late payment for contracts concluded between 
                                                 
1  OJ L 189, 3.7.1998, p. 42. 
2  OJ L 200, 8.8.2000, p. 35. 
3  OJ L 48, 23.2.2011, p. 1. 
4  See Article 1(2) of Decision 98/415/EC. 
2 economic operators or between ec onomic operators and public auth orities where one party provides 
goods or services and the other party provides pa yment. The draft law does not apply where 
insolvency proceedings have been initiated ag ainst a debtor pursuant to the law governing 
insolvency proceedings5.  
 2. Duty to consult the ECB 2.1 The ECB notes that the Parliament adopted the draft law on 4 March 2011, eleven days after the 
ECB received the Ministry’s consultation request, without any prior notification to the ECB. The 
Ministry asked for the opinion to be delivered as soon as possible, but did not indicate a specific deadline nor grounds for extreme urgency that  would justify setting a short deadline.  
2.2  The ECB reiterates the position which it h as consistently communicated to the Ministry
6 that even 
cases of particular urgency do not abroga te the duty of the national authorities under 
Articles 127(4) and 282(5) of the Treaty to consult the ECB on national draft legislative provisions 
falling within its fields of competen ce and to allow sufficient time to take into account its views, in 
accordance with Decision 98/415/EC.  
2.3  Pursuant to Article 3(1) and (2) of Decisi on 98/415/EC, the consulting authorities may, if they 
consider it necessary, set the ECB a time limit for the submission of its opinion which may not be less than one month from the date on which the President of the ECB receives notification to this effect. In case of extreme urgency, the time limit may be reduced. In this case, the consulting 
authority must state the reasons for the urgenc y. Had the present consultation been a case of 
particular urgency which would not allow for a normal consultation period, the Ministry should 
have indicated urgency in the consultation request  and asked for a shorter deadline than provided 
for in Decision 98/415/EC for the ECB’s opinion to be adopted. In the absence of an explicit 
deadline for the submission of its opinion, but taking into account the Ministry’s request for it to deliver an opinion as soon as possible, the ECB decided to apply the minimum one-month deadline provided in Article 3(1) of Decision 98/415/EC. 
2.4  The second sentence of Article 4 of Decision 98/ 415/EC provides that the ECB must be consulted 
at an appropriate stage enabling the authority initia ting the draft legislative provision to take into 
consideration the ECB’s opinion before taking its  decision on the substance. The consultation 
should therefore take place at a point in the le gislative process which affords the ECB sufficient 
time to examine the draft legislative provisions and which also enables the relevant national 
authorities to take the ECB’s opinion into consider ation before the provisions are adopted. It also 
follows from Article 3(4) of Decision 98/415/EC  that once a consultation request has been 
submitted to the ECB, Member States are obliged  to suspend the process of adoption of draft 
                                                 
5  See Article 1 of the draft law. 
6  See paragraph 2.2 of Opinion CON/2010/55, paragraph 2.4 of Opinion CON/2008/76 and paragraph 2.1 of Opinion 
CON/2008/92. 
3 legislative provisions, pending receipt of the ECB’s opinion or the expiry of a time limit set for the 
submission of the ECB opinion in accordance with Decision 98/415/EC7.  
2.5  With respect to the present consultation, the dut y to consult the ECB has not been respected by the 
Ministry. The ECB’s comments on the provisions on which it was consulted do not eliminate the breach of the obligation to consult it. The ECB would appreciate it if the Ministry would honour their duty under the Treaty to consult the ECB in the future. 
 3. Independence of Banka Slovenije 
Application of the draft law to Banka Slovenije’s contractual relations 
3.1 The ECB understands that the draft law applies to  Banka Slovenije (which falls under the definition 
of ‘public authorities’) as regards its contractua l relations in the area of administration, in 
particular. However, Article 2(4) of the draft law clarifies that the draft law does not apply to Banka Slovenije where it exercises its exclusive competences pursuant to the law governing Banka 
Slovenije or any other laws or Union regulati ons laying down exclusive competences of Banka 
Slovenije. The ECB welcomes this provision as it ensu res that the draft law does not interfere with 
the tasks of the European System of Central Banks (ESCB) and the Eurosystem carried out by Banka Slovenije in accordance with the Treaty and th e Statute of the European System of Central 
Banks and of the European Central Bank, in par ticular the implementation of the monetary policy 
of the Union. For sake of clarity, the draft law could be further improved by referring precisely to Banka Slovenije’s competences as part of the ESCB and the Eurosystem.  
Supervision of the implementation of the draft law 
3.2 Pursuant to Article 23 of the draft law, inspect orates and other authorities, in accordance with their 
competences, supervise the implementation of the draft law and identify re lated breaches. Pursuant 
to Article 24(3) of the draft law, each of these s upervisory authorities has th e power to decide on 
offences for identified breaches of the draft law in the areas under their supervision. 
3.3 Under the draft law Banka Slovenije is also s ubject to supervision under the provisions referred to 
paragraph 3.2. In order to fully respect central bank independence, it should be made clear that any 
supervision of Banka Slovenije’s compliance with the draft law should observe its status as an 
independent central bank as granted by the Treaty.  
3.4 The provisions referred to paragraph 3.2 are not sufficiently clear as regards Banka Slovenije’s 
role. If it is intended that, in the context of exer cising its function of banking supervisor, the tasks 
of Banka Slovenije are extended to supervision of the implementation of the draft law and to 
deciding on breaches in this context by banks,  savings banks and other entities under its 
supervision in accordance with law, it should be expressly stated. 
                                                 
7  See Title IV, Section 1 of the Guide to consultation of th e European Central Bank by national authorities regarding draft 
legislative provisions, available on the ECB’s website at www.ecb.europa.eu.  
4 3.5 If the draft law indeed allocates a new task as referred to in paragraph 3.4 to Banka Slovenije, it 
will have to commit additional human and financial resources to carry ou t this task. In this context, 
the ECB has emphasised that ‘Member States ma y not put their [national central banks] in a 
position where they have insufficient financial r esources to carry out their ESCB or Eurosystem-
related tasks, as applicable’8. The ECB has consistently expressed its concern that, when allocating 
additional tasks to national central banks, it must be ensured that they have sufficient human and 
financial resources, both in terms of quantity and quality, for all of thei r tasks, and in particular that 
their capacity to fulfil their ESCB- or Eu rosystem-related tasks is not affected9. Accordingly, the 
ECB expects that Banka Slovenije will have suffi cient human and financial resources for any new 
tasks so that its capacity to perform its  Eurosystem tasks will remain unaffected. 
 This opinion will be published on the ECB’s website.   Done at Frankfurt am Main, 18 March 2011. 
 
[signed] 
 
The President of the ECB 
Jean-Claude TRICHET 
                                                 
8  See e.g. the ECB’s Convergence Report May 2010, p. 21, available on the ECB’s we bsite at www.ecb.europa.eu. 
9  In the context of consultations by Slovenian authorities, see e.g. paragraph 2.3 of Opinion CON/2007/38.