Opinion of the European Central Bank of 8 June 2016 on consumer credit (CON/2016/31)
Date: 2016-06-08
Institutions: European Central Bank
Subjects: Slovenia, central bank, consumer credit, consumer protection, financial supervision, national law, real estate credit

EN 

ECB-PUBLIC 

OPINION OF THE EUROPEAN CENTRAL BANK 

of 8 June 2016 

on consumer credit 

(CON/2016/31) 

Introduction and legal basis 

On  28  April  2016  the  European  Central  Bank  (ECB)  received  a  request  from  the  Slovenian  Ministry  of 

Economic Development and Technology for an opinion on a draft law on consumer credit (hereinafter the 
‘draft law’)1. 

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  The  Slovenian  Law  on  consumer  credit  (hereinafter  the  ‘Law  on  consumer  credit’) 3  currently 
implements  Directive  2008/48/EC  of  the  European  Parliament  and  of  the  Council 4  and  also 

contains a number of specific rules concerning consumer credit agreements relating to immovable 

property. The main purpose of the draft law is to implement Directive 2014/17/EU of the European 
Parliament and of the Council in Slovenian law5. The main effect of the draft law is to amend, by 

way  of  a  recast,  the  existing  framework  for  consumer  credit  agreements  relating  to  immovable 

property. 

1.2  Under  the  current  Law  on  consumer  credit,  entities  authorised  to  provide  consumer credit  by  the 

Ministry of Economic Development and Technology, banks authorised to provide banking services 
in  accordance  with  the  Law  on  banking6  and  a  few  other  entities  are  permitted  to  engage  in 
consumer lending, including as regards immovable property7. No authorisation is currently required 

for intermediaries arranging consumer credit. However, intermediaries must fulfil certain conditions 

in  the  pursuit  of  their  activity.  The  supervision  of  consumer  credit  providers  authorised  by  the 

1  
2  

Predlog zakona o potrošniških kreditih (ZPotK-2). 

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 potrošniških kreditih (ZPotK-1) (Ur. l. RS No 59/10, 77/11, 30/13 and 81/15). 

3  
4     Directive  2008/48/EC  of  the  European  Parliament  and  of  the  Council  of  23  April  2008  on  credit  agreements  for 

consumers and repealing Council Directive 87/102/EEC (OJ L 133, 22.5.2008, p.66). 
Directive  2014/17/EU  of  the  European  Parliament  and  the  Council  of  4  February  2014  on  credit  agreements  for 
consumers  relating  to  residential  immovable  property  and  amending  Directives  2008/48/EC  and  2013/36/EU  and 
Regulation (EU) No 1093/2010 (OJ L 60, 28.2.2014, p. 34). 
Zakon o bančništvu (ZBan-2) (Ur. l. RS No 25/15). 
Articles 29 and 30 of the Law on consumer credit. 

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Ministry of Economic Development and Technology and of their intermediaries is entrusted to the 
Market  Inspectorate8.  The  supervision  of  credit  institutions  and  entities  intermediating  consumer 
credit  for  credit  institutions  is  entrusted  to  Banka  Slovenije9.  The  Information  Commissioner 
supervises compliance with rules on the collection and processing of personal data 10. 

1.3  The  draft  law  introduces  new  conditions  for  the  provision  and  intermediation  of  consumer  credit 

relating  to  immovable  property.  In  particular,  in  order  to  increase  consumer  protection,  only  the 

following  groups  of  entities  will  be  permitted  to  provide  consumer  credit  relating  to  immovable 

property:  (a)  authorised  credit  institutions;  (b)  authorised  non-bank  financial  institutions  whose 

exclusive or main activity is financial leasing and (i) in which a bank has at least a 20% share of the 

institution’s  voting  rights  or  capital,  or  (ii)  whose  total  balance  sheet  is  at  least  EUR  50  000  000 

(hereinafter  ‘financial  leasing  companies’);  and  (c)  certain  other  entities  which  do  not  need  to  be 

authorised  (e.g.  employers  granting  credit  to  their  employees  free  of  interest  or  at  an  annual 
percentage  rate  of  charge  lower  than  those  applied  by  credit  institutions)11.  Intermediaries  of 

permitted providers will also be required to obtain authorisation in order to arrange consumer credit 
relating to immovable property12. 

1.4 

In  this  context,  in  addition  to  its  existing  supervisory  tasks13,  Banka  Slovenije  will  become 

responsible for: (a) authorising financial  leasing companies to  provide consumer credit relating  to 
immovable  property14;  (b)  authorising  intermediaries  arranging  consumer  credit  relating  to 
immovable property15; and (c) supervising financial leasing companies and their intermediaries with 

respect  to  consumer  credit  relating  to  immovable  property.  In  addition,  Banka  Slovenije  will: 
(a) have powers to impose supervisory measures and sanctions on supervised entities 16; (b) act as 

a  competent  authority  in  the  context  of  cross-border  intermediation  of  consumer  credit  relating  to 
immovable  property17;  (c)  serve  as  a  single  contact  point  for  cooperation  between  competent 
authorities of different Member States for the purposes of Directive 2014/17/EU18; and (d) establish 

and maintain a public register of financial leasing  companies granting consumer credit relating  to 

immovable  property  and  of  intermediaries  arranging  consumer  credit  relating  to  immovable 
property19. 

1.5  Under  the  Law  on  consumer  credit,  as  a  general  rule,  consumer  loans  may  be  transferred  from 

consumer  credit  providers  only  to  entities  that  are  also  permitted  to  act  as  consumer  credit 

providers.  However,  this  rule  does  not  apply  to  credit  institutions,  which  may  thus  transfer 

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9  
10  
11  
12  
13  
14  
15  
16  
17  
18  
19  

Article 34 of the Law on consumer credit. 
Article 33 of the Law on consumer credit.  

Article 36 of the Law on consumer credit. 
Article 58 of the draft law. 

Article 62(1) of the draft law. 
Article 29 and 33 of the Law on consumer credit in conjunction also with the Law on banking. 

Article 58(1), third indent, in conjunction with Article 66 of the draft law. 
Article 62 of the draft law. 

Articles 77 and 83 and also Articles 71 and 65 of the draft law. 
Article 72, 73, 77 and 84 to 87 of the draft law. 
Article 74 of the draft law. 

Articles 68 and 63 of the draft law. 

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consumer  loans  to  any  third  party20.  With  regard  to  entities  that  are  not  permitted  to  act  as 

consumer credit providers, the draft law limits the scope of eligible third parties to: (a) securitisation 

special  purpose  vehicles,  (b)  the  Slovenian  Bank  Asset  Management  Company  (BAMC),  and 
(c) other  entities  managing  impaired  assets  of  banks21.  These  entities  must  fulfil  the  same 

obligations  towards  the  consumer  as  a  consumer  credit  provider,  and  may  further  transfer  the 
credit only to a permitted consumer credit provider 22. Under the draft law, Banka Slovenije will be 
responsible for the supervision of the above entities with respect to consumer credit 23.  

2. 

General observations  

2.1  This opinion does not address whether the draft law effectively implements Directive 2014/17/EU in 

Slovenian law. The ECB will only assess those provisions of the draft law that may impact on the 

role  and  tasks  of  Banka  Slovenije  as  a  central  bank,  a  financial  supervisory  authority  and  as  a 

member of the Eurosystem and the European System of Central Banks (ESCB).  

2.2  The draft law broadens and expands Banka Slovenije’s current supervisory functions and activities 

in the consumer credit field beyond its existing responsibilities with respect to credit institutions and 

their intermediaries, by conferring on it the following tasks: 

(1) 

authorising  financial  leasing  companies,  as  regards  the  provision  of  consumer  credit 

relating to immovable property, and intermediaries that arrange consumer credit relating 

to immovable property; 

(2) 

supervising  financial  leasing  companies  and  their  intermediaries  with  respect  to  the 

consumer  protection-related  obligations  in  the  field  of  consumer  credit  relating  to 

immovable property; 

(3) 

supervising  certain  entities  permitted  to  be  transferees  of  consumer  credit  from  entities 

authorised to perform banking activity or to provide financial services listed in paragraph 

1.5. 

The ECB underlines that, in the context of a proposed conferral of new tasks on an ESCB member, 

it  is  necessary  to  assess  whether  this  contravenes  the  prohibition  of  monetary  financing  under 

Article 123 of the Treaty. The ECB has developed the guidance set out in paragraphs 2.2.1 to 2.2.3   

on the basis of which it may decide whether a new task conferred on a national central bank (NCB) 

is to be considered a central banking task or a government task for the purposes of assessing such 
conferral of tasks against the prohibition of monetary financing 24. 

2.2.1  General considerations 

First,  the  systematic  categorisation  of  tasks  assigned  to  NCBs  as  central  banking  or  government 

tasks applies to genuinely new tasks that did not exist in the past or did not form an integral part of 

the  central  banking  tasks already  assigned  to  the  NCB  in  the  past.  In  recognition  of  the  different 

20  
21  
22  
23  
24  

Article 20(4) of the Law on consumer credit. 

Article 23(4) of the draft law. 
Article 23(5) of the draft law. 
Article 77(2)(3) in conjunction with Article 23 and of the draft law. 
See Opinion CON/2015/22. All ECB opinions are published on the ECB’s website at www.ecb.europa.eu. 

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Member  States’  legal  frameworks,  central  banking  traditions  and  national  set-ups,  the  tasks 

currently discharged by an NCB as central banking tasks are not reviewed and re-categorised, but 

may be reassessed if their substance is amended. 

Second, it needs to be emphasised that when Member States decide to confer new tasks on their 

NCBs,  due  regard  must  be  given  to  the  role  of  the  NCB  as  part  of  the  ESCB  or  Eurosystem,  as 

applicable,  and  to  the  requirement  of  central  bank  independence.  The  principle  of  financial 

independence, which is a key aspect of the principle of central bank independence as laid down in 

Article  130  of  the  Treaty,  requires  that  the  Member  States  may  not  put  their  NCBs  in  a  position 

where  they  have  insufficient  financial  resources  to  carry  out  their  ESCB-  or  Eurosystem-related 

tasks, as applicable. Accordingly, an NCB must have sufficient financial means not only to perform 

its ESCB- or Eurosystem-related tasks but also its national tasks (e.g. financing its administration 
and own operations) 25. Where an NCB considers that the allocation of a new task would impinge 

on its financial independence, because it would not have sufficient means to focus primarily on its 

ESCB-  or  Eurosystem-related  tasks,  or  that  the  discharge  of  the  new  task  would  impose  a 

disproportionate burden on it, the NCB should be able to object to the new task being allocated to 

it.  

Third, central banking tasks comprise in particular those tasks that are related to the tasks listed in 

Article 127(2), (5) and (6) of the Treaty. 

Fourth,  new  tasks  conferred  on  an  NCB  which  are  atypical  of  NCBs’  tasks,  or  which  are  clearly 

discharged on behalf of and in the exclusive interest of the government or of other public entities, 

should be considered as government tasks. 

2.2.2  Specific considerations 

Consumer protection tasks related to financial services are central banking tasks to the extent that 

these  complement  existing  supervisory  powers  and  thus  contribute  to  the  soundness  of  the 

financial markets and the preservation of confidence in the marketplace.  

An important criterion for qualifying a new task as a government task is the impact of the task on 

the institutional, financial and personal independence of the NCB. In particular, the following should 

be taken into account. 

First,  it  should  be  assessed  whether  the  performance  of  the  new  task  creates  inadequately 

addressed  conflicts  of 

interests  with  existing  central  banking 

tasks,  without  necessarily 

complementing  the  NCB’s  existing  central  banking  tasks.  If  a  conflict  of  interest  arises  between 

existing  and  new  tasks,  there  should  be  sufficient  mitigation  measures  in  place  to  adequately 

address  that  conflict.  Complementarity  between  the  new  task  and  existing  central  banking  tasks 

should not, however, be interpreted broadly, as this could lead to the creation of an indefinite chain 

of  ancillary  tasks.  The  assessment  of  the  complementarity  of  the  new  task  should  also  take  into 

account  the  financing  of  that  task.  In  the  event  of  a  conflict  of  interest  between  prudential 
supervision and consumer protection, prudential supervisory considerations must prevail26. 

25  
26  

See the ECB’s 2014 Convergence Report, p. 25. 

See paragraph 3.1 of Opinion CON/2015/21. 

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Second,  it  should  be  assessed  whether  without  new  financial  resources  the  performance  of  the 

new task places a disproportionate burden  on the financial or  organisational capacity of the NCB 

and may negatively impact on its capacity to properly perform its existing central banking tasks. 

Third,  it  should  be  assessed  whether  the  performance  of  the  new  task  is  aligned  with  the 

institutional  set-up  of  the  NCB,  in  particular  as  regards  central  bank  independence  and 

accountability considerations. 

Fourth, it should be assessed whether the performance of the new task entails substantial financial 

risks. 

Fifth, it should be assessed whether the performance of the new task exposes the members of the 

NCB’s decision-making bodies to political risks that are disproportionate and could also impact on 

their personal independence and, in particular, the guarantee of the Governor’s term of office under 

Article 14.2 of the Statute of the European System of Central Banks and of the European Central 

Bank. 

2.2.3  The final assessment of the qualification of a task given to an NCB as either falling within the scope 

of  a  central  banking  task  or  a  government  task  will  be  guided  by  the  objective  of  ensuring  the 

consistent  application  of  the  prohibition  of  monetary  financing  within  the  Eurosystem  and  the 

ESCB. 

3. 

Specific observations 

3.1  Conferral on Banka Slovenije of new tasks 

The  draft  law  broadens  Banka  Slovenije’s  current  supervisory  responsibilities  in  the  field  of 

consumer  credit  to  include  the  tasks  of:  authorising  and  supervising  non-bank  financial  leasing 

companies providing consumer credit relating to immovable property, and intermediaries arranging 

consumer  credit  relating  to  such  property;  and  supervising  transferees  of  consumer credit.  In  the 

light  of  the  guidance  set  out  in  paragraphs  2.2.1  to  2.2.3,  it  must  be  assessed  whether  Banka 

Slovenije’s new tasks could constitute a breach of the monetary financing prohibition. 

3.2  Principle of financial independence  

The  principle  of  financial  independence  requires  NCBs  to  have  sufficient  means  to  carry  out  not 

only their ESCB-related tasks but also their national tasks, both from an operational and financial 
perspective27. In this regard  the  ECB notes that,  under  the draft law, financial leasing companies 

that may provide consumer credit relating to immovable property and intermediaries arranging such 

consumer credit will be required to pay to Banka Slovenije a fee determined by Banka Slovenije for 
their  authorisation28. 

leasing  companies  and  authorised 

In  addition,  authorised 

financial 

intermediaries  arranging  consumer  credit  relating  to  immovable  property  will  also  pay  to  Banka 

Slovenije an annual fee to cover the actual costs incurred by Banka Slovenije in the performance of 
its supervisory tasks29. Whilst the ECB welcomes such provisions of the draft law, it notes that the 

draft law does not specify how costs related to the supervision of the entities that are permitted to 

27  
28  
29  

See ECB’s 2014 Convergence Report, p. 25. 
Article 76 of the draft law.  

Article 78 of the draft law. 

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acquire consumer loans from banks, such as the BAMC or securitisation special purpose vehicles, 

are to be financed. In this regard the ECB invites the consulting authority to consider extending the 

cost-recovery regime to cover transferees of consumer credit. 

3.3 

Links to tasks listed in Article 127(5) of the Treaty  

The  authorisation  and  supervision  of  non-bank  financial  leasing  companies  providing  consumer 

credit relating to immovable property and of intermediaries arranging such consumer credit can be 

considered  as  tasks  related  to  those  referred  to  in  Article  127(5)  of  the  Treaty,  based  on  the 

understanding  that  they  are  complementary  to  the  supervisory  tasks  exercised  by  the  NCB, 

particularly where, as in this case, Banka Slovenije already supervises credit institutions, including 

their  consumer  credit  and  financial  leasing  activities  and  their  intermediaries,  and  has  the  task  of 
ensuring  the  stability  of  the  financial  system 30.  The  new  tasks  are  also  complementary  to  its 

existing  supervisory  powers  because  they  are  financed  through  fees  in  a  manner  similar  to  the 
system used for financing the supervision of entities actively carrying out banking activity31. 

3.4  Atypical tasks 

A  number  of  Member  States  have  conferred  on  their  NCBs  supervisory  tasks  related  to  the 
provision  of  consumer  credit32.  The  ECB  has  generally  accepted  the  allocation  of  such  tasks  to 
NCBs provided they do not interfere with the performance of the NCB’s ESCB-related tasks33. The 

tasks  of  an  NCB  with  regard  to  the  supervision  of  non-bank  consumer  credit  providers  and 

intermediaries can therefore, if this condition is met, be regarded as tasks not atypical of a central 

bank, particularly if, as in the case of Banka Slovenije, it has a statutory responsibility for banking 

supervision,  including  supervising  the  provision  of  consumer  credit  and  financial  leasing,  and 
financial stability34.  

3.5   Discharge of tasks on behalf of and in the exclusive interest of the Government or of other public 

entities 

Banka Slovenije is designated by the draft law as the sole supervisory authority for financial leasing 

companies  and  intermediaries  arranging  consumer  credit  relating  to  immovable  property,  and  of 

certain  non-bank  transferees  of  consumer  credit,  in  its  own  name  and  not  on  behalf  of  any  other 
authority35.  There  is  no  indication  that,  in  carrying  out  its  supervisory  functions,  Banka  Slovenije 

would act exclusively in the interest of another public entity. 

30  

31  
32  
33  

34  

In  this  regard,  see  paragraph  3.3  of  Opinion  CON/2015/54;  paragraph  3.1.2  of  Opinion  CON/2015/37;  paragraph 
3.1.2 of Opinion CON/2015/45; paragraphs 3.2 and 3.3 of Opinion CON/2015/21.  

Article 238 of the Law on banking. 
See paragraph 3.4 of Opinion CON/2015/54. 

See, for example, paragraphs 2.1 to 2.3 of Opinion CON/2006/38, paragraphs 2.1 and 2.2 of Opinion CON/2006/47, 
paragraphs 2.1 to 2.5 of Opinion CON/2007/29, and paragraph 2 of Opinion CON/2009/71. 

Article  33  of  the  Law  on  consumer  credits,  the  Law  on  banking  and  the  Law  on  Banka  Slovenije  (Zakon  o  Banki 
Slovenije) (ZBS-1) (Ur. l. RS No 72/06 – official consolidated text, and 59/11). 

35   With Information Commissioner supervising compliance with the rules on the collection and processing of personal 

data (Article 77(5) of the draft law). 

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3.6  Extent  to  which  the  performance  of  tasks  is  aligned  with  Banka  Slovenije’s  institutional  set-up,  in 

particular as regards accountability considerations 

Given  the  complementarity  of  the  new  tasks  with  Banka  Slovenije’s  existing  supervisory  tasks,  in 

particular  in  the  field  of  supervision  of  credit  institutions,  including  their  consumer  credit  and 

financial leasing activities, and their intermediaries, the new tasks appear to broadly fit into Banka 

Slovenije’s  institutional  set-up.  However,  the  draft  law  does  not  contain  provisions  clarifying  the 

tools  and  powers  necessary  for  Banka  Slovenije  to  effectively  perform  its  supervisory  tasks  in 

relation  to  transferees  of  consumer  credit,  such  as  the  BAMC  and  securitisation  special  purpose 

vehicles, which may expose Banka Slovenije to reputational risks. 

3.7  Extent  to  which  the  performance  of  tasks  is  proportionate  to  Banka  Slovenije’s  financial  and 

operational capacity and its ability to perform its ESCB-related tasks 

As noted above, since not all of Banka Slovenije’s costs related to its new tasks are covered under 

the draft law (which does not specify whether the costs of supervision of transferees of consumer 

credits,  such  as  the  BAMC  or  securitisation  special  purpose  vehicles,  would  be  reimbursed),  the 

ECB invites the consulting authority to consider introducing the same mechanism for all supervised 

entities as regards the financing of costs incurred by Banka Slovenije in the performance of its new 

tasks. 

3.8  Extent to which the performance of tasks entails substantial financial risks  

The draft law does not contain any specific provisions on liability for the performance of supervisory 

tasks. Banka Slovenije’s potential liability for the performance of the new tasks given to it under the 

draft  law  will  be  thus  subject  to  the  rules  on  liability  for  damage  caused  in  the  exercise  of  public 
authority36.  

3.9  Conclusion  

The ECB considers that there are grounds for regarding Banka Slovenije’s new tasks of authorising 

financial  leasing  companies  providing  financial  leasing  services  relating  to  immovable  property  to 

consumers  and  intermediaries  arranging  consumer  credit  relating  to  immovable  property,  as  well 

as  supervising  these  financial  leasing  companies,  their  intermediaries,  and  certain  transferees  of 

consumer credit transferred by entities authorised to perform banking activity or to provide financial 

services,  as  central  banking  tasks,  in  the  sense  that  they  can  be  regarded  as  complementing 

Banka Slovenije’s existing banking supervisory functions, including in the area of consumer credit. 

In  addition,  the  fact  that  the  supervised  entities  will  contribute  to  the  costs  incurred  by  Banka 

Slovenije in performing its new supervisory tasks, by paying authorisation and annual supervisory 

fees,  which  will  also  have  a  positive  impact  on  Banka  Slovenije’s  financial  capacity  to  assume 

these tasks, may be regarded as reflecting such complementarity. However, the draft law does not 

contain  provisions  clarifying  the  tools  and  powers  necessary  for  Banka  Slovenije  to  effectively 

oversee  compliance  by  certain  transferees  of  consumer  credits,  such  as  the  BAMC  and 

securitisation  special  purpose  vehicles,  with  consumer  protection  rules  at  the  operational  level, 

which may expose Banka Slovenije to reputational risks. In addition, the draft law does not specify 

36  

Article 26 of the Slovenian Constitution in conjunction with the Code of Obligations (Obligacijski zakonik) (OZ) (Ur. l. 
RS No 97/07 – official consolidated text). 

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how  the  supervisory  costs  incurred  by  Banka  Slovenije  in  relation  to  these  entities  are  to  be 

reimbursed. 

ECB-PUBLIC 

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

Done at Frankfurt am Main, 8 June 2016. 

[signed] 

The President of the ECB 

Mario DRAGHI 

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