Opinion of the European Central Bank of 3 August 2005 at the request of the Ministry of Justice of the Slovak Republic on a draft law on lobbying and on amendments to certain laws (CON/2005/25)
Date: 2005-08-03
Institutions: European Central Bank
Subjects: Slovakia, central bank, conflict of interest, interest group, national law

EN 

OPINION OF THE EUROPEAN CENTRAL BANK 

of 3 August 2005  

at the request of the Ministry of Justice of the Slovak Republic  

on a draft law on lobbying and on amendments to certain laws 

(CON/2005/25) 

1.  On 24 June 2005 the European Central Bank (ECB) received a request from the Ministry of Justice 

of  the  Slovak  Republic  for  an  opinion  on  a  draft  law  on  lobbying  and  on  amendments  to  certain 

laws (hereinafter the ‘draft law’).  

2. 

The ECB’s competence to deliver an opinion is based on 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 contains provisions concerning a 

national central bank (NCB). 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. 

3. 

The  main  purpose  of  the  draft  law  is  to  establish  a  legal  framework  to  regulate  lobbying  as  a 

business activity in the Slovak Republic, thereby  ensuring the transparency and accountability of 

public officials and establishing the areas in which lobbying is and is not permissible. It lays down 

both the obligations of lobbyists and the obligations and prohibitions to which public officials who 

are  exposed  to  lobbying  are  subject.  In  particular,  Article  9(3)  of  the  draft  law  establishes  that 

certain  public  officials  have  to  publish  their  work  programme  for  the  previous  month  before  the 

tenth day of each month. According to Article 9(4) of the draft law, a work programme means a 

timetable of working meetings at which lobbying contact took place, giving details of the place and 

date of meetings and of the regulation, document or matter to which the meeting related. Failure to 

comply  with  the  obligations  and  prohibitions  laid  down  by  the  draft  law  may  lead  to  sanctions 

including dismissal of the public official concerned. 

4. 

The list of public officials who may be exposed to lobbying contained in Article 2(4) of the draft 

law  includes  the  Governor  of  Národná  banka  Slovenska  (NBS)  and  other  members  of  NBS’s 

highest  governing  body,  the  Bank  Board  (hereinafter  the  ‘Bank  Board’).  The  draft  law  provides 

that  the  Governor  of  NBS,  like  some  other  public  officials,  will  be  obliged  to  publish  details  of 

their work programme for the previous month on the internet by the tenth day of each month. 

5. 

The ECB therefore considers that the draft law raises concerns as far as the independence of both 

NBS  and  its  Governor  is  concerned.  Article  108  of  the  Treaty  establishing  the  European 

1  

OJ L 189, 3.7.1998, p. 42. 

 
 
 
                                                 
Community  and  Article  7  of  the  Statute  of  the  European  System  of  Central  Banks  and  of  the 

European  Central  Bank  establish  the  principle  of  institutional  independence  which  prohibits  the 

government  of  a  Member  State  from  seeking  to  influence  the  members  of  the  decision-making 

bodies of the NCBs whose decisions may have an impact on the fulfilment by the NCBs of their 

tasks relating to the European System of Central Banks (ESCB). Under Slovak law, the principle of 

institutional independence is enshrined in relation to NBS in Article 56 of the the Constitution of 

the Slovak Republic No 460/1992 Coll., as last amended and Article 1(1) of the Act No 566/1992 

Coll. on Národná banka Slovenska, as last amended (hereinafter the ‘NBS Act’). 

6.  While  the  draft  law  provides  for  some  exclusions  to  the  reporting  obligation  laid  down  in 

Article 9(3),  it  cannot  be  excluded  that  this  obligation  covers  activities  of  the  Governor  of  NBS 

with  regard  to  ESCB-related  tasks.  The  ECB  considers  that  this  obligation  conflicts  with  the 

principle of institutional independence established by the Treaty and the Statute and under Slovak 

law. Central banking tasks may also require informal dialogue between an NCB and third parties. 

The reporting obligation laid down in Article 9(3) of the draft law therefore comes close to an ex 

ante consultation requirement, which could provide the Slovak Government with a mechanism to 

influence NBS’s decision-making.  

7. 

The ECB also considers that Article 9(3) of the draft law impinges on the personal independence of 

the Governor of NBS. Article 14.2 of the Statute provides for safeguards against arbitrary dismissal 

of  the  Governors  of  NCBs  stating  that  they  may  only  be  dismissed  if  they  no  longer  fulfil  the 

conditions  required  for  performance  of  their  duties  or  if  they  have  been  guilty  of  serious 

misconduct. Under the draft law the Governor of NBS may be dismissed if they fail to comply with 

the  reporting  obligation  imposed  by  Article  9(3)  of  the  draft  law,  even  if  the  requirements  of 

Article 14.2 of the Statute are not fulfilled. 

8. 

The ECB understands that the intention behind the draft law is to make NBS subject to principles of 

transparency  and  accountability  while  preventing  conflicts  of  interest  of  members  of  the  Bank 

Board. However, the ECB considers that current Slovak legislation already provides for sufficient 

safeguards  against  such  conflicts  of  interest.  In  particular,  Article  7(7)  of  the  NBS  Act  excludes 

members  of  the  Bank  Board  from  performing  lobbying  contact  (as  defined  in  Article  2(2)  of  the 

draft law) as it amounts to an explicit prohibition on them doing so. Moreover, other provisions of 

Article 7 of the NBS Act support this view. Article 7(5) of the NBS Act provides that a member of 

the Bank Board must not prefer his personal interest to the public interest and must abstain from 

anything which might conflict with the performance of the office of a member of the Bank Board. 

Furthermore,  Article  7(6)  of  the  NBS  Act  states  that  membership  of  the  Bank  Board  is 

incompatible  with  occupying  any  post  or  performing  any  activity  (be  it  in  the  public  or  private 

domain, remunerated or unremunerated) which may give rise to a conflict of interest with the duties 

of a member of the Bank Board. Moreover, issues relating to conflicts of interest of members of the 

Bank Board are regulated separately under the Constitutional Act No 357/2004 Coll. on protection 

of  public  interest  in  the  performance  of  the  office  of  public  functionaries  (hereinafter  the 

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‘Constitutional Act’) which contains a definition of public functionaries which covers members of 

the Bank Board. 

9. 

The ECB takes note that Article 2(3) of the draft law provides for exclusions from the definition of 

a lobbying contact. These include communication between public officials, public authorities and 

their employees (Article 2(3)(a)), the raising of comments on a draft regulation or document during 

comments  proceedings  and  communication  in  respect  of  such  comments  in  accordance  with 

provisions governing comments proceedings (Article 2(3)(e)). Moreover, disclosure of information 

is also excluded if it is contrary to ‘binding legal acts of the European Communities and European 

Union or an international treaty having binding effect on the Slovak Republic’, referring directly to 
Article 38 of the Statute2. 

10.  The ECB considers that the wording of Article 2(3)(a) and (e) of the draft law is unclear. First, it is 

arguable  whether  under  the  draft  law,  communication  between  public  officials  and  public 

authorities  and  their  employees  also  includes  communication  with  Community  institutions  and 

their officials, and in particular the ECB and its employees. In this respect, the ECB observes that 

since  NBS  became  a  member  of  the  ESCB  on  1  May  2004,  the  ECB  and  its  employees  have 

communicated regularly with NBS in relation to the performance of the objectives and tasks of the 

ESCB by the NCBs. Second, the ECB notes that Article 2(3)(e) of the draft law, which excludes 

comments proceedings from the scope of lobbying contacts, does not clearly refer to the advisory 
functions  of  the  ECB  as  provided  for  in  the  Treaty3  and  in  the  Statute4.  According  to  the  latter 

provisions,  which  are  reiterated  in  Article  2  of  Council  Decision  98/415/EC,  national  authorities 

must consult the ECB regarding any draft legislative provision in its fields of competence and the 

ECB  may  submit  an  opinion  to  the  relevant  national  authorities  on  matters  in  its  fields  of 

competence. The ECB notes that unless its advisory role is explicitly referred to in the draft law in 

the context of excluding communication in the course of comments proceedings from the scope of 

lobbying contact, this opinion itself could be regarded as lobbying contact within the meaning of 

the draft law. The ECB therefore considers that the two exclusions provided for under Article 2(3) 

of  the  draft  law  should  be  amended  to  explicitly  refer  to  communication  with  Community 

institutions  and  their  officials  and  to  consultations  with  Community  institutions,  e.g.  to  advisory 

functions performed by the ECB in its fields of competence. 

11.  As  a  separate  issue,  the  ECB  welcomes  the  provisions  of  the  draft  law  prohibiting  lobbying  in 
relation to certain matters5. In particular, the prohibition on lobbying in relation to decision-making 

by public authorities when issuing licences, permits, authorisations and other individual legal acts 

will  safeguard  the  independence  of  decision-making  by  NBS,  which  will  perform  supervision  of 

the whole financial market in the Slovak Republic from 1 January 2006. 

2  

3  
4  
5  

The draft law cross refers to Article 11(1)(f) of Act No 211/2000 Coll. on free access to information and on amendments 
to certain laws, as amended (Freedom of Information Act). 
Article 105(4) of the Treaty. 
Article 4 of the Statute. 
Article 8 of the draft law. 

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12. 

In conclusion, the ECB considers that the draft law should be amended to exclude from its scope 

any  member  of  NBS’s  decision-making  bodies,  at  least  to  the  extent  that  they  are  performing 

ESCB-related tasks. 

13.  The  ECB  would  appreciate  it  if  the  Slovak  authorities  kept  it  informed  of  any  proposed 

amendments to the draft law affecting the issues addressed in this opinion. 

14.  This opinion will be published on the ECB’s website. 

Done at Frankfurt am Main, 3 August 2005. 

[signed] 

The President of the ECB 

Jean-Claude TRICHET 

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