Opinion of the European Central Bank of 9 September 2011 on authorisation to act on the supervisory boards of banks (CON/2011/70)
Date: 2011-09-09
Institutions: European Central Bank
Subjects: Slovenia, bank, banking supervision, co-determination, financial stability, law of banking, national law

EN 

ECB-PUBLIC 

OPINION OF THE EUROPEAN CENTRAL BANK 

of 9 September 2011  

on authorisation to act on the supervisory boards of banks 

(CON/2011/70) 

Introduction and legal basis 

On 22 August 2011, the European Central Bank (ECB) received a request from the Slovenian Ministry of 

Finance for an opinion on a draft law amending the Law on banking (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  and  sixth  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  Banka  Slovenije  and  contains  rules 

applicable to financial institutions insofar as they materially influence the stability of financial institutions 

and  markets.  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 Ministry requested the ECB’s opinion on the provisions of the draft law introducing in the Law 

on banking (hereinafter the ‘Law’) the need to obtain authorisation to act as member of a bank’s 
supervisory board (hereinafter the ‘authorisation’)2. Banka Slovenije grants the authorisation if the 

candidate has been duly appointed by the bank’s general assembly and meets the conditions under 

the Law, namely: (i) appropriate professional qualifications and the characteristics and experience 

necessary  to  supervise  the  management  of  the  bank’s  operations  (i.e.  at  least  five  years  of 

experience  in  managing  or  supervising  the  operations  of  a  company  of  comparable  size  and 

activities), and (ii) not having been convicted, by a final judgment, of certain criminal offences. If 

the  candidate  does  not  meet  the  conditions  mentioned  above  or  the  available  information  shows 

that the bank’s operations could be jeopardised, pursuant to risk management rules, due to activities 

and  operations  carried  out  by  the  candidate  or  due  to  past  actions,  Banka  Slovenije  rejects  the 

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2  

OJ L 189, 3.7.1998, p. 42.  
The  provisions  relating  to  the  authorisation  are  the  following:  Article  5  amending  Article  72(3)  of  the  Law,  Article  6 
inserting a new Article 72.a in the Law, Article 37 amending Article 396(2) of the Law and Article 38 in the transitional 
and final provisions chapter of the draft law. 

 
 
 
 
 
                                                      
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application. The authorisation is bound to the supervisory board member’s function at a particular 

bank  and  ceases  to  be  valid  following  expiry  of  the  term  of  office  to  which  it  relates.  The 

supervisory board member must inform Banka Slovenije within five business days that their term 

of office has expired and Banka Slovenije issues a decision declaring that the authorisation ceased 

to  be  valid on  that  basis. According  to  the  transitional  provisions  of  the  draft  law,  members  of  a 

bank’s supervisory board carrying out their function on the basis of decisions valid before the entry 

into force of the draft law must obtain authorisation within 24 months from the entry into force of 

the draft law. 

1.2  Most  of  the  draft  law  provisions  are  intended  to  transpose  Directive  2010/76/EU3  and 
Directive 2010/78/EU4 into Slovenian law. In accordance with Article 1(2) of Decision 98/415/EC, 

the ECB does not provide its opinion on draft legislative provisions the exclusive purpose of which 

is the transposition of Union directives into the law of Member States. 

1.3  Finally, the draft law makes mainly editorial changes to the provisions of the Law governing the 

Slovenian deposit guarantee scheme. 

2. 

The competence of Banka Slovenije 

2.1  The ECB welcomes the provisions of the draft law introducing an authorisation to act as member of 

a  bank’s  supervisory  board.  It  could  contribute  to  efficient  supervision  of  banks’  operational 

management.  Within  its  role  as  Slovenian  banking  supervisor,  Banka  Slovenije  is  well  placed  to 

grant  the  authorisation,  as  it  already  does  in  the  case  of  the  authorisation  to  act  as  member  of  a 

bank’s management board.  

2.2  The ECB expects that any legislative provisions giving new competences to Banka Slovenije are 

agreed by Banka Slovenije. 

3. 

Central bank independence 

3.1  As granting the authorisation would be a new task entrusted to Banka Slovenije, it would 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’5. The ECB has consistently expressed its concern that, when allocating additional tasks 

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4  

5  

Directive  2010/76/EU  of  the  European  Parliament  and  of  the  Council  of  24 November  2010  amending  Directives 
2006/48/EC  and  2006/49/EC  as  regards  capital  requirements  for  the  trading  book  and  for  re-securitisations,  and  the 
supervisory review of remuneration policies (OJ L 329, 14.12.2010, p. 3). 
Directive  2010/78/EU  of  the  European  Parliament  and  of  the  Council  of  24 November  2010  amending  Directives 
98/26/EC,  2002/87/EC,  2003/6/EC,  2003/41/EC,  2003/71/EC,  2004/39/EC,  2004/109/EC,  2005/60/EC,  2006/48/EC, 
2006/49/EC  and 2009/65/EC  in  respect  of  the  powers  of  the  European  Supervisory  Authority  (European  Banking 
Authority),  the  European  Supervisory  Authority  (European  Insurance  and  Occupational  Pensions  Authority)  and  the 
European Supervisory Authority (European Securities and Markets Authority) (OJ L 331, 15.12.2010, p. 120). 
See e.g. the ECB’s Convergence Report May 2010, p. 21, available on the ECB’s website at www.ecb.europa.eu. 

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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 affected6. 

3.2  Such considerations are of particular importance from the perspective of the initial additional work 

stemming  from  the  requirement  for  members  already  appointed  to  banks’  supervisory  boards  to 

obtain authorisation within 24 months from entry into force of the draft law. Consequently, Banka 

Slovenije  would  have  to  process  these  applications  at  the  same  time  as  applications  by  members 

appointed to banks’ supervisory boards following entry into force of the draft law. 

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

Done at Frankfurt am Main, 9 September 2011. 

[signed] 

The President of the ECB 

Jean-Claude TRICHET 

6  

In  the  context  of  consultations  by  Slovenian  authorities,  see  e.g.  paragraph  2.3  of  Opinion  CON/2007/38  and 
paragraph 3.5 of Opinion CON/2011/25. 

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