Opinion of the European Central Bank of 16 November 2005 at the request of the Ministry of Justice of the Slovak Republic on a draft law on criminal liability of legal persons and on amendments to certain laws (CON/2005/47)
Date: 2005-11-16
Institutions: European Central Bank
Subjects: Slovakia, counterfeiting, criminal liability, legal person, money, national law

EN 

OPINION OF THE EUROPEAN CENTRAL BANK 

of 16 November 2005  

at the request of the Ministry of Justice of the Slovak Republic on a draft law 

on criminal liability of legal persons and on amendments to certain laws 

(CON/2005/47) 

1.  On  6  October  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 criminal liability of legal persons 

and on amendments to certain laws (hereinafter the ‘draft law’). 

2. 

The ECB’s competence to deliver an opinion is based on the second indent of Article 105(4) of the 

Treaty  establishing  the  European  Community  and,  in  particular,  on  the  first,  second  and  third 

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 contains provisions concerning currency matters, means of payment and 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  draft  law  forms  part  of  the  general  reform  of  Slovak  criminal  law.  It  has  several  objectives. 

First,  it  implements  a  number  of  Community  legal  acts  such  as  Council  Framework  Decision  of 

29 May 2000  (2000/383/JHA)  on  increasing  protection  by  criminal  penalties  and  other  sanctions 
against  counterfeiting  in  connection  with  the  introduction  of  the  euro2  and  Council  Framework 

Decision of 28 May 2001 (2001/413/JHA) combating fraud and counterfeiting of non-cash means 
of payment3. Second, as a lex specialis to the recently adopted Slovak Criminal Code4 and Code of 
Criminal  Procedure5,  it  regulates  the  concept  of  criminal  liability  of  legal  persons  in  the  Slovak 

legal order by way of a separate law. According to the general part of the explanatory memorandum 

to  the  draft  law,  the  draft  law  lays  down  the  conditions  defining  the  criminal  liability  of  legal 

persons,  the  types  of  sanctions  and  protective  measures  that  can  be  imposed  on  them  and  the 

procedure to be followed by the law-enforcement authorities in cases where the indicted person is a 

legal person.  

1  
2  
3  
4  
5  

OJ L 189, 3.7.1998, p. 42. 
OJ L 140, 14.6.2000, p. 1. 
OJ L 149, 2.6.2001, p. 1. 
Criminal Code of 20 May 2005, Act No 300/2005 Coll. (enters into force on 1 January 2006). 
Code of Criminal Procedure of 24 May 2005, Act No 301/2005 Coll. (enters into force on 1 January 2006). 

 
 
 
                                                 
4. 

The ECB takes note that the draft law not only excludes the Slovak State and State authorities, but 

also Národná banka Slovenska (NBS) from its scope of application, since, as the explanatory note 

to  Article  2(1)  of  the  draft  law  states,  it  is  unreasonable  to  expect  the  State  to  sanction  itself 

including its authorities and NBS. The ECB understands that the Slovak legislator, by listing NBS 

separately from the Slovak State and State authorities, wishes to differentiate clearly between the 

State and State authorities on the one hand, and NBS on the other. 

5. 

The  ECB  welcomes  the  implementation  of  Council  Framework  Decision  2000/383/JHA  and 

Council  Framework  Decision  2001/413/JHA.  As  early  as  1998,  the  ECB  recommended  to  the 

Council, the Parliament, the Commission and the Member States that certain  measures should be 
adopted  to  enhance  the  legal  protection  of  euro  banknotes  and  coins6.  As  far  as  the  exclusion  of 

NBS  from  the  scope  of  the  draft  law  is  concerned,  the  ECB  would  like  to  point  out  two  specific 

issues. First, the exemption of NBS from the scope of criminal responsibility does not as such have 

an impact on the principle of central bank independence. Second, the ECB welcomes the intention 

of  the  Slovak  legislator  to  differentiate  in  the  draft  law  clearly  between  the  State  and  the  State 

authorities on the one hand, and NBS on the other. While, as also pointed out in the explanatory 

note to Article 2(1) of the draft law, NBS safeguards the tasks of the State to a considerable extent, 

the ECB would like to emphasise that NBS is a member of the European System of Central Banks 

under the provisions of the Treaty and the Statute of the European System of Central Banks and of 

the  European  Central  Bank.  The  distinction  made  in  the  draft  law  between  NBS  and  the  Slovak 

State and State authorities would strengthen the principle of central bank independence laid down 

in Article 108 of the Treaty. In order to make this distinction clearer, however, Article 2(1) of the 

draft  law  could  be  drafted  more  unambiguously  to  state  that  NBS  is  not  a  State  authority.  This 
statement  would  comply  fully  with  the  Slovak  Constitution7  and  NBS’s  statute8,  which  refer  to 

NBS as ‘the independent central bank of Slovak Republic’. 

6. 

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

Done at Frankfurt am Main, 16 November 2005. 

[signed] 

The President of the ECB 

Jean-Claude TRICHET 

6  

7  
8  

Recommendation  of  the  Governing  Council  of  the  European  Central  Bank  of  7  July  1998  regarding  the  adoption  of 
certain measures to enhance the legal protection of euro banknotes and coins (OJ C 11, 15.1.1999, p. 13). 
Article 56 of the Constitution of the Slovak Republic No 460/1992 Coll., as last amended. 
Article 1(1) of the Act No 566/1992 Coll. on Národná banka Slovenska, as last amended. 

2