Opinion of the European Central Bank of 29 March 2010 on a new legal framework concerning integrity and prevention of corruption as regards its application to Banka Slovenije and its decision-making bodies (CON/2010/27)
Date: 2010-03-29
Institutions: European Central Bank
Subjects: Slovenia, central bank, conflict of interest, corruption, fight against crime, national law

EN 

OPINION OF THE EUROPEAN CENTRAL BANK 

of 29 March 2010  

on a new legal framework concerning integrity and prevention of corruption as regards its 

application to Banka Slovenije and its decision-making bodies  

(CON/2010/27) 

Introduction and legal basis 

On 9 March 2010 the European Central Bank (ECB) received a request from the National Assembly of 

the  Republic  of  Slovenia  for  an  opinion  on  a  draft  law  on  integrity  and  prevention  of  corruption 

(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  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 is designed as a comprehensive legal framework concerning prevention of corruption 

in Slovenia. While taking on board a large number of current legal provisions in this area, the draft 

law introduces several new provisions which go beyond the narrow definition of measures for the 

prevention of corruption. Its aim is namely to provide the necessary conditions for employees and 

officials to perform their duties in an honest, professional and transparent manner, and to promote 

honest and transparent behaviour of public servants and good practices of any person involved in 

decision-making processes.  

1.2  The draft law applies to the public sector, except where certain issues are regulated by other laws, 

and  to  the  private  sector  where  this  is  explicitly  provided  for.  It  foresees  the  continuation  of  the 

work  of  the  Commission  for  the  prevention  of  corruption  (hereinafter  the  ‘Commission’),  an 

independent  State  body  with  the  central  role  in  the  combating  and  prevention  of  corruption,  and 

entrusted with other tasks. The Commission is given important tasks and competences, in particular 

regarding  (i)  monitoring  compliance  with  the  draft  law  by  its  addressees;  (ii)  requesting 

information  from  legal  entities;  (iii)  issuing  other  requests;  (iv)  giving  information  and  making 

1  

OJ L 189, 3.7.1998, p. 42.  

 
 
 
 
                                                 
proposals to other competent authorities and organisations; and (v) imposing fines for breaches of 

the draft law’s provisions.  

1.3  A  large  part  of  the  draft  law  is  addressed  to  ‘officials’.  This  term,  as  defined  in  the  draft  law, 

includes persons holding public office such as the  President of the Republic, the Prime Minister, 

members  of  the  National  Assembly,  ministers,  judges  and,  explicitly,  high-ranking  officials  of 

Banka Slovenije, ‘unless their rights and obligations are otherwise regulated by the law governing 
Banka Slovenije or other regulations binding upon Banka Slovenije’2.  

1.4  The main provisions applying to officials are the following: 

a) 

Rules on incompatibility of functions prohibit officials, with certain exceptions, from holding 

other offices or carrying out other activities with the intention of earning income or acquiring 

other  benefits.  An  official  assuming  an  office  must  terminate  any  such  other  offices  or 

activities within a defined period. If this does not happen, the Commission issues a warning 

to  the  official  and  sets  a  deadline  for  compliance.  If  the  Commission  establishes  that  the 

official has not ceased to hold the office or perform the activities concerned, it communicates 

its  findings  to  the  body  responsible  for  initiating  proceedings  to  terminate  the  official’s 

office. The Commission may also impose a fine on the official concerned. 

b) 

Acceptance of gifts in connection with officials’ discharge of office is restricted to gifts not 

exceeding a defined low value and completely prohibited if a gift does or could influence the 

official’s objective and unbiased discharge of office. All gifts received must be entered in a 

list maintained by the body or organisation where an official holds office, and copies of such 

lists  must  be  sent  annually  to  the  Commission  which  will  then  publish  information  on  the 

gifts on its website. The Commission also assesses if rules on acceptance of gifts are being 

followed  and,  upon  discovery  of  a  breach,  imposes  a  fine  and  informs  other  competent 

authorities where appropriate. 

c) 

Restrictions on business are aimed at restricting entities where an official holds office from 

conducting  business  with  other,  especially  commercial,  entities  with  which  the  official  has 

managerial  or  ownership  connections.  Such  restrictions  apply  during  the  official’s  term  of 

office and, to some extent, within one or two years after leaving office. 

d) 

Conflicts  of  interest,  both  actual  and  potential,  should  be  avoided  by  all  public  officers  as 
defined in the Slovenian Criminal Code3. The ECB understands that the definition of public 

officers  includes  officials  as  well  as  certain  other  categories  of  persons.  If  an  actual  or 

potential conflict of interest arises, the public officer in question must immediately cease his 

work in the relevant area and inform his superior or, if there is no superior, the Commission 

thereof. If it is established that a conflict of interest exists or could exist, the public officer is 

removed from the relevant area of work, unless other laws provide for specific procedures 

for  the  removal  of  a  public  officer.  The  Commission  may  also  institute  a  procedure  for 

2  
3  

Article 4(5) of the draft law. 
Article 37 of the draft law in connection with Article 4(9) of the draft law. 

2 

                                                 
identifying conflicts of interest in the official activities of public officers and, if suspicion is 

confirmed,  communicate  its  findings  to  the  officer’s  employer  or  the  relevant  competent 

body and request feedback on the measures taken. 

e) 

Supervision  of  wealth  of  professional  officials  and  certain  other  categories  of  persons, 

including  persons  responsible  for  public  procurement,  is  performed  by  the  Commission. 

Under the draft law, these persons are obliged to periodically provide the Commission with 

information on their personal wealth, e.g. income, real estate, securities and cash holdings. If 

a person fails to provide the relevant information, the Commission has the power to impose a 

fine  and  also  to  decide  that  the  person’s  salary  is  gradually  reduced  every  month  by  one 

tenth,  to  the  level  of  the  minimum  salary,  until  he  provides  the  requested  information. 

Furthermore,  if  the  Commission  establishes  that  there  is  a  disproportionate  increase  in  a 

person’s  wealth  relative  to  his  income  from  the  activities  allowed  by  law,  or  that  the 

information provided differs substantially from the data contained in tax records, the person 

is  required  to  provide  an  explanation.  If  the  explanation  is  not  to  the  Commission’s 

satisfaction,  it  communicates  its  findings  to  the  authority  where  the  person  works  or  holds 

office  or  the  authority  responsible  for  electing  or  appointing  the  person,  and  this  authority 

initiates proceedings for removal from office or other appropriate proceedings.  

2. 

General observations  

2.1  The draft law defines ‘public sector’ as having the same meaning as in the Law on public servants4. 

The  ECB  understands  that  the  definition  of  public  sector  in  Article  1(2)  of  that  Law  does  not 

include  Banka  Slovenije  and,  therefore,  the  relevant  provisions  of  the  draft  law  do  not  apply 

thereto. As a consequence, this opinion concentrates on issues which have been identified, through 

other definitions and provisions, as applicable to Banka Slovenije. 

2.2 

In  general,  various  definitions  of  entities  and  persons  covered  by  the  draft  law  may  cause 

uncertainty regarding the applicability of its provisions in individual cases. 

2.3  Article 51 of the draft law requires the National Assembly to adopt a resolution for the prevention 

of  corruption.  In  the  implementation  of  this  resolution  and  of  plans  for  its  implementation,  the 

Commission collaborates with a wide range of entities, including organisations from the public and 

private sectors. The Commission will monitor the implementation of the resolution on the basis of 

an  action  plan,  in  collaboration  with  executive  agencies  indicated  in  that  action  plan.  The  ECB 

understands  that  such  activities  will  not  interfere  with  the  independent  functioning,  organisation 

and decision-making of Banka Slovenije.  

4  

Article 4(3) of the draft law. 

3 

 
 
                                                 
3. 

Requirements applicable to members of Banka Slovenije’s Governing Board as ‘officials’ 

3.1  General 

As  mentioned  in  paragraph  1.3,  pursuant  to  Article  4(5)  of  the  draft  law  the  Governor  and  other 

members  of  Banka  Slovenije’s  Governing  Board  are  subject  to  the  draft  law’s  provisions  with 

respect to officials ‘unless their rights and obligations are otherwise regulated by the law governing 

Banka  Slovenije  or  other  regulations  binding  upon  Banka  Slovenije’.  To  the  extent  that  this 

definition ensures that the draft law does not jeopardise compliance with the provisions on central 

bank  independence  included  in  the  Treaty  and  in  the  Statute  of  the  European  System  of  Central 

Banks  and  of  the  European  Central  Bank  (hereinafter  the  ‘Statute  of  the  ESCB’)  (in  particular, 

Article 130 of the Treaty and Articles 7 and 14.2 of the Statute of the ESCB), the ECB welcomes 
it5, as it takes into account the special position of the national central bank and its decision-making 

bodies  as  regulated  by  other  legislation.  For  reasons  of  legal  certainty  and  clarity,  however,  a 

provision  could  be  included  in  the  draft  law  explicitly  identifying  which  provisions  apply  to  the 

Governor and other members of Banka Slovenije’s Governing Board. 

3.2 

Incompatibility of functions, conflicts of interest 

The comment in paragraph 3.1 on the need for compliance with the relevant articles of the Treaty 

and of the Statute of the ESCB applies especially to the draft law’s provisions on incompatibility of 

functions  and  conflicts  of  interest.  The  ECB  understands  that  the  quoted  definition  from 

Article 4(5) ensures that the draft law’s provisions on incompatibility of functions and on grounds 

and  procedures  for  relief  from  office  of  officials  and  removal  from  an  area  of  work  of  public 

officers do not apply to the members of Banka Slovenije’s Governing Board, since these issues are 

explicitly regulated by Articles 38, 39 and 39a of the Law on Banka Slovenije. 

3.3  Acceptance of gifts 

The main provisions of the draft law concerning acceptance of gifts by officials correspond to the 

relevant  provisions  of  the  draft  law  on  restrictions  and  prohibitions  for  public  office  holders  on 
which the ECB issued its opinion CON/2008/436. As noted in paragraph 3.2 of that opinion, these 

provisions  are  similar  to  the  requirements  laid  down  in  the  ECB’s  Code  of  Conduct  for  the 
members of the Governing Council7 (hereinafter the ‘Code of Conduct’). Although the restrictions 

in the draft law are to a certain extent stricter than the corresponding provisions in Article 3.3 of the 

Code  of  Conduct  (as  regards  maximum  value,  form  of  gift  and  applicability  of  the  provisions  to 

officials’ family members), they follow the same basic principles as stated in Article 2 of the Code 

of Conduct. The public disclosure of gifts received also serves the principle of transparency. 

5  

6  

7  

On a similar issue, see e.g. paragraph 3.3 of ECB Opinion CON/2009/64 of 27 July 2009 on public access to information 
on officials' wealth. All ECB opinions are available on the ECB website at www.ecb.europa.eu. 
ECB Opinion CON/2008/43 of 17 September 2008 at the request of the Slovenian Ministry of Public Administration on a 
draft law on restrictions and prohibitions for public office holders.  
Memorandum of Understanding on a Code of Conduct for the members of the Governing Council (OJ C 123, 24.5.2002, 
p.  9), as  amended  by  the  Memorandum  of  Understanding amending  the  Memorandum  of  Understanding  on  a  Code  of 
Conduct for the members of the Governing Council (OJ C 10, 16.1.2007, p. 6). 

4 

 
 
 
                                                 
3.4 

Supervision of wealth 

The main provisions of the draft law concerning supervision of wealth, to the extent that they apply 

to officials, correspond to the relevant provisions of the draft law on public access to information 

on officials’ wealth on which the ECB issued its opinion CON/2009/64. The main difference, apart 

from the fact that pursuant to the new draft law the competent authority is the Commission and not 

the Court of Audit, is the absence in the new draft law of a fine in the amount of the value of any 

undeclared wealth or of wealth from unexplained sources. Instead, the Commission  may forward 

the case to the State Prosecutors’ office or to other competent authorities. 

The ECB understands that the possibility of reducing the salaries of members of Banka Slovenije’s 

Governing Board will apply as a general sanction, equivalent to a fine, under the Slovenian legal 

system  and  will  not  interfere  with  the  legal  relationship  between  the  central  bank  and  its 

independent  decision-making  officials.  Under  this  assumption,  the  sanction  of  salary  reduction 

would  not  jeopardise  the  personal  independence  of  Banka  Slovenije  officials  as  provided  for  in 

Article 130 of the Treaty and Article 7 of the Statute of the ESCB, despite the fact that the sanction 

is  linked  to  the  salary  of  the  Governor and  the  members  of  Banka  Slovenije’s  Governing Board, 

provided that the ECB’s understanding as follows is correct.  

The sanction of salary reduction is understood to be used to speed up the provision of information 

requested by the Commission and it applies, in addition to certain other persons, to all professional 

officials in Slovenia, including the President of the Republic, the Prime Minister and members of 

the National Assembly. Moreover, the sanction will be imposed by the Commission, which is an 

independent  body,  and  the  conditions  for  the  decision  on  the  salary  reduction  (i.e.  the  grounds, 

amount and duration) as well as the legal remedy against such a decision are clearly provided for in 

the draft law. Pursuant to Article 45(2) of the draft law, the Commission communicates findings on 

unjustified  increases  of  wealth,  or  on  lack  of  explanation  regarding  such  increases,  to  the  body 

competent  for  electing  or  appointing  the  relevant  official.  In  this  context,  the  importance  of  the 

appropriate reading of the term ‘officials’, as explained in paragraph 3.1, is reiterated. On the basis 

of the above assumptions and understanding, the ECB is of the opinion that the provisions of the 

draft law on supervision of wealth and the related sanctions are not incompatible with the principle 

of personal independence. 

4. 

Banka Slovenije’s duty to present information and documents 

Pursuant to Article 16(1) of the draft law, all legal persons governed by public or private law (therefore 

including Banka Slovenije) are obliged to give the Commission, at its reasoned request and regardless of 

other  laws,  all  information  and  documents  necessary  for  the  fulfilment  of  its  tasks.  Although  such  a 

request  must  include  the  legal  basis,  reasons  for  and  purpose  of  such  a  request,  this  obligation  is  very 

broad, in particular with respect to Banka Slovenije. Namely, the relevant information necessary for the 

fulfilment of the Commission’s tasks might not only include information on the performance of tasks by 

Banka Slovenije, its employees and decision-making bodies themselves, but also confidential information 

5 

 
 
 
 
obtained by Banka Slovenije from other entities in the performance of supervisory and statistical tasks. 

The ECB would recommend an amendment to the draft law to ensure that any exchange of information 

between Banka Slovenije and the Commission is consistent with Union law regulating the exchange of 
supervisory and statistical information and professional secrecy8, as well as with Article 479 of the Law 

on Banka Slovenije.  

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

Done at Frankfurt am Main, 29 March 2010. 

[signed] 

The President of the ECB 

Jean-Claude TRICHET 

8  

9  

As regards the relevant Union legislation, see e.g. footnote 27 of ECB Opinion CON/2008/39 of 1 September 2008 at the 
request of the Polish Minister for Finance on a draft law on the Financial Stability Committee. 
Pursuant  to  Article  47(2)  of  the  Law  on  Banka  Slovenije,  ‘Banka  Slovenije  may  send  confidential  data  under  the 
conditions set out by a law and the Statute of the ESCB’. Pursuant to paragraph 3 of the same Article, ‘Banka Slovenije 
shall prescribe the criteria for defining confidential data and the procedures for handling confidential data concerning the 
performance  of  Banka  Slovenije’s  tasks  pursuant  to  this  Law  or  any  other  law  or  concerning  the  activities  of  Banka 
Slovenije in the European System of Central Banks.’ 

6