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)
Date: 2007-11-23
Institutions: European Central Bank
Subjects: Slovenia, banking supervision, central bank, foreign currency, national law

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 foreign 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 European 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 competent authorities and the penalties for infringements 

as  required  by  Regulation  (EC)  No  1889/2005  on  controls  of  cash  entering  or  leaving  the 
Community2. 

1.2  Pursuant to Article 13 of the draft law, Banka Slovenije is to supervise the operations of authorised 

banks  and  savings  banks  in  respect  of  foreign  exchange  cash  operations,  and  other  persons 

authorised to carry out foreign exchange cash transactions. This supervisory function already exists 
pursuant to Article 583 of the present Law on foreign exchange4 which will be repealed by the draft 

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OJ L 189, 3.7.1998, p. 42.  
OJ L 309, 25.11.2005, p. 9. 
Article  58  of  the  Law  on  foreign  exchange:  ‘Banka  Slovenije  shall  supervise  the  operations  of  authorised  banks  and 
savings banks and, in respect of foreign exchange cash operations, also of other persons authorised to carry out foreign 
exchange cash transactions.’ 

 
 
 
 
                                                      
law.  However,  Article  13 of  the  draft  law,  read  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  Slovenije  finds  that  the  conditions  it  prescribes  for 

carrying out foreign exchange transactions have been breached, it should also take decisions with 

regard to such offences and impose appropriate penalties 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  functions  of  national  central 

banks  (NCBs)  specified  in  the  Statute  of  the  European  System  of  Central  Banks  and  of  the 

European  Central  Bank.  However,  without  prejudice  to  the  Governing  Council’s  powers  under 

Article  14.4  of  the  Statute  of  the  ESCB,  the  ECB  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  Banka  Slovenije,  and  would  not  be  regarded  as 

being part of the ESCB’s functions. 

2.2  The  ECB  understands  that  the  underlying  reason  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  this  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 this context, the ECB has emphasised that ‘Member 

States may not put their NCBs in a position where they 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 additional 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 

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Zakon o deviznem poslovanju, adopted on 23 March 1999, published in the Official Gazette of the Republic of Slovenia 
No 23/1999. The Law as last amended by the Law on the introduction of the euro (Official Gazette of the Republic of 
Slovenia No 114/2006). 
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 offences, and the authorities of self-governing local communities 
which are authorised to take decisions with regard to offences by virtue of special regulations.’  
Zakon  o  prekrških,  adopted  on  18  December  2002,  published  in  the  Official  Gazette  of  the  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 Republic of Slovenia No 139/2006). 
See Article 16(1), paragraph 2, of the draft law. 
See e.g. the ECB’s Convergence Report 2007, p. 19, available on the ECB’s website at www.ecb.int.  

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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 listed among the supervisory authorities under the draft 

law while subsequently only the supervisory powers of Banka Slovenije and the customs authority 

are  specified  (in  Sections  4.2  and  4.3).  According  to  additional  clarification  provided  by  the 

consulting authority, the Ministry is listed among the supervisory authorities as the appellate body, 

i.e.  the  body  which  decides  on  appeals  against  the  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 
Slovenije10  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  the  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 authorised 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 banking12. According to Article 11 of the draft law, the supervisory authorities are to 

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12  

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 Naţională a României 
on a draft law on non-banking financial institutions, and paragraph 3.2 of ECB Opinion CON/2007/17 of 18 June 2007 at 
the request of the Italian Ministry of Economic Affairs and Finance on a draft law on the regulation and supervision of 
markets and the functioning of the competent independent authorities. 
Zakon  o  Banki  Slovenije  –  official  consolidated  version,  published  in  the  Official  Gazette  of  the  Republic  of  Slovenia 
No 72/2006. 
Zakon  o  bančništvu,  adopted  on  23  November  2006,  published  in  the  Official  Gazette  of  the  Republic  of  Slovenia 
No 131/2006. 
Article 217(1) of the Law on banking: 
‘(1)  Banka  Slovenije  is  competent  and  responsible  to  supervise  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.’ 

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supervise  operations  carried  out  pursuant  to  the  draft  law  within  their  respective  fields  of 

competence. The general competence of Banka Slovenije 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 savings banks and other persons pursuant to the law already exists by 

virtue of Article 43(1) of the Law on Banka Slovenije. If the intention 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.’ 

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