Opinion of the European Central Bank of 11 April 2014 on the independence of Banka Slovenije (CON/2014/25)
Date: 2014-04-11
Institutions: European Central Bank
Subjects: Slovenia, administrative transparency, audit, central bank, disclosure of information, dismissal, institutional activity, national law

EN 

ECB-PUBLIC 

OPINION OF THE EUROPEAN CENTRAL BANK 

of 11 April 2014 

on the independence of Banka Slovenije 

(CON/2014/25) 

Introduction and legal basis 

On  19  February  2014,  the  European  Central  Bank  (ECB)  received  a  request  from  the  President  of  the 
Slovenian Parliament for an opinion on a draft law amending the Law on Banka Slovenije1 (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/EC2, 

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  Pursuant to the explanatory memorandum to the draft law submitted to the National Assembly for 

the legislative procedure by a group of its deputies, the purpose of the draft law is to strengthen the 

democratic accountability of Banka Slovenije and to enhance the transparency of its operations, in 

particular in the context of its banking supervisory role. 

1.2  The  draft  law  amends  the  provisions  of  the  Law  on  Banka  Slovenije  (hereinafter  the  ‘Law’) 

relating to Banka Slovenije’s reporting to the National Assembly. It contains exemptions from the 

duty to safeguard confidential information  in respect of credit institutions which are recipients of 

state  aid  where  such  information  is  requested  by  the  National  Assembly  or  its  committees.  The 

draft law also proposes that additional representatives of the National Assembly’s committees may 

participate in meetings of Banka Slovenije’s Governing Board. 

1.3.  The  draft  law  stipulates  a  larger  voting  majority  for  the  appointment  of  the  Governor  and  other 

members  of  Banka  Slovenije’s  Governing  Board  by  the  National  Assembly  and  also  contains 

amendments to the rules on their reappointment, limiting the number of their terms of office to two. 

1.4  Furthermore,  the  draft  law  introduces  a  new  ground  for  the  dismissal  of  members  of  Banka 

Slovenije’s decision-making bodies and gives the Governor of Banka Slovenije the right to dismiss 

directors or deputy directors of its departments without needing to provide any grounds. 

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2  

Zakon o Banki Slovenije (ZBS-1) (Ur. l. RS No 72/2006 – official consolidated text, 59/11). 
Council Decision 98/415/EC of 29 June 1998 on the consultation of the European Central Bank by national authorities 
regarding draft legislative provisions (OJ L 189, 3.7.1998, p. 42).  

 
 
 
 
                                                 
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1.5  Finally,  the  draft  law  provides  for  the  auditing  of  Banka  Slovenije’s  operations  by  an  external 

auditing company appointed by the National Assembly, on a proposal from the Committee for the 

control  of  public  finance.  This  external  auditor  would  also  be  empowered  to  establish  the 

incompatibility  of  functions  of  the  members  of  Banka  Slovenije’s  Governing  Board,  rather  than 

Banka Slovenije itself. 

2. 

Dismissal of members of Banka Slovenije’s decision-making bodies 

2.1  Article 130 of the Treaty lays down the principle of personal independence, which is a key aspect 

of the principle of central bank independence for the members of the European System of Central 

Banks  (ESCB).  This  principle  is  reflected  in  Article  7  and  Article  14.2  of  the  Statute  of  the 

European System of Central Banks and of the European Central Bank (hereinafter the ‘Statute of 

the  ESCB’).  In  particular,  Article  14.2  provides,  inter  alia,  that  governors  may  only  be  relieved 

from ofﬁce if they no longer fulﬁl the conditions required for the performance of their duties or if 

they have been guilty of serious misconduct, with the possibility of recourse to the Court of Justice 

of the European Union. 

The purpose of Article 14.2 of the Statute of the ESCB is to prevent the authorities involved in the 

appointment  of  governors,  particularly  the  government  or  parliament,  from  exercising  their 

discretion  to  dismiss  a  governor.  Since  Article  14.2  is  directly  applicable,  national  central  bank 

(NCB) statutes should either contain grounds for dismissal in line with Article 14.2, or should omit 

any  mention of  such  grounds. Once elected or appointed,  governors may not be dismissed under 

conditions other than those mentioned in Article 14.2 of the Statute of the ESCB even where they 

have not yet taken up their duties. 

Personal independence would be jeopardised if the same rules did not also apply to other members 

of  the  decision-making  bodies  of  NCBs  involved  in  the  performance  of  ESCB-related  tasks. 

Various  provisions  of  the  Treaty  and  the  Statute  of  the  ESCB  require  comparable  security  of 

tenure. Article 14.2 of the Statute of the ESCB does not restrict the security of tenure of ofﬁce to 

governors, while Article 130 of the Treaty and Article 7 of the ESCB Statute refer to ‘members of 

the  decision-making  bodies’  of  NCBs  rather  than  to  governors  specifically.  This  applies  in 

particular where a governor is ‘ﬁrst among equals’ with colleagues with equivalent voting rights or 
where such other members are involved in the performance of ESCB-related tasks3. 

2.2  Article 39(1)4 of the Law provides that the members of Banka Slovenije’s Governing Board may 

only  be  removed  from  office  before  expiry  of  the  term  if  they  ask  to  be  relieved  (indent  1),  if 

grounds for the incompatibility of functions arise during their term of office (indent 2), or if it has 

3  

4  

See, for example, the ECB’s Convergence Report 2013, pp. 23 to 24. All ECB Convergence Reports are available on the 
ECB’s website at www.ecb.europa.eu. 
In connection with  Article 39.a  of the  Law  which stipulates the  application of certain provisions of law governing the 
prevention of corruption. 

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been  found  in  a  prescribed  procedure5  that  they  no  longer  fulfil  the  conditions  required  for  the 

performance of their duties or that they have been guilty of serious misconduct (indent 3).  

2.3  The proposed amendment to Article 39 of the Law also provides for the dismissal of a member of 

Banka Slovenije’s Governing Board on a proposal from the Slovenian President, by a majority of 

two thirds of all deputies of the National Assembly. This adds a new ground for dismissal to the 

two  existing  ones  provided  by  Article  14.2  of  the  Statute  of  the  ESCB  and  is  thus  incompatible 

with the Statute. The proposed amendment should therefore be deleted.  

2.4  The incompatibility of functions referred to in indent 2 of Article 39(1) of the Law only addresses 

the situations defined in Article 38 of the Law. In this respect, the ECB would reiterate the view 

expressed in its Convergence Report of May 2006 that inserting a cross-reference to Article 38 in 

point  2  of  Article  39(1)  would  be  welcome  for  legal  certainty  reasons.  In  addition,  it  should  be 

clarified  that  point  2  of  Article  39(1)  of  the  Law  is  a  condition  required  for  the  performance  of 

duties and not a ground for dismissal in addition to the two grounds provided by Article 14.2 of the 

Statute of the ESCB.  

3. 

Participation  by  representatives  of  third  parties  in  Banka  Slovenije’s  Governing  Board 

meetings 

The principle of central bank institutional independence, enshrined in Article 130 of the Treaty and 

Article 7 of the Statute of the ESCB, renders the participation by representatives of third parties in 

an NCB’s decision-making body with a right to vote on matters concerning the performance by the 

NCB of ESCB-related tasks incompatible with the Treaty and the Statute of the ESCB, even if such 
a vote is not decisive6. Furthermore, the  principle of central bank institutional independence also 

renders the participation of third party representatives, without a right to vote in the meetings of an 

NCB’s decision-making body entrusted with the performance of ESCB-related tasks, incompatible 

with the Treaty and the Statute of the ESCB, if such participation interferes with the performance 
of  ESCB-related  tasks7  by  that  decision-making  body  or  endangers  compliance with  the  ESCB’s 

confidentiality regime. 

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6  
7  

This procedure is governed by a Decision on the Procedure of Establishing Responsibility of Members of the Governing 
Board  of  Banka  Slovenije,  adopted  by  Banka  Slovenije  in  agreement  with  the  Finance  Minister  (Sklep  o  postopku 
ugotavljanja odgovornosti članov Sveta Banke Slovenije) (Ur. l. RS No 24/2003). 
See, for example, the ECB’s Convergence Report 2013, p. 22. 
Pursuant to Article 2 of the Law, the principle of central bank independence  should be respected not only when Banka 
Slovenije performs ESCB-related tasks, but also when it performs national tasks. 

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4. 

External audit of Banka Slovenije’s operations  

4.1  The draft law proposes the introduction of a new Article 41.a8 into the Law, pursuant to which the 

operations of Banka Slovenije would be audited by an auditing company, selected by the National 

Assembly on a proposal from the Committee for public finance control. 

4.2  Article 27.1 of the Statute of the ESCB requires the accounts of the ECB and NCBs to be audited 

by  independent  external  auditors  recommended  by  the  Governing  Council  and  approved  by  the 

Council and this is  duly  reflected in Articles 52 and 65 of the Law. The proposed amendment is 

thus  incompatible  with  Article  27.1  of  the  Statute  of  the  ESCB  and  contradicts  the  existing 

provisions of Articles 52 and 65 of the Law. 

4.3  Where an NCB’s operations are subject to the control of a state audit ofﬁce or similar body charged 

with controlling the use of public ﬁnances,  a number of safeguards of central bank independence 

should apply: (a) the scope of the control should be clearly deﬁned by the legal framework; (b) the 
activities of the NCB’s independent external auditors should not be prejudiced9; (c) in line with the 

principle of institutional independence, as enshrined in Article 130 of the  Treaty and Article 7 of 

the Statute of the ESCB, the audit should: (i) comply with the prohibition on giving instructions to 

an NCB and its decision-making bodies, (ii) not interfere with the NCB’s ESCB-related tasks, and 
(iii)  be  carried  out  on  a  non-political,  independent  and  purely  professional  basis10.  The  proposed 

amendments of the Law do not meet all these requirements. 

5. 

Reporting by Banka Slovenije to the National Assembly and confidentiality of information 

5.1  As pointed out by the ECB in its Convergence Reports11, the obligation of professional secrecy for 

ECB and NCB staff under Article 37 of the Statute of the ESCB may give rise to similar provisions 

in NCBs’ statutes or in Member States’ legislation. The primacy of Union law and rules adopted 

thereunder  also  means  that  national  laws  on  third  party  access  to  documents  may  not  result  in 

infringements  of  the  ESCB’s  confidentiality  regime.  Access  to  an  NCB’s  information  and 

documents must be without prejudice to the ESCB’s confidentiality regime, to which the members 

of  NCBs’  decision-making  bodies  and  staff  are  subject.  NCBs  should  ensure  that  such  bodies 

protect the confidentiality of information and documents disclosed at a level corresponding to that 

applied  by  the  NCBs.  Therefore,  any  provision  of  information  permitted  by  the  proposed 

amendments to Article 26 of the Law on the reporting of Banka Slovenije to the National Assembly 

and  the  proposed  amendment  to  Article  47  of  the  Law  on  protection  of  confidential  data  should 

comply with the relevant Union laws, including those governing the exchange of supervisory and 

statistical  information,  as  well  as  the  obligation  of  safeguarding  professional  secrecy.  Therefore, 

Article 26 of the Law should refer not only to national laws in this respect but also to Union law 

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10  

11  

In connection with the proposed deletion of point 1 of Article 32(1) of the Law. 
For the activities of the independent external auditors of the NCBs see Article 27.1 of the Statute of the ESCB. 
See,  for  example,  p.  26  of  the  ECB’s  Convergence  Report  2013,  Opinions  CON/2011/9  and  CON/2011/53.  All  ECB 
Opinions are available on the ECB’s website at www.ecb.europa.eu 
See, for example, p. 27 of the ECB’s Convergence Report 2013. 

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including Article 37 of the Statute of the ESCB. The ECB emphasises that confidential information 

may be exchanged only if necessary for the performance of the tasks of the body that receives the 

information.  In  this  context,  the  ECB  notes  that  a  representative  of  the  National  Assembly’s 

Committee for finance and monetary policy may participate in meetings of the Governing Board of 
Banka Slovenije12 where they can get acquainted with any confidential information, including the 

details relating to granting state aid to credit institutions.  

5.2  The  proposed  new  Article  26(3)  of  the  Law  provides  that  the  report  addressed  to  the  National 

Assembly should contain a report on the work and on the performance of tasks of the members of 

the  Governing  Board  of  Banka  Slovenije.  However,  the  Governing  Board  is  a  collegial  body 

accountable to the National Assembly as a whole. Depending on the level of detail of this report, 

this provision raises concerns regarding the institutional independence of Banka Slovenije and the 

personal  independence  of  the  members  of  the  Governing  Board  of  Banka  Slovenije.  The  Law 

should  contain  adequate  safeguards  in  order  to  ensure  that:  (a)  the  reporting  obligations  do  not 

result in interference with the independence of the members of Banka Slovenije’s Governing Board 

as provided by Article 130 of the Treaty and Article 7 of the Statute of the ESCB; (b) the special 

status  of  governors  in  their  capacity  as  members  of  the  ECB’s  decision-making  bodies  is  fully 

respected;  and  (c)  confidentiality  requirements  resulting  from  the  Statute  of  the  ESCB  are 
observed13. 

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

Done at Frankfurt am Main, 11 April 2014. 

[signed] 

The President of the ECB 

Mario DRAGHI 

12  
13  

See Article 33(1) of the Law. 
See, for example, p. 22 of the ECB’s Convergence Report 2013. 

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