Opinion of the European Central Bank of 18 March 2011 on prevention of late payments (CON/2011/25)
Date: 2011-03-18
Institutions: European Central Bank
Subjects: Slovenia, commercial transaction, deadline for payment, national law, small and medium-sized enterprises

EN 

OPINION OF THE EUROPEAN CENTRAL BANK 

of 18 March 2011  

on prevention of late payments  

(CON/2011/25) 

Introduction and legal basis 

On 21 February 2011, the European Central Bank (ECB) received a request from the Slovenian Ministry 

of  Finance  (hereinafter:  the  ‘Ministry’)  for  an  opinion  on  a  draft  law  on  prevention  of  late  payments 

(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  According to the consultation request, the draft law broadly follows the provisions contained in the 

proposed Directive of the European Parliament and of the Council on combating late payment in 

commercial  transactions  (recast)  (hereinafter  the  ‘proposed  Directive’),  which  was  aimed  at 

replacing Directive 2000/35/EC of the European Parliament and of the Council of 29 June 2000 on 
combating  late  payment  in  commercial  transactions2.  The  ECB  notes  that  the  proposed  Directive 

was recently adopted as Directive 2011/7/EC of 16 February 2011 on combating late payment in 
commercial  transactions  (recast)3  and  was  published  on  23  February  2011.  Given  the  above,  the 
ECB does not provide its opinion on the transposition of Directive 2011/7/EC4; instead, following 

the  request  of  the  Ministry,  the  ECB  limits  its  views  to  the  impact  of  the  draft  law  on  Banka 

Slovenije. 

1.2  The draft law regulates measures to prevent late  payments as part of the Government’s efforts to 

improve  economic  and  business  conditions  for  small  and  medium  size  enterprises.  It  defines  the 

moment  of  late  payment  and  the  consequences  of  late  payment  for  contracts  concluded  between 

1  
2  
3  
4  

OJ L 189, 3.7.1998, p. 42. 
OJ L 200, 8.8.2000, p. 35. 
OJ L 48, 23.2.2011, p. 1. 
See Article 1(2) of Decision 98/415/EC. 

 
 
 
 
                                                 
economic operators or between economic operators and public authorities where one party provides 

goods  or  services  and  the  other  party  provides  payment.  The  draft  law  does  not  apply  where 

insolvency  proceedings  have  been  initiated  against  a  debtor  pursuant  to  the  law  governing 
insolvency proceedings5.  

2. 

Duty to consult the ECB 

2.1  The ECB notes that the Parliament adopted the draft law on 4 March 2011, eleven days after the 

ECB received the Ministry’s consultation request, without any prior notification to the ECB. The 

Ministry asked for the opinion to be delivered as soon as possible, but did not indicate a specific 

deadline nor grounds for extreme urgency that would justify setting a short deadline.  

2.2   The ECB reiterates the position which it has consistently communicated to the Ministry6 that even 

cases  of  particular  urgency  do  not  abrogate  the  duty  of  the  national  authorities  under 

Articles 127(4) and 282(5) of the Treaty to consult the ECB on national draft legislative provisions 

falling within its fields of competence and to allow sufficient time to take into account its views, in 

accordance with Decision 98/415/EC.  

2.3   Pursuant  to  Article  3(1)  and  (2)  of  Decision  98/415/EC,  the  consulting  authorities  may,  if  they 

consider it necessary, set the ECB a time limit for the submission of its opinion which may not be 

less than one month from the date on which the President of the ECB receives notification to this 

effect.  In  case  of  extreme  urgency,  the  time  limit  may  be  reduced.  In  this  case,  the  consulting 

authority  must  state  the  reasons  for  the  urgency.  Had  the  present  consultation  been  a  case  of 

particular  urgency  which  would  not  allow  for  a  normal  consultation  period,  the  Ministry  should 

have indicated urgency in the consultation request and asked for a shorter deadline than provided 

for  in  Decision  98/415/EC  for  the  ECB’s  opinion  to  be  adopted.  In  the  absence  of  an  explicit 

deadline for the submission of its opinion, but taking into account the Ministry’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. 

2.4   The second sentence of Article 4 of Decision 98/415/EC provides that the ECB must be consulted 

at an appropriate stage enabling the authority initiating the draft legislative provision to take into 

consideration  the  ECB’s  opinion  before  taking  its  decision  on  the  substance.  The  consultation 

should  therefore  take  place  at  a  point  in  the  legislative  process  which  affords  the  ECB  sufficient 

time  to  examine  the  draft  legislative  provisions  and  which  also  enables  the  relevant  national 

authorities to take the ECB’s opinion into consideration before the provisions are adopted. It also 

follows  from  Article  3(4)  of  Decision  98/415/EC  that  once  a  consultation  request  has  been 

submitted  to  the  ECB,  Member  States  are  obliged  to  suspend  the  process  of  adoption  of  draft 

5  
6  

See Article 1 of the draft law. 
See  paragraph  2.2  of  Opinion  CON/2010/55,  paragraph  2.4  of  Opinion  CON/2008/76  and  paragraph  2.1  of  Opinion 
CON/2008/92. 

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legislative provisions, pending receipt of the ECB’s opinion or the expiry of a time limit set for the 
submission of the ECB opinion in accordance with Decision 98/415/EC7.  

2.5   With respect to the present consultation, the duty to consult the ECB has not been respected by the 

Ministry. 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 it if the Ministry would honour 

their duty under the Treaty to consult the ECB in the future. 

3. 

Independence of Banka Slovenije 

Application of the draft law to Banka Slovenije’s contractual relations 

3.1  The ECB understands that the draft law applies to Banka Slovenije (which falls under the definition 

of  ‘public  authorities’)  as  regards  its  contractual  relations  in  the  area  of  administration,  in 

particular.  However,  Article  2(4)  of  the  draft  law  clarifies  that  the  draft  law  does  not  apply  to 

Banka Slovenije where it exercises its exclusive competences pursuant to the law governing Banka 

Slovenije  or  any  other  laws  or  Union  regulations  laying  down  exclusive  competences  of  Banka 

Slovenije. The ECB welcomes this provision as it ensures that the draft law does not interfere with 

the  tasks  of  the  European  System  of  Central  Banks  (ESCB)  and  the  Eurosystem  carried  out  by 

Banka Slovenije in accordance with the Treaty and the Statute of the European System of Central 

Banks and of the European Central Bank, in particular the implementation of the monetary policy 

of the Union. For sake of clarity, the draft law could be further improved by referring precisely to 

Banka Slovenije’s competences as part of the ESCB and the Eurosystem.  

Supervision of the implementation of the draft law 

3.2  Pursuant to Article 23 of the draft law, inspectorates and other authorities, in accordance with their 

competences, supervise the implementation of the draft law and identify related breaches. Pursuant 

to Article 24(3) of the draft law, each of these supervisory authorities has the power to decide on 

offences for identified breaches of the draft law in the areas under their supervision. 

3.3  Under the draft law Banka Slovenije is also subject to supervision under the provisions referred to 

paragraph 3.2. In order to fully respect central bank independence, it should be made clear that any 

supervision  of  Banka  Slovenije’s  compliance  with  the  draft  law  should  observe  its  status  as  an 

independent central bank as granted by the Treaty.  

3.4  The  provisions  referred  to  paragraph  3.2  are  not  sufficiently  clear  as  regards  Banka  Slovenije’s 

role. If it is intended that, in the context of exercising its function of banking supervisor, the tasks 

of  Banka  Slovenije  are  extended  to  supervision  of  the  implementation  of  the  draft  law  and  to 

deciding  on  breaches  in  this  context  by  banks,  savings  banks  and  other  entities  under  its 

supervision in accordance with law, it should be expressly stated. 

7  

See Title IV, Section 1 of the Guide to consultation of the European Central Bank by national authorities regarding draft 
legislative provisions, available on the ECB’s website at www.ecb.europa.eu.  

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3.5 

If the draft law indeed allocates a new task as referred to in paragraph 3.4 to Banka Slovenije, it 

will have to commit additional human and financial resources to carry out this task. In this context, 

the  ECB  has  emphasised  that  ‘Member  States  may  not  put  their  [national  central  banks]  in  a 

position where they have insufficient 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 national central banks, it must be ensured that they have sufficient human and 

financial resources, both in terms of quantity and quality, for all of their tasks, and in particular that 
their capacity to fulfil their ESCB- or Eurosystem-related tasks is not affected9. Accordingly, the 

ECB expects that Banka Slovenije will have sufficient human and financial resources for any new 

tasks so that its capacity to perform its Eurosystem tasks will remain unaffected. 

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

Done at Frankfurt am Main, 18 March 2011. 

[signed] 

The President of the ECB 

Jean-Claude TRICHET 

8  
9  

See e.g. the ECB’s Convergence Report May 2010, p. 21, available on the ECB’s website at www.ecb.europa.eu. 
In the context of consultations by Slovenian authorities, see e.g. paragraph 2.3 of Opinion CON/2007/38. 

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