Opinion of the European Central Bank of 29 September 2009 on payment services (CON/2009/75)
Date: 2009-09-29
Institutions: European Central Bank
Subjects: Slovakia, banking supervision, consumer protection, electronic money, national law, payment system

EN 

OPINION OF THE EUROPEAN CENTRAL BANK 

of 29 September 2009  

on payment services 

(CON/2009/75) 

Introduction and legal basis 

On  5  August  2009  the  European  Central  Bank  (ECB)  received  a  request  from  the  Slovak  Ministry  of 

Finance for an opinion on a draft law on payment services and on amendments to certain laws (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 second to fifth 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 means of payment, the national central bank, statistics, 

and payment and settlement systems. 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  main  purpose  of  the  draft  law  is  to  transpose  into  Slovak  law  Directive  2007/64/EC  of  the 

European Parliament and of the Council of 13 November 2007 on payment services in the internal 

market  amending  Directives  97/7/EC,  2002/65/EC,  2005/60/EC  and  2006/48/EC  and  repealing 
Directive 97/5/EC (hereinafter the ‘Payment Services Directive’)2. The draft law also implements 

Directive 98/26/EC of the European Parliament and of the Council of 19 May 1998 on settlement 

finality  in  payment  and  securities  settlement  systems  (hereinafter  the  ‘Settlement  Finality 
Directive’)3  and  Directive  2000/46/EC  of  the  European  Parliament  and  of  the  Council  of 

18 September  2000  on  the  taking  up,  pursuit  of  and  prudential  supervision  of  the  business  of 
electronic money institutions (hereinafter the ‘Electronic Money Institutions Directive’)4. As stated 

in  its  explanatory  memorandum,  the  draft  law  goes  beyond  the  implementation  of  the 

abovementioned  Community  directives  and  focuses  in  particular  on  consumer  protection  in  the 

field of payment systems.  

1 
2 
3 

4 

OJ L 189, 3.7.1998, p. 42.  
OJ L 319, 5.12.2007, p. 1. 
OJ L 166, 11.6.1998, p. 45. Directive 98/26/EC has already been transposed into Slovak law by Law No 510/2002 Coll. 
on payment systems (zákon o platobnom styku), which the draft law will repeal. 
OJ L 275, 27.10.2000, p. 39. Directive 2000/46/EC has already been transposed by the abovementioned Law on payment 
systems.  

 
 
 
 
                                                 
1.2  The  focus  of  this  opinion  is  on  the  provisions  of  the  draft  law  that  relate  to  means  of  payment, 

Národná banka Slovenska, statistics and payment and settlement systems that go beyond the strict 

implementation of the abovementioned Community directives. In this opinion the ECB provides no 

assessment of the overall implementation in Slovakia of those directives. 

2. 

General observations 

The aim of the draft law is to comprehensively govern payment services, electronic money, and payment 

and  settlement  systems  in  Slovakia  and,  by  implementing  the  Payment  Services  Directive,  to  fulfil  the 

regulatory pre-conditions for the introduction of the Single European Payment Area. 

Despite the wording of Article 1(3)(h) of the draft law and the differences in the scopes of the Payment 

Services  Directive,  on  the one  hand,  and  the  Settlement  Finality Directive,  on  the  other  hand,  the  ECB 

understands  that  it  should  be  interpreted  in  the  light  of  Article  1(1)(b)  of  the  draft  law.  However,  for 

reasons  of  legal  certainty,  it  would  be  welcomed  if  Article  1(3)(h)  could  be  explicitly  clarified  on  this 

point  to  avoid  any  doubt  as  to  whether  the  comprehensive  approach  of  the  draft  law  could  lead  to  the 

exclusion of the application of the implementing provisions for the Settlement Finality Directive.  

3. 

Specific observations 

3.1  New tasks and sufficient human and other resources 

The draft law acknowledges Národná banka Slovenska’s oversight and supervision tasks in respect 

of payment systems and payment institutions. However, in order for Národná banka Slovenska to 

perform these tasks in parallel with its existing Eurosystem-related tasks and other tasks assigned to 
it by national law, it is essential that it has sufficient human and other resources5. 

3.2  Operation and oversight of payment systems  

Article  45(3)(a)  of  the  draft  law  defines  ‘payment  systems’  as  such  systems  as  are  operated  by 

Národná banka Slovenska. Article 47(1) lists possible participants in payment systems. The ECB 

points  out  that,  in  respect  of  Národná  banka  Slovenska’s  component  in  TARGET2,  the  list  of 

participants  is  more  narrowly  defined  in  Národná  banka  Slovenska’s  Decision  9/2008  of 

25 November 2008 on conditions for participation in TARGET2-SK, in accordance with Article 4 
of  the  Harmonised  Conditions  for  participation  in  TARGET26.  Therefore,  the  ECB  recommends 

amending Article 47(1) to clarify that the list of participants in payment systems may be defined in 

more detail in payment system rules. 

Article 45(8) of the draft law lays down the oversight requirements for payment system operators, 

central  securities  depositories  and  payment  service  providers  in  accordance  with  international 

oversight standards and evaluation criteria and oversight standards and procedures established by 

5 

6 

See paragraph 3.1 of ECB Opinion CON/2009/27 and paragraph 3 of ECB Opinion CON/2009/36. All ECB opinions are 
published on the ECB’s website at www.ecb.europa.eu. 
See  Annex  II  to  Guideline  ECB/2007/2  of  26  April  2007  on  a  Trans-European  Automated  Real-time  Gross  settlement 
Express Transfer system (TARGET2) (OJ L 237, 8.9.2007, p. 1). 

2 

 
 
 
 
 
                                                 
the  ECB,  the  European  System  of  Central  Banks  (ESCB)  and/or  other  European  Economic  Area 

(EEA) Member State authorities designated under the laws of the relevant EEA Member State. The 

references to the applicable oversight standards are too broad, so the ECB suggests that the current 

wording  of  the  first  sentence  of  Article  45(8)  should  be  restricted  to  the  applicable  Eurosystem 

oversight standards and any supplementary standards adopted by Národná banka Slovenska. 

Under  Article  61(3)  of  the  current  Law  on  payment  systems,  an  entity  applying  for  a  licence  to 

operate  a  payment  system  governed  by  Slovak  law  must  fulfil  certain  criteria,  including  a 
requirement to be a joint-stock company with a registered office in Slovakia7. Article 57(2)(a) of 

the  draft  law  amends  the  criteria  by  requiring  the  entity  to  be  a  joint-stock  company  with  a 

registered office in an EEA Member State. 

Concerning EEA operators of payment systems governed by the law of Slovakia and supervised by 

Národná banka Slovenska under Article 60 of the draft law, the ECB understands that Article 45(8) 

of  the  draft  law  takes  into  account  the  application  by  Národná  banka  Slovenska  of  the 

Eurosystem’s  location  policy  so  that  the  Eurosystem  has  sufficient  means  to  ensure  the  safety of 

non-Eurosystem operators and to avoid the risk of undermining the Eurosystem’s control over the 

euro, and for the proper performance of its core tasks. For greater clarity, in its Article 45(8), the 

draft law should explicitly state the Eurosystem principles on the location and operation of systems 

that settle in euro. 

3.3  Liability issues 

In  implementing  the  Payment  Services  Directive,  the  term  ‘gross  negligence’  and  the  distinction 
between ordinary negligence and gross negligence are introduced in the draft law8. The ECB points 

out that the liability regime which applies to cases of “gross negligence” is also applicable to cases 

of  “fraud  and  wilful  misconduct”  pursuant  to  Article  31(2)  of  the  Harmonised  Conditions  for 

participation in TARGET2. Therefore the ECB recommends amending Article 45(9)(a) of the draft 

law accordingly. Moreover, the ECB suggests that, in order to fully transpose the liability regime, 

amendments reflecting the distinction between ordinary negligence and gross negligence should be 

made  to  the  measures  which  have  been  adopted  by  Národná  banka  Slovenska  to  implement 

Article 31 of the Harmonised Conditions for participation in TARGET2. 

3.4 

Statistics 

The  draft  law  also  amends  Law  No  566/1992  Coll.  on  Národná  banka  Slovenska,  and  explicitly 

empowers  Národná  banka  Slovenska  to  collect  statistics  and  other  data  under  Law  No  566/1992 

Coll. and under special legislation. The ECB suggests that the duties in the field of statistics should 

be  clarified  and  should  encompass  the  collection  of  statistical  information  in  order  to  assist  the 

ECB in the performance of the ESCB’s tasks. In this respect, Articles 5.1 and 5.2 of the Statute of 

the  European  System  of  Central  Banks  and  of  the  European  Central  Bank  state  that,  for  the 

performance of the tasks of the ESCB, the ECB, assisted by the national central banks shall collect 

7 
8 

The ECB commented on this issue in its Opinion CON/2008/18. 
See Articles 10(2), 12(2) and 45(9)(a) of the draft law. 

3 

 
 
 
 
                                                 
the necessary statistical information, and the national central banks shall carry out these tasks, to 

the extent possible. 

3.5  Date of entry into force 

Although Article 94(1) of the Payment Services Directive provides that the Member States have to 

bring  into  force  the  laws,  regulations  and  administrative  provisions  necessary  to  comply  with  it 

before  1  November  2009,  Section  XVIII  of  the  draft  law  lays  down  the  date  1  December  2009. 

While the ECB understands that the date of entry into force of the draft law has been determined to 

guarantee  an  adequate  period  for  its  addressees  to  become  acquainted  with  the  new  regime  it 

introduces,  the  transposition  obligations  flowing  from  the  Payment  Services  Directive  should  be 

observed. 

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

Done at Frankfurt am Main, 29 September 2009. 

[signed] 

The President of the ECB 

Jean-Claude TRICHET 

4