Opinion of the European Central Bank of 18 December 2015 on certain amendments to Banka Slovenije’s institutional framework (CON/2015/57)
Date: 2015-12-18
Institutions: European Central Bank
Subjects: Slovenia, audit, banking supervision, central bank, conduct of meetings, conflict of interest, dismissal, institutional activity, national law, staff

EN 

ECB-PUBLIC 

OPINION OF THE EUROPEAN CENTRAL BANK 

of 18 December 2015  

on certain amendments to Banka Slovenije’s institutional framework 

(CON/2015/57) 

Introduction and legal basis 

On  22  October  2015  the  European  Central  Bank  (ECB)  received  a  request  from  the  President  of  the 

National Assembly of the Republic of Slovenia for an opinion on a draft law amending the Law on Banka 

Slovenije (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 1, 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 

The  draft  law,  prepared  and  submitted  to  the  Slovenian  National  Assembly  by  a  group  of  its  deputies, 
proposes  amendments  to  the  Law  on  Banka  Slovenije2,  the  Law  on  the  Court  of  Audit3,  the  Law  on 
banking4, the Law on civil servants 5 and the Law on the public sector salary system6, which would bring 

about changes to Banka Slovenije’s institutional framework. In particular, the draft law: 

(a) 

proposes  changes  to  the  procedure  and  grounds  for  removing  a  member  of  Banka  Slovenije’s 

Governing Board from office, by stipulating that the National Assembly is to decide on their removal 

from  office  if  they  are  in  breach  of  the  law  or  the  Constitution  or  where  the  Court  of  Audit  of  the 

Republic  of  Slovenia  calls  for  their  dismissal.  Additionally,  the  draft  law  proposes  that  the 

incompatibility of functions of a member of Banka Slovenije’s Governing Board, which may lead to 

their  termination  or  removal  from  office  by  the  National  Assembly,  is  to  be  determined  by  the 

Commission for the Prevention of Corruption of the  Republic of Slovenia.  Moreover, the draft law 

proposes  deleting  a  currently  applicable  provision  according  to  which,  in  the  event  that  specific 

1  

2  
3  
4  
5  

6  

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). 
Zakon o Banki Slovenije (ZBS-1) (Ur. l. RS No 72/06 – official consolidated text, 59/11). 
Zakon o računskem sodišču (ZRacS-1) (Ur. l. RS No 11/01 and 109/12). 
Zakon o bančništvu (ZBan-2) (Ur. l. RS No 25/15). 
Zakon  o  javnih  uslužbencih  (ZJU)  (Ur.  l.  RS  No  63/07  –  official  consolidated  text,  65/08,  69/08  –  ZTFI-A,  69/08  – 
ZZavar-E and 40/12 – ZUJF). 
Zakon  o  sistemu  plač  v  javnem  sektorju  (ZSPJS)  (Ur.  l.  RS  No  108/09  –  official  consolidated  text,  13/10,  59/10, 
85/10,  107/10,  35/11  –  ORZSPJS49a,  27/12  –  Decision  of  the  Constitutional  Court,  40/12  –  ZUJF,  46/13,  25/14  – 
ZFU, 50/14, 95/14 – ZUPPJS15 and 82/15). 

 
 
 
 
                                                 
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laws are breached, early termination of office, which is a sanction provided for in those laws, shall 

not apply to Banka Slovenije’s Governing Board members; 

(b) 

proposes  that  the  Court  of  Audit  of  the  Republic  of  Slovenia  shall  carry  out  regularity  and 

performance audits of Banka Slovenije’s operations as well as carry out audits of Banka Slovenije’s 

supervisory activities. In this regard, the draft law also permits confidential bank data to be shared 

with the Court of Audit; 

(c) 

provides that, in addition to the representative from the National Assembly’s committee in charge of 

finance  and  monetary  policy  and  the  Minister  for  Finance,  a  representative  of  the  National 

Assembly’s committee in charge of supervision of public finances may be a non-voting participant 

in Banka Slovenije’s Governing Board meetings; 

(d) 

increases  Banka  Slovenije’s  reporting  requirements  to  the  National  Assembly,  in  particular  with 

regard  to  banks  that  received  State  aid,  and  adds  that  the  receiving  body  must  protect  such 

information, in line with the laws regulating confidential information; 

(e) 

prohibits any of Banka Slovenije’s Governing Board members, other than the Governor, from being 

employed  by  Banka  Slovenije,  and  prohibits  the  Governor  from  chairing  Banka  Slovenije’s 

Governing Board; 

(f) 

states  that  Banka  Slovenije  must  prepare  and  implement  a  financial  plan,  an  employment  and 

dismissal policy, and must use resources for salaries in accordance with the laws and regulations 
applicable for direct and indirect State ‘budget users 7’. The draft law further introduces provisions 

that  include  Banka  Slovenije’s  staff  under  the  definition  of  ‘public  servants’  and  that  specify  that 

Banka Slovenije is to use the public sector salary system as regards its staff; 

(g) 

limits the number of possible terms of office of a governor and other members of Banka Slovenije’s 

Governing Board to two; and  

(h) 

gives  Banka  Slovenije’s  Governor  the  possibility  to  dismiss  directors  or  deputy  directors  of  its 

departments without providing any grounds. 

2. 

General observations 

The draft law proposes changes to Banka Slovenije’s institutional framework, some of which are identical 

to or adding to changes already proposed by two previous legislative initiatives on which the ECB issued 
Opinions CON/2015/8 8 and CON/2014/25, which were not adopted by the National Assembly. The ECB 

now  reiterates  the  views  expressed  in  the  two  opinions  where  they  are  applicable  to  the  draft  law  and 

supplements them as follows. 

7 

8  

‘Budget users’ means those entities that are defined by the Law on public finance (Zakon o javnih financah, Ur. l. RS 
No 11/11 – official consolidated text, 14/13 – corr., 101/13 and 55/15 – ZFisP) as State and municipal authorities and 
organisations,  municipal  administrations  and  public  funds,  institutes  and  agencies  established  by  the  State  or  a 
municipality. 

All ECB opinions are published on the ECB’s website at www.ecb.europa.eu. 

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3. 

Removing  a  member  of  Banka  Slovenije’s  decision-making  bodies  from  office  and  other 

changes concerning Banka Slovenije’s decision-making bodies 

3.1  As  explained  in  its  previous  opinions,  Article  130  of  the  Treaty,  as  reflected  in  Article  7  of  the 

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

the ‘Statute  of the ESCB’), lays down the principle of central bank independence,  which  prohibits 

national central banks (NCBs) and members of their decision-making bodies from seeking or taking 

instructions from external parties, and prohibits governments of the Members States from seeking 

to influence the members of the NCB’s decision-making bodies. A core element of this principle is 

the  personal  independence  of  the  members  of  an  NCB’s  decision-making  bodies,  as  reflected  in 

Article 14.2 of 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  found  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, which would be contrary to the principle of personal independence 

of the members of the NCB’s decision-making bodies. Since Article 14.2 is directly applicable, NCB 

statutes  should  either  contain  grounds  for  dismissal  in  line  with  Article  14.2,  or  should  omit  any 

mention of such grounds.  

As  consistently  noted  in  the  ECB’s  convergence  reports  and  opinions,  personal  independence 

would  be  jeopardised  if  the  same  rules  did  not  also  apply  to  other  members  of  NCB  decision-

making bodies involved in the performance of European System of Central Bank- (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  to  the 

governor’s office, while Article 130 of the Treaty and Article 7 of the  Statute of the ESCB 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’ as regards colleagues with equivalent voting 
rights or where such other members are involved in the performance of ESCB-related tasks9. 

3.2  Article  39(1)(4)  of  the  Law  on  Banka  Slovenije,  as  proposed  under  Article  8  of  the  draft  law, 

provides  for  a  member  of  Banka  Slovenije’s  Governing  Board  to  be  removed  from  office  if  they 

have  failed  to  act  in  accordance  with  the  law  or  the  Constitution.  The  subsequent  paragraphs  of 

Article  39,  as  proposed  under  the  draft  law,  set  out  the  procedure  for  bringing  this  ground  for 

dismissal,  which  is  to  be  based  on  an  allegation  of  a  breach  of  the  law  or  the  Constitution  and 

which  requires  a  call  for  evidence.  Further,  the  National  Assembly  working  body  responsible  for 

finance  and  monetary  policy  is  required  to  assess  the  initiative  for  removal  from  office  and, 

subsequently,  submit  to  the  National  Assembly  a  proposal  to  dismiss  a  member  of  Banka 

Slovenije’s  Governing  Board  on  the  basis  of  a  found  breach  of  the  law  or  the  Constitution,  after  

9  

See, for example, page 24 of the ECB’s Convergence Report 2014. All ECB Convergence Reports are available on 
the ECB’s website at www.ecb.europa.eu. 

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which time the National Assembly must then decide on whether the member should be removed. 

Article  39(1)(5)  of  the  Law  on  Banka  Slovenije,  as  proposed  under  Article  8  of  the  draft  law, 

provides that a member of Banka Slovenije’s Governing Board may be removed from office if the 

Court of Audit issues a call to relieve them from their office. Again, the subsequent paragraphs of 

Article  39,  as  proposed  under  the  draft  law,  set  out  the  procedure  for  bringing  this  ground  for 

dismissal,  which  is  to  be  based  in  this  situation  on  an  audit  report  from  the  Court  of  Audit. 

According to Article 39(4), as proposed under the draft law, such report may include allegations of 
irregularities and of underperformance10. 

3.3   As  a  preliminary  point,  the  ECB  recommends  that  the  procedures,  including  any  initiative  of  the 

National  Assembly  for  the  dismissal  of  Banka  Slovenije’s  Governing  Board  members,  should  be 

kept clearly distinct from the substantive provisions on the grounds for dismissal, i.e. in a separate 
legal provision, to ensure full consistency with the provisions of the Statute of the ESCB11. 

3.4  Further,  the  ECB  understands,  in  view  of  the  explanation  in  the  explanatory  memorandum,  that 

these  two  grounds  for  dismissal  aim  to  define  the  concept  of  ‘serious  misconduct’  contained  in 

Article  14.2  of  the  Statute  of  the  ESCB.  However,  on  the  one  hand,  Article  39(1)(4)  and  (5),  as 

proposed  under  the  draft  law,  broaden  the  scope  of  ‘serious  misconduct’,  for  which  not  every 

breach  of  law  or  negative  regularity  or  performance  audit  is  tantamount  to  or  analogous  with 

serious misconduct. On the other  hand,  points  4 and 5 may  be seen as  limiting the scope of the 

Union’s legal concept of ‘serious misconduct’ to situations covered  only by those two grounds. In 

this respect, it is also noted that serious misconduct may not necessarily lead to a call for dismissal 

from  the  Court  of  Audit.  Consequently,  Article  39(1)(4)  and  (5),  as  proposed  under  the  draft  law, 

add two new grounds for dismissal that are not provided in, and are therefore in addition to, those 

stipulated  under  Article  14.2  of  the  Statute  of  the  ESCB.  In  conclusion,  the  national  legislator 
should not specify what amounts to serious misconduct12. 

3.5  Furthermore,  as  already  pointed  out  in  its  earlier  opinions,  the  ECB  has  previously  commented 

favourably on dismissal procedures where the finding of a breach of law had been within the remit 
of the judicial system13. However, the draft law entrusts a National Assembly working body, and not 

an independent judicial body, with the competence to determine whether the law or the Constitution 

has  been  breached.  Thus,  the  dismissal  of  a  Governing  Board  member  may  be  based  on  a 

discretionary  assessment  by  a  National  Assembly  working  body,  whereas  the  purpose  of 

Article 14.2 of the Statute of the ESCB is to prevent competent authorities, typically the government 

or parliament, from exercising their discretion on the grounds to dismiss a governor.  

10  

11  
12  
13  

See Article 20(3) of the Law on Court of Audit, according to which (i) “regularity audit” means obtaining relevant and 
sufficient data to enable an opinion to be expressed on compliance of operation with regulations and guidelines that 
any  user  of  public  funds  is  required  to  observe  in  the  conduct  of  operation  and  (ii)  “performance  audit”  means 
obtaining relevant and sufficient data to enable an opinion to be expressed on economy, efficiency and effectiveness 
of business operation. 
See, to that effect, paragraph 3.4.1 of Opinion CON/2012/73. 
See Opinion CON/2012/73. 
See Opinion CON/2012/73 and Opinion CON/2012/49. 

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3.6 

In  addition  to  the  proposed  changes  addressed  above,  Article  7  of  the  draft  law  proposes  that 

Article  38(3)  of  the  Law  on  Banka  Slovenije  should  be  amended  so  that  the  Commission  for  the 

Prevention  of  Corruption  would  establish  the  compatibility  of  functions  and  their  subsequent 

assignment of functions following the appointment of Governing Board members. In this regard, it 

is  first  recalled  that  the  incompatibility  of  functions  referred  to  in  Article  39(1)(2)  of  the  Law  on 

Banka Slovenije, which lays down the conditions for the dismissal from office of the members of the 

Governing  Board,  is  understood  to  only  address  the  situations  of  incompatibility  defined  in 

Article 38(2) of that Law. In this respect, the ECB reiterates the view expressed in its Convergence 
Report of May 2006, Opinion CON/2014/25 14 and Opinion CON/2015/8 15 that inserting an explicit 

cross-reference  to  Article  38  in  Article  39(1)(2)  would  be  welcome  for  legal  certainty  reasons.  In 

addition,  it  should  be  clarified  that  Article  39(1)(2)  of  the  Law  on  Banka  Slovenije  is  a  ‘condition 

required  for  the  performance  of  duties’  within  the  meaning  of  Article  14.2  of  the  Statute  of  the 

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

Statute of the ESCB, as described in paragraph 3.1 above. 

3.7  As has been consistently noted by the ECB in its Convergence Reports, membership of a decision-

making  body  involved  in  the  performance  of  ESCB-related  tasks  is,  as  a  matter  of  principle, 

incompatible  with  the  exercise  of  other  functions  that  could  create  a  conflict  of  interest.  This  is  a 

key  aspect  of  the  personal  independence  of  members  of  an  NCB’s  decision-making  bodies. 

Further,  the  ECB  has  noted  –  with  regard  to  the  grounds  for  a  Governor’s  dismissal  –  that  the 

principle  of personal independence applies from the moment a Governor  is elected or appointed, 

even if the Governor has not yet taken up his or her duties. In order to safeguard this principle of 

personal independence, the ECB considers that an assessment of compatibility of functions should 

be carried out before a member is appointed to an NCB’s decision-making body. Otherwise, there 

is  the  possibility  of  a  conflict  of  interest  between  the  other  functions  carried  out  by  such  member 

and  the  performance  of  his  or  her  ESCB-related  tasks.  Here,  the  issue  of  potential  conflicts 

appears to be addressed through the provision, in Article 38(3) of the Law on Banka Slovenije, that 

the  Governor  may  not  begin  performing  his  or  her  functions  until  any  incompatibility  has  been 

removed. Thus, in this respect, the procedure for assessing the compatibility of functions appears 

to be in line with the principle of personal independence, provided that the ECB’s comments made 

below with regard to Article 38(2)(5) are taken into account. 

3.8  Furthermore, according to Article 38(4) of the Law on Banka Slovenije, as proposed under Article 7 

of the draft law, the Commission for the Prevention of Corruption also establishes the existence of 

an  incompatibility  of  functions  arising  after  a  Governing  Board  member  has  been  appointed. 

However,  it  appears  that  this  is  not  wholly  consistent  with  Article  39(6)  of  the  Law  on  Banka 

Slovenije, in conjunction with Article 39(1)(2), which state that a Governing Board member may be 

relieved  from  office  when  the  National  Assembly  has  established  that  there  are  grounds  for  the 

incompatibility of functions. As provided for in Article 38(2)(5) of the Law on Banka Slovenije, ‘other 

work  or  activities  that  might  affect  their  members’  independence  or  could  conflict  with  Banka 

Slovenije’s interestsʼ may be considered to be a function that is incompatible with the position of a 

14  
15  

See paragraph 2.4 of Opinion CON/2014/25. 

See paragraph 3.3 of Opinion CON/2015/8. 

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Governing Board member. The provision of Article 38(2)(5) of the Law on Banka Slovenije involves 

a discretionary assessment on what affects the independence of, or constitutes a conflict of interest 

for,  the  Governing  Board  members.  Given  that  incompatibilities may  lead,  under  the  terms  of  the 

draft law, to the dismissal of Governing Board members, and given that their dismissal should not 

be subject to a discretionary assessment of the National Assembly, this provision raises concerns 

as  regards  the  personal  independence  of  the  Governing  Board  members.  Thus,  for  reasons  of 

clarity and legal certainty, the ECB recommends that the draft law should specify that the National 

Assembly  is  only  allowed  to  establish  that  grounds  for  incompatibility  of  functions  exist  if  the 

Commission for the Prevention of Corruption has already made such a finding. 

3.9 

In  any  event,  it  is  not  clear  whether  the  Commission  for  the  Prevention  of  Corruption  would  be 

competent to assess the full range of circumstances that would be incompatible with the role of a 

Governing  Board  member.  In  assessing  the  compatibility  of  functions,  the  Commission  for  the 

Prevention  of  Corruption  will  examine  the  points  outlined  in  Article  38  of  the  Law  on  Banka 

Slovenije. However, as noted above, Article 38(2)(5) involves a discretionary assessment of what 

constitutes a conflict of interest – the objective being to ensure that no situation exists that would 

be incompatible with the function of a Governing Board member. Such incompatibilities may or may 

not relate to the sphere of corruption. Yet, it is not clear from the draft law whether the Commission 

for  the  Prevention  of  Corruption  would  have  the  mandate  to  assess  incompatibilities  that  extend 

beyond  its  scope  of  competence.  Thus,  the  ECB  recommends  that  Banka  Slovenije’s  Governing 

Board should retain the power to determine whether there are incompatibilities between the roles of 

members of the Governing Board and their other roles, insofar as such incompatibilities fall outside 

the mandate of the Commission for the Prevention of Corruption. 

3.10  Article 9 of the draft law removes Article 39.a of the Law on Banka Slovenije, which currently states 

that  ‘the  provisions  of  the  law  governing  the  prevention  of  corruption  and  the  law  governing  the 

incompatibility  of  holding  public  office  while  simultaneously  running  a  profitable  activity, 

respectively, which contain the sanction of early termination of the term of office, shall not apply to 

Banka  Slovenije’s  Governing  Board  members’.  As  explained  in  the  Convergence  Report  of 
May 2006, as well as in Opinion CON/2010/27 16 in relation to the Law on integrity and prevention 
of  corruption 17  the  aim  of  Article  39.a,  together  with  Articles  38  and  39  of  the  Law  on  Banka 

Slovenije,  is  to  provide  that  members  of  Banka  Slovenije’s  decision-making  bodies  can  only  be 

removed on grounds and using procedures that are compatible with the Treaty and the Statute of 

the ESCB and laid down in the Law on Banka Slovenije. With the deletion of Article 39.a, the ECB 

notes  that  the  Law  on  integrity  and  prevention  of  corruption  contains  provisions  indicating  that 
breaches  of  some  of  the  requirements  thereunder  may  lead  to  early  termination  of  office18.  It 

should  be  ensured  that  the  sanctions  do  not  constitute  new  grounds  and  procedures  to  remove 

members of Banka Slovenije’s decision-making bodies from office, in addition to those compatible 

with the Treaty and the Statute of the ESCB that are laid down in the Law on Banka Slovenije.  

16  

17  

18  

See paragraphs 3.1, 3.2 and the third subparagraph in paragraph 3.4 of Opinion CON/2010/27. 

Zakon  o  integriteti  in  preprečevanju  korupcije  (ZIntPK)  (Ur. l.  RS  No  69/11  –  official  consolidated  text).  The  earlier 
law on prevention of corruption and the incompatibility of holding public office while running a profitable activity, are 
no longer in force. 

See, e.g. Articles 13, 26, 28 and 45 of the Law on integrity and prevention of corruption). 

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3.11  The  draft  law  also  proposes  additional  changes  concerning  Banka  Slovenije’s  decision-making 

bodies. Banka Slovenije has two decision-making bodies: the Governor and the Governing Board. 

The  Governing  Board  is  composed  of  five  members,  i.e.  the  Governor  and  four  Vice-Governors. 

The  draft  law  prohibits  any  of  Banka  Slovenije’s  Governing  Board  members,  other  than  the 

Governor,  from  being  employed  by  Banka  Slovenije,  and  does  not  allow  the  Governor  to  chair 

Banka Slovenije’s Governing Board. 

3.12  Firstly, as highlighted in the ECB’s 2014 Convergence Report, the ECB is not limited to making a 

formal  assessment  of  the  letter  of  national  legislation,  but  may  also  consider  whether  the 

implementation of the relevant provisions complies with the spirit of the Treaty and the  Statute of 

the ESCB. The ECB is particularly concerned about any signs of pressure being put on any NCB’s 

decision-making  bodies  that  would  be  inconsistent  with  the  spirit  of  the  Treaty  as  regards  central 

bank  independence.  In  this  respect,  the  ECB  recalls  that  the  office  of  an  NCB’s  Governor  is 

accorded  special  status  due  to  his  or  her  capacity  to  act  as  a  member  of  the  ECB’s  Governing 

Council. The fact that this special status should be fully respected has led to the common practice 

among  NCBs  that  the  Governor  is  seen  as  ‘first  among  equals’  where  decisions  are  taken  by 

boards  as  collegiate  NCB  decision-making  bodies.  However,  by  providing  that  Banka  Slovenije’s 

Governor may not chair the Governing Board, the draft law departs from this practice and, as such, 

could be seen as an attempt to undermine the Governor’s authority. Consequently, the suggested 

amendment to Article 30(2) of the Law on Banka Slovenije is, in itself, capable of jeopardising the 

Governor’s personal independence. 

3.13  The ECB considers that the draft law is unclear with regard to the nature of the powers of the new 

Governing  Board  President  and  the  division  of  competences  that  would  exist  between  the  other 

Board members and the Governor. In particular, it is unclear whether the powers accorded to the 

Governor  under  Banka  Slovenije’s  statute  and  rules  of  procedure  would  be  construed  as 

references  to  the  powers  of  the  new  President  of  the  Governing  Board.  In  the  ECB’s  view,  it  is 

imperative  that  the  draft  law  provide  clarity  in  terms  of:  (a)  the  precise  scope  of  the  powers  and 

tasks to be assigned to the President of the Governing Board; (b) the limits of the competence of 

the President of the Governing Board, in particular as regards whether the role will have decision-

making powers; and (c) the position of the President in Banka Slovenije’s organisational structure, 

for instance, whether or not Banka Slovenije’s staff members will report directly to the President of 

the  Governing  Board.  The  latter  would  raise  additional  concerns  as  regards  the  Governor’s 

personal  independence,  if  the  Governor  were  not  the  President  of  the  Governing  Board. Without 

clarity in these respects, the ECB is concerned that Banka Slovenije’s decision-making processes 

will be undermined. 

3.14 

It is also emphasised that any changes to the Governor’s mandate can only be made in respect of 

future appointments, in order to ensure the existing Governor’s personal independence. 

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4. 

Auditing of Banka Slovenije by the national Court of Audit 

4.1  The draft law, with Articles 13 and 14, proposes entrusting the Court of Audit with the competence 

to carry out regularity and performance audits of Banka Slovenije’s operations as well as to audit 
Banka Slovenije’s supervisory activities 19. 

4.2 

In relation to the proposal to entrust the Court of Audit with the competence to carry out audits on 
the  regularity  and  performance  of  Banka  Slovenije’s  operations 20,  the  ECB  reiterates  the  view 

expressed in Opinion CON/2015/8. Accordingly, the competences that a state audit office or similar 

body,  such  as  the  Court  of  Audit,  may  hold  with  respect  to  NCB  activities  and  use  of  public 

finances,  are  compatible  with  the  principle  of  central  bank  independence  when  the  following 

safeguards  are  in  place:  (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 prejudiced; 

(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  an  apolitical,  independent  and  purely  professional  basis. 

On  the  basis  of  the  above,  the  scope  of  the  control  is  defined  in  the  draft  law,  through  the 

provisions  of  the  Law  on  the  Court  of  Audit,  which  define  the  concepts  of  regularity  and 

performance  audits.  However,  with  a  view  to  respecting  the  institutional  independence  of  Banka 

Slovenije,  the  draft  law  should  specify  that  the  Court  of  Audit  may  not  give  instructions  to  Banka 

Slovenije, nor may it seek to influence the members of Banka Slovenije’s decision-making bodies 

in  situations  where  this  may  have  an  impact  on  Banka  Slovenije’s  fulfilment  of  its  ESCB-related 
tasks21.  Additionally,  the  activities  of  Banka  Slovenije’s  independent  external  auditor,  which  the 

Council approves pursuant to Article 27.1 of the Statute of the ESCB, should not be prejudiced.  

4.3  The ECB recommends that the draft law should define the precise scope of the audit provided as 

regards Banka Slovenije’s supervisory activities so as to ensure that the principle of independence 

set out in Article 19 of Council Regulation (EC) No 1024/2013, as well as the limitations provided in 

Article 27.2 of the Statute of the ESCB and Article 20(7) of Council Regulation (EC) No 1024/2013 

as  regards  the  supervisory  tasks  conferred  on  the  ECB  by  Regulation  (EU)  No  1024/2013,  are 

respected. 

Further,  in  line  with  the  principle  of  independence  set  out  in  Article  19  of  Regulation  (EU) 

No 1024/2013,  the  ECB  recommends  that  the  audit  carried  out  by  the  Court  of  Audit  on  Banka 

Slovenije’s  supervisory  activities  should:  (a)  not  extend  to  the  application  and  interpretation  of 

supervisory law and practices; (b) not interfere with the tasks conferred on the ECB by Regulation 

(EC) No 1024/2013, nor be extended to result in an indirect audit of the ECB; and (c) be carried out 

on a non-political, independent and purely professional basis. 

19  
20  

21  

See the amendment of Article 52 of the Law on Banka Slovenije and of Article 25 of the Law on the Court of Audit. 
For the definition of the regularity and performance audits from the Law on the Court of Audit see footnote 10.  

Similarly, see paragraph 3.3 in Opinion CON/2011/9. It is noted that Article 2 of the Law on Banka Slovenije does not 
contain a prohibition against the Government and other bodies giving instructions to Banka Slovenije or seeking to 
influence  the  members  of  its  decision-making  bodies;  however  such  prohibition  is  contained  in  Article 130  of  the 
Treaty and Article 7 of the Statute of the ESCB. 

8 

 
                                                 
ECB-PUBLIC 

5. 

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

meetings 

The  proposed  changes  under  the  draft  law  that  extend  the  right  to  participate  in  meetings  of  Banka 

Slovenije’s Governing Board to the representative of the committee of the National Assembly responsible 

for  the  supervision  of  public  finances  are  fully  identical  to  the  previously  proposed  changes  The  ECB 
hereby reiterates 22 that 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 decisive23. 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 
tasks24 by that decision-making body or endangers compliance with the ESCB’s confidentiality regime. 

6. 

Reporting by Banka Slovenije to the National Assembly and confidentiality of information 25 

6.1  The  proposed  amendments  to  Article  26  of  the  Law  on  Banka  Slovenije  with  regard  to  Banka 

Slovenije’s  reporting  to  the  National  Assembly  and  the  proposed  amendment  to  Article  47  of  the 

Law on Banka Slovenije on the protection of confidential data, as well as the proposed amendment 

to Article 16 of the Law on Banking with regard to Banka Slovenije sharing confidential supervisory 

information  with  the  Court  of  Audit  for  the  purposes  of  the  proposed  audit  of  Banka  Slovenije’s 

supervisory activities, as proposed under Articles 1, 12 and 15 of the draft law, should be assessed 

with regard to applicable Union law. 

6.2  First,  the  proposed  new  Article  26(3)  of  the  Law  on  Banka  Slovenije  specifies  that  the  report 

addressed to the National Assembly should describe the work and the performance of the tasks of 

each of Banka Slovenije’s Governing Board members separately. However, the Governing Board is 

a collegial body; accountable as a whole to the National Assembly. Depending on the level of detail 

required for such a report, this provision raises concerns regarding  Banka Slovenije’s institutional 

independence  and  the  personal  independence  of  the  Governing  Board  members.  The  draft  law 

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

interfere with the independence of the Governing Board members as provided for in 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 pursuant to the Statute of the ESCB are observed26. 

22  
23  

24  

25  

26  

See paragraph 5.2 of Opinion CON/2015/8 and paragraph 3 of Opinion CON/2014/25. 
See, for example, page 22 of the ECB’s Convergence Report 2014. 

Pursuant to Article 2 of the Law on Banka Slovenije, 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. 
See paragraph 5.1 and 5.2 of Opinion CON/2014/25 and paragraph 5.3 of Opinion CON/2015/8. 

See, for example, p. 23 of the ECB’s Convergence Report 2014. 

9 

 
                                                 
6.3  Second,  as  pointed  out  by  the  ECB  in  its  Convergence  Reports 27,  the  obligation  of  professional 

ECB-PUBLIC 

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. Where access to an NCB’s information and 

documents is allowed under Union law, the NCBs should ensure that the receiving bodies protect 

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

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

amendments to Article 26 of the Law on Banka Slovenije with regard to Banka Slovenije’s reporting 

to  the  National  Assembly  and  the  proposed  amendment  to  Article  47  of  the  Law  on  Banka 

Slovenije  on  protection  of  confidential  data  should  comply  with  applicable  Union  laws,  including 

those governing the exchange of statistical and supervisory information, as well as the obligation of 

professional  secrecy.  In  this  respect,  the  ECB  welcomes  that  Articles  26  and  47  of  the  Law  on 

Banka Slovenije, as proposed under the draft law, include a provision that confidential information 

contained  in  reports  to  the  National  Assembly  must  be  handled  in  accordance  with  the  laws 

governing the protection of confidential information. However, it should be clear that the proposed 

amendments refer not only to national laws in this respect but also to Union law, including Article 

37  of  the  Statute  of  the  ESCB.  For  purposes  of  clarity  and  to  avoid  doubt,  the  ECB  suggests 

inserting a specific reference to the obligation of professional secrecy laid down in Article 37 of the 

Statute of the  ESCB  in the amendments to Articles 26 and  47 of the  Law on Banka Slovenije. In 

addition,  the  ECB  recommends  that  the  conditions  for  disclosing  confidential  information  to  the 

National  Assembly,  as  referred  to  in  paragraphs  6.4  and  6.5,  are  also  respected  when  Banka 

Slovenije reports to the National Assembly. 

Furthermore,  without  prejudice  to  the  ECB’s  observations  regarding  the  specific  protection  of 

statistical or supervisory information laid down in Union law and referred to in paragraphs 6.4 and 

6.5, 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, and subject to 

compliance with the conditions in paragraph 5 regarding participation of third party representatives 

in  Banka  Slovenije’s  Governing  Board  meetings,  a  representative  of  the  National  Assembly’s 

committee  for  finance  and  monetary  policy  may  participate  in  meetings  of  the  Governing  Board 

where they can become privy to any confidential information, including the details on granting State 

aid to credit institutions.  

6.4  Third,  with  respect  to  the  exchange  of  confidential  statistical  information,  it  is  reiterated  that 
according  to  Article  8(3)  of  Council  Regulation  (EC)  No  2533/98 28,  ESCB  members  shall  take  all 

the  necessary  regulatory,  administrative,  technical  and  organisational  measures  to  ensure  the 

physical  and  logical  protection  of  confidential  statistical  information.  The  ECB  recalls  that 

27  
28  

See, for example, p. 27 of the ECB’s Convergence Report 2014. 
Council Regulation (EC) No 2533/98 of 23 November 1998 concerning the collection of statistical information by the 
European Central Bank (OJ L 318, 27.11.1998, p. 8). 

10 

                                                 
ECB-PUBLIC 

confidential  statistical  information  collected  pursuant  to  Council  Regulation  (EC)  No  2533/98  may 

only be used for the purposes defined in Article 8(1) of that Regulation, in particular for the exercise 

of the tasks of the ESCB and, as regards NCBs, in the field of prudential supervision or for other 

statutory NCB tasks. 

6.5  Fourth,  as  stated  in  Opinion  CON/2015/8,  while  Article  59(2)  of  Directive  2013/36/EU  of  the 
European  Parliament  and  of  the  Council 29  and  Article  84(5)  of  Directive  2014/59/EU  of  the 
European  Parliament  and  of  the  Council 30  allow  Member  States  to,  under  certain  conditions, 

authorise the disclosure of certain information relating to the prudential supervision of institutions to 

parliamentary  enquiry  committees,  courts  of  auditors  and  other  entities  in  charge  of  enquiries  in 

their  Member  State,  such  disclosure  should  not  be  made  to  the  National  Assembly  per  se.  With 
regard  to  the  amendments  in  the  draft  law  to  protect  confidential  information31,  additional 

safeguards for the exchange of confidential information with a parliamentary inquiry committee and 

the Court of Audit as referred to in Article 59(2) of Directive 2013/36/EU must always be observed: 

(a)  the  parliamentary  enquiry  committee  and  the  Court  of  Audit  must  have  a  ‘precise  mandate’ 

under  national  law;  (b)  the  information  must  be  ‘strictly  necessary’  for  fulfilling  that  mandate; 

(c) persons with access to the information are subject to professional secrecy requirements under 

national law that are at least equivalent to those referred to in Article 53(1) of Directive 2013/36/EU; 

(d)  where  the  information  originates  in  another  Member  State,  it  is  not  disclosed  without  the 

express agreement of the competent authorities that have disclosed it, and solely for the purposes 

for  which  those  authorities  gave  their  agreement;  and  (e)  to  the  extent  that  the  disclosure  of 

information relating to prudential supervision involves processing of personal data, any processing 

by  the  parliamentary  enquiry  committee  or  the  Court  of  Audit  must  comply  with  national  law 
transposing Directive 95/46/EC of the European Parliament and of the Council 32. Furthermore, the 

above  conditions  should  be  applied  not  only 

to 

information 

that 

is  confidential  under 

Directive 2013/36/EU but also to information that is confidential under other Union or national law 

provisions. 

7.  

Amendments to the Banka Slovenije’s staff status and other amendments  

7.1  The  draft  law  states  that  Banka  Slovenije  must  prepare  and  implement  a  financial  plan, 

employment and dismissal policy, and must use resources for salaries in accordance with the laws 

and regulations applicable for direct and indirect State budget users. While the ECB welcomes the 

fact that the preparation and implementation of the necessary plans are left to Banka Slovenije, the 

29  

30  

31  
32  

Directive  2013/36/EU  of  the  European  Parliament  and  of  the  Council  of  26  June  2013  on  access  to  the  activity  of 
credit  institutions  and  the  prudential  supervision  of  credit  institutions  and  investment  firms,  amending  Directive 
2002/87/EC and repealing Directives 2006/48/EC and 2006/49/EC (OJ L 176, 27.6.2013, p. 338). 
Directive 2014/59/EU of the European Parliament and of the Council of 15 May  2014 establishing a framework for 
the recovery and resolution of credit institutions and investment firms and amending Council Directive 82/891/EEC, 
and  Directives  2001/24/EC,  2002/47/EC,  2004/25/EC,  2005/56/EC,  2007/36/EC,  2011/35/EU,  2012/30/EU  and 
2013/36/EU,  and  Regulations  (EU)  No  1093/2010  and  (EU)  No  648/2012,  of  the  European  Parliament  and  of  the 
Council (OJ L 173, 12.6.2014, p. 190). 

Articles 26(4) and 47(2) of the Law on Banka Slovenije, as proposed under the draft law. 
Directive  95/46/EC  of  the  European  Parliament  and  of  the  Council  of  24  October  1995  on  the  protection  of 
individuals  with  regard  to  the  processing  of  personal  data  and  on  the  free  movement  of  such  data  (OJ  L  281, 
23.11.1995, p.31). 

11 

 
                                                 
ECB-PUBLIC 

restrictions  placed  on  Banka  Slovenije’s  discretion  by  the  laws  and  regulations  in  question  raise 

concerns. As indicated in the ECB’s convergence reports, Member States may not put their NCBs 

in a position where they have insufficient financial resources to carry out their ESCB-related tasks. 

Additionally, the principle of financial independence requires an NCB to have sufficient means not 

only  to  perform  its  ESCB-related  tasks,  but  also  its  national  tasks. Thus,  the  implementation  of  a 

financial  plan  in  accordance  with  the  applicable  laws  and  regulations  and  its  impact  on  Banka 

Slovenije’s financial independence needs to be sufficiently addressed in the draft law. 

7.2  Further,  Member  States  may  not  impair  an  NCB’s  ability  to  employ  and  retain  the  qualified  staff 

necessary for the NCB to perform independently the tasks conferred on it by the Treaty, the Statute 

of the ESCB and national legislation. Additionally, an NCB may not be put into a position where it 

has  limited  control  or  no  control  over  its  staff,  or  where  the  government  of  a  Member  State  can 
influence  its  policy  on  staff  matters33.  In  this  regard,  the  ECB  understands,  in  particular,  that  the 

laws  and  regulations  applicable  for  direct  and  indirect  State  budget  users  impose  strict  limits  on 

remuneration  –  through  set  salary  structures  and  salary  bands  –  which  may  entail  a  decrease  in 

salaries for Banka Slovenije staff. Any amendment to the legislative provisions on the remuneration 

for  members  of  an  NCB’s  decision-making  bodies  and  its  employees  should  be  decided  in  close 

and  effective  cooperation  with  the  NCB,  taking  due  account  of  its  views,  to  ensure  the  ongoing 
ability of the NCB to independently carry out its tasks34 and, hence, its financial independence. In 

addition,  any  changes  that  may  affect  the  remuneration  of  Banka  Slovenije’s  Governing  Board 

members  should,  as  a  matter  of  principle  and  in  order  to  ensure  the  independence  of  those 
members,  apply  only  in  respect  of  future  appointments35.  Similarly,  any  alteration  to  the 

remuneration  of  Banka  Slovenije’s  Governing  Board  members  that  results  from  changes  made 

pursuant to the Law on the public sector salary system should, again as a matter of principle, apply 

only in respect of future appointments. 

7.3  The draft law also proposes that Banka Slovenije staff are to be subject to the laws and regulations 

governing public servants and, additionally, that such staff and Banka Slovenije’s Governing Board 
members should be subject to the public sector salary system 36. Since the proposed amendments 

withdraw Banka Slovenije’s authority to determine the legal relationships and career policies for all 

categories of staff and transfer this authority to the government, the ECB considers them to reduce 

Banka  Slovenije’s  independence.  The  ECB  therefore  recommends  that  sufficient  safeguards  be 

introduced,  at  least  for  example  by  providing  that  Banka  Slovenije  continues  to  autonomously 

regulate certain features of the legal relationships and career policies for all categories of staff, in 

order to ensure that Banka Slovenije’s ability to carry out all its tasks, particularly its ESCB-related 

tasks, will not be affected.  

7.4  Finally, the proposal that gives Banka Slovenije’s Governor the possibility to dismiss the directors 

or  deputy  directors  of  its  departments  without  providing  any  grounds  is,  in  principle,  a  matter  of 

33  
34  

35  
36  

See Opinion CON/2008/9, Opinion CON/2008/10 and Opinion CON/2012/89. 
The  main  opinions  are  CON/2010/42,  CON/2010/51,  CON/2010/56,  CON/2010/69,  CON/2010/80,  CON/2011/104, 
CON/2011/106, CON/2012/6, CON/2012/86 and CON/2014/7. 
See the ECB’s Convergence Report June 2014, p. 23. 
Currently,  staff  matters  at  Banka  Slovenije  are  regulated  with  acts  adopted  by  Banka  Slovenije  and  in  accordance 
with the Law governing employment relationships (see Article 42 of the Law on Banka Slovenije). 

12 

                                                 
national  law.  Nevertheless,  if  adopted,  the  mere  existence  of  such  a  possibility  could  have  a 

negative impact on Banka Slovenije’s efforts to attract qualified staff. 

ECB-PUBLIC 

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

Done at Frankfurt am Main, 18 December 2015. 

[signed] 

The President of the ECB 

Mario DRAGHI 

13