Opinion of the European Central Bank of 9 July 2010 on the provision of information and other obligations of Banka Slovenije as payment service provider for budget users (CON/2010/55)
Date: 2010-07-09
Institutions: European Central Bank
Subjects: Slovenia, Treasury, central bank, national law, payment system

EN 

OPINION OF THE EUROPEAN CENTRAL BANK 

of 9 July 2010  

on the provision of information and other obligations of Banka Slovenije  

as payment service provider for budget users 

(CON/2010/55) 

Introduction and legal basis 

On 22 June 2010 the European Central Bank (ECB) received a request from the Slovenian Ministry of 

Finance for an opinion on a draft law on the provision of payment services to budget users (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 mainly governs the organisation and tasks of the Public Payments Administration of 

the Republic of Slovenia (hereinafter the ‘PPA’) and certain aspects of the functioning of the single 

treasury  account  system.  The  PPA’s  tasks  are  currently  laid  down  in  the  Law  on  payment 
transactions2, which was mostly replaced in 2009 by a new Law on payment services and systems3 
implementing the Payment Services Directive4. Further rules are laid down in regulations adopted 

on the basis of the Law on payment transactions. According to the explanatory memorandum, the 

draft law does not introduce a new regime for the functioning of the single treasury account system 

or  for  the  performance  of  payment  transactions  by  ‘budget  users’  (defined  by the  Law  on  public 
finance5 as State and municipal authorities and organisations, municipal administrations and public 

1  
2  
3  

4  

5  

OJ L 189, 3.7.1998, p. 42.  
Zakon o plačilnem prometu, published in Uradni list Republike Slovenije No 30/2002. 
Zakon  o  plačilnih  storitvah  in  sistemih,  published  in  Uradni  list  Republike  Slovenije  No  58/2009.  The  ECB  issued 
Opinion CON/2009/27 on this Law. All ECB opinions are published on the ECB’s website at www.ecb.europa.eu. Like 
Opinion  CON/2009/27,  the  present  opinion  does  not  include  any  assessment  of  the  implementation  of  directives  in 
Slovenia. 
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 (OJ L 319, 5.12.2007, p. 1). 
Zakon o javnih financah, published in Uradni list Republike Slovenije No 79/1999. 

 
 
 
 
                                                 
funds,  institutes  and  agencies  established  by  the  State  or  a  municipality).  Instead,  the  draft  law 

transforms  the  key provisions  of  the  existing  regime  governing  the  PPA’s  tasks  into  a  functional 

whole. 

1.2  The abovementioned single treasury account system is one of the characteristics of the system of 

public finance in Slovenia. There is one such single treasury account system for the State and one 
for  each  municipality,  and  it  is  composed  of  accounts  opened  with  Banka  Slovenije6.  The 

maintenance and management of these accounts, however, is entrusted to the PPA. Several types of 

accounts are maintained within each single treasury account system, namely: treasury sub-accounts 

of the State and of municipalities, maintained for the management of funds of each single treasury 

account system; sub-accounts to which fiscal revenues are paid in; sub-accounts maintained for the 

provision of payment services to budget users, and other types of accounts foreseen by laws and 
other regulations7. In addition to maintaining these accounts, the PPA also collects and distributes 

all  relevant  information  on  payments  to  and  from  these  accounts,  maintains  a  register  of  budget 

users  and  performs  other  tasks  assigned  by  law.  The  whole  system,  established  in  its  current 

structure  in  2003,  is  described  in  the  draft  law’s  explanatory  memorandum  as  being  effective  in 

ensuring complete, up-to-date and accurate information on all transactions involving public funds 

in  one  place,  thereby  facilitating,  among  other  things,  the  processing  of  the  relevant  data  for 

budget, tax, statistical and other purposes and the supervision of the monetary flow to and from the 

budget. 

1.3  Under conditions laid down in the Law on public finance or a regulation adopted by the Minister of 

Finance,  budget  users  are  authorised  to  open  special-purpose  transaction  accounts  (a  category  of 

payment accounts) directly with Banka Slovenije, for the purpose of the separate management of 

funds  allocated  to  a  specific  programme  or  project.  Pursuant  to  Article  23(3)  of  the  draft  law, 

Banka Slovenije provides to the PPA, free of charge, information on payments debited and credited 

to such accounts and on the amount of funds held on such accounts, while regulations adopted by 

the Minister of Finance define rules on the method and deadlines for this provision of information. 

Pursuant  to  Article  23(5),  the  Minister  of  Finance  also  lays  down  the  terms  for  opening, 

maintaining and closing the accounts of budget users, and several other rules in connection with the 

payments to and from the system of public finance. 

2. 

The appropriate time to consult the ECB 

2.1 

In its consultation request, the consulting authority asks for the ECB’s opinion to be delivered as 

soon as possible, considering that the draft law is already in the parliamentary procedure. However, 

no explicit time limit for the submission of the opinion has been set. Since the date of receipt of the 

consultation  request,  further  steps  towards  adoption  of  the  draft  law  have  been  made  in  the 

Slovenian National Assembly, including the inclusion of several amendments to the draft law. 

6  
7  

Article 61 of the Law on public finance. 
See Article 23(1) of the draft law. 

2 

 
                                                 
2.2  The  ECB  points  out  that,  in  cases  of  particular  urgency  which  do  not  allow  for  a  normal 

consultation period, the consulting authority may indicate urgency in the consultation request and 

ask  for  a  shorter  deadline  for  the  ECB’s  opinion  to  be  adopted.  This  does  not  prejudice  the 

consulting  authority’s  duty  under  Article  127(4)  and  282(5)  of  the  Treaty  to  consult  the  ECB  on 

national draft legislative provisions falling within its fields of competence at an appropriate stage in 

the  national  legislation  process,  as  stated  in  the  second  sentence  of  Article  4  of  Decision 

98/415/EC. This implies that the consultation should take place at a point in the legislative process 

which affords the ECB sufficient time to examine the draft legislative provisions and to adopt its 

opinion in all required language versions, and which also enables the relevant national authorities 

to  take  the  ECB’s  opinion  into  consideration  before  the  provisions  are  adopted.  Article  3(4)  of 

Decision  98/415/EC  also  obliges  Member  States  to  suspend  the  adoption  process  for  draft 

legislative provisions, pending receipt of the ECB’s opinion. As the draft law was submitted to the 

National Assembly of the Republic of Slovenia a month before the ECB received the consultation 
request8, this cannot be considered as a case of extreme urgency within the meaning of Article 3(2) 

of  Decision  98/415/EC  and  it  was  also  not  indicated  as  such  in  the  consultation  request.  In  the 

absence  of  an  explicit  deadline  for  the  submission  of  its  opinion,  but  taking  into  account  the 

consulting authority’s request for it to deliver an opinion as soon as possible, the ECB decided to 

apply the minimum one-month deadline provided in Article 3(1) of Decision 98/415/EC. 

2.3   The  opportunity  to  issue  an  opinion  on  a  draft  law  allows  the  ECB  to  express  its  views  on  the 

substance of the proposed legislation. The ECB reiterates its position that even cases of particular 

urgency  do  not  relieve  national  authorities  from  their  duty  to  consult  the  ECB  and  to  allow 

sufficient  time  to  take  into  account  its  views  in  accordance  with  Decision  98/415/EC.  Any 

substantive  amendments  to  the draft  law  have  to  be  submitted  to  the  ECB  in order  to  allow  it  to 

issue  its  opinion  based  on  the  most  recent  text.  Furthermore,  with  respect  to  the  present 

consultation,  the  process  of  adoption  of  the  draft  law  should  have  been  suspended.  The  ECB’s 

comments on the provisions on which it was consulted do not eliminate the breach of the obligation 

to  consult  it.  The  ECB  would  appreciate  the  Ministry  of  Finance’s  giving  due  consideration  to 

honouring its obligation to consult the ECB in the future. 

3. 

Obligations of Banka Slovenije as service provider 

3.1  Requirements for the provision of information 

3.1.1  Article 21.2 of the Statute of the European System of Central Banks and of the European Central 

Bank (hereinafter the ‘Statute of the ESCB’) establishes that the ‘ECB and national central banks 

may act as fiscal agents’ for ‘Union institutions, bodies, offices or agencies, central governments, 

regional  local  or  other  public  authorities,  other  bodies  governed  by  public  law,  or  public 
undertakings  of  Member  States.’  This  is  reflected  in  Article 12  of  the  Law  on  Banka  Slovenije9, 

8  

9  

The  draft  law  was  submitted  to  the  National  Assembly  on  20  May  2010,  while  the  relevant  consultation  request  was 
received by the ECB on 22 June 2010. 
Zakon o Banki Slovenije, published in Uradni list Republike Slovenije, No 72/2006. 

3 

 
                                                 
according  to  which  Banka  Slovenije  may  act  as  a  payment  and/or  fiscal  agent  for  the  State  and 

maintains  accounts  for  the  Republic  of  Slovenia,  State  bodies  and  public  entities.  Pursuant  to 

Article 53 of the same Law, Banka Slovenije lays down the tariff for remuneration of the services it 

provides.  The  opening  of  special-purpose  transaction  accounts  of  budget  users  with  Banka 

Slovenije, as referred to in Article 23(2) of the draft law, falls within the existing tasks of Banka 

Slovenije, for the provision of which the latter should be able to charge appropriate fees. 

3.1.2  Article  23(3)  of  the  draft  law  obliges  Banka  Slovenije  to  provide  to  the  PPA  information  on 

payments  debited  and  credited  to  such  accounts  and  on  account  balances  free  of  charge.  In 

addition,  the  draft  law  authorises  the  Minister  of  Finance  to  independently  prescribe  the  method 

and deadlines for such provision of information, while it does not provide any further guidelines in 

this  respect.  The  requirements  laid  down  by  the  Minister  might  expose  Banka  Slovenije  to  a 

considerable  burden,  as  they  could  have  an  impact  on  its  internal  procedures  and  information 

systems  and,  consequently,  could  require  additional  human  and  financial  resources.  In  order  to 

protect the financial independence of Banka Slovenije, the availability of such additional resources 

should  be  ensured  in  order  not  to  affect  Banka  Slovenije’s  capacity  to  carry  out  its  European 

System of Central Banks (ESCB)-related tasks. Additionally, as noted in the ECB’s convergence 

reports, the principle of financial independence requires a national central bank to have sufficient 

means  not  only  to  perform  its  ESCB-related  tasks  but  also  its  national  tasks  (e.g.  financing  its 
administration and own operations)10.  

3.1.3  Furthermore, the ECB recommends defining in more detail the scope of the relevant obligations of 

Banka Slovenije, in order to ensure certainty as regards its tasks. Also, the involvement of Banka 

Slovenije in the preparation or adoption of the Minister’s act (e.g. through giving its consent) might 

be considered to ensure that its provisions are feasible and to optimise them. 

3.2  Other requirements prescribed by the Minister of Finance 

3.2.1  Pursuant to Article 23(5) of the draft law, the Minister of Finance prescribes, among other things, 

the terms for opening, maintaining and closing the accounts of budget users, the content, method 

and deadlines for the provision of information by payment service providers on payments debited 

and credited to the accounts of budget users, the obligatory content of instructions for the payment 

of  fiscal  revenues  as  well  as  rules  on  the  provision  of  other  information  in  connection  with  the 

relevant payment transactions. 

3.2.2  It  is  not  clear  from  the  draft  law  whether  (or  to  what  extent)  such  rules  would  also  apply  to  the 

accounts  maintained  by  Banka  Slovenije  or  otherwise  impose  additional  obligations  on  Banka 

Slovenije.  Should  this  be  the  case,  it  seems  unusual  that  the  Minister  of  Finance,  as  a  customer, 

defines  the  terms  and  condition  for  the  accounts  and  services  provided  by  Banka  Slovenije.  The 

draft law should respect the provisions of Article 27 in conjunction with Article 12 of the Law on 

Banka  Slovenije  whereby  such  terms  and  conditions  are  established  by  an  agreement  between 

Banka  Slovenije  and  the  Ministry  of  Finance.  More  importantly,  taking  into  account  the  express 

10  

See e.g. the ECB’s Convergence Report of May 2010, p. 21. 

4 

                                                 
recognition in Article 21.2 of the Statute of the ESCB of the provision of fiscal agency services as a 
legitimate  function  traditionally  performed  by  central  banks11,  the  ECB  notes  that  provision  by 

central banks of fiscal agency services should comply with the monetary financing prohibition laid 

down  in  Article  123  of  the  Treaty  by  not  constituting  central  bank  financing  of  public  sector 
obligations vis-à-vis third parties12 or central bank crediting of the public13. In this respect, the ECB 

recalls that it is essential to make explicit that any remuneration of the account held by the budget 

users with Banka Slovenije will reflect market parameters. In particular, it is important to correlate 
the remuneration rate of the deposits with their maturity. As recalled in past ECB opinions14, the 

prohibition on monetary financing by central banks of government activities is independent of its 

form,  i.e.  loans  or  other  direct  financial  means  (e.g.  the  provision  of  direct,  non-reimbursable 

funding to the public sector) are covered by the prohibition. Interest payments above market rates 

constitute  a  de  facto  advance  distribution  of  profits.  This,  in  turn,  implies  a  de  facto  intra-year 

credit, contrary to the objective of the monetary financing prohibition. Therefore, the remuneration 

of  deposits  of  public  entities  should  not  go  beyond  the  remuneration  applied  to  a  similar  deposit 

made  by  a  market  counterparty.  If  the  remuneration  mechanism  for  deposits  of  public  entities 

allows the Government to systematically steer the remuneration by an NCB at a rate above the rate 

at which a similar deposit would be remunerated by a market counterparty, this would contravene 

the objectives of the monetary financing prohibition under the Treaty.  

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

Done at Frankfurt am Main, 9 July 2010. 

[signed] 

The President of the ECB 

Jean-Claude TRICHET 

11  

12  

13  
14  

See the ECB’s Convergence Report of May 2010, p. 25, which states that ‘The purpose of Article 21.2 of the Statute  was 
to  enable  NCBs,  following  transfer  of  the  monetary  policy  competence  to  the  Eurosystem,  to  continue  to  conduct  the 
fiscal agent service traditionally provided by central banks to governments and other public entities without automatically 
breaching the monetary financing prohibition.’ 
See  Article  1(1)(b)(ii)  of  Council  Regulation  (EC)  No  3603/93  of  13  December  1993  specifying  definitions  for  the 
application of the prohibitions referred to in Articles 104 [now 123] and 104b(1) [now 125(1)] of the Treaty (OJ L 332, 
31.12.1993, p. 1). 
See also ECB Opinion CON/2009/23, paragraph 2.2. 
See in particular ECB Opinions CON/2008/10 and CON/2009/69. 

5