Opinion of the European Central Bank of 24 April 2017 on the Payment Services, Services of Issuing Electronic Money and Payment Systems Act (CON/2017/15)
Date: 2017-04-24
Institutions: European Central Bank
Subjects: Slovenia, electronic banking, electronic money, national law, payment system, provision of services

EN 

ECB-PUBLIC 

OPINION OF THE EUROPEAN CENTRAL BANK 

of 24 April 2017  

on the Payment Services, Services of Issuing Electronic Money and Payment Systems Act  

(CON/2017/15) 

Introduction and legal basis 

On 13 February 2017 the European Central Bank (ECB) received a request from the Slovenian Ministry 

of  Finance  for  an  opinion  on  a  draft  Payment  Services,  Services  for  Issuing  Electronic  Money  and 

Payment Systems Act (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 fifth indent of Article 2(1) of Council Decision 98/415/EC1, as 

the draft law relates to payment and settlement systems. 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. 

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Purpose of the draft law 

The  main  objective  of  the  draft  law  is  to  transpose  Directive  (EU)  No  2015/2366  on  payment 
services  in  the  internal  market  (hereinafter  the  ‘Directive’)2  into  Slovenian  law.  The  draft  law  also 

amends  some  existing  provisions  relating  to  payment  systems.  The  draft  law  does  not  apply  to 

systemically  important  systems,  which  the  draft  law  clarifies  are  covered  by  Regulation  of  the 
European Central Bank (EU) No 795/2014 (ECB/2014/28)3. 

1.1  Under  existing  national  law4  Banka  Slovenije  issues  two  types  of  authorisations  for  payment 

systems: (i) an authorisation for the establishment of a payment system, issued to the participants 

in  the  payment  system,  and  (ii)  an  authorisation  for  the  provision  of  payment  system  operation 

services,  issued  to  payment  system  operators.  The  draft  law  provides  that  in  the  future  Banka 

Slovenije  will  issue  only  one  authorisation  to  operate  a  payment  system.  For  this  purpose,  the 

operator  of  a  payment  system  is  defined  as  the  entity  responsible  for  operating  the  payment 

system  in  compliance  with  the  law  and  for  the  comprehensive  risk  management  of  the  payment 

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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). 
Directive  (EU)  No  2015/2366  of  the  European  Parliament  and  of  the  Council  of  25  November  2015  on  payment 
services  in  the  internal  market,  amending  Directives  2001/65/EC,  2009/110/EC  and  2013/36/EU  and  Regulation 
(EU) No 1093/2010, and repealing Directive 2007/64/EC (OJ L 337, 23.12.2015, p. 35). 

Regulation  of  the  European  Central  Bank  (EU)  No  795/2014  of  3  July  2014  on  oversight  requirements  for 
systemically important payment systems (ECB/2014/28) (OJ L 217, 23.7.2014, p.16). 
Payment Services and Systems Act (Zakon o plačilnih storitvah in sistemih), published in the Official Gazette of the 
Republic of Slovenia, No. 58/09, 34/10, 9/11, 32/12, 81/15 and 47/16.  

 
 
 
 
                                                 
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system.  When  applying  for  an  authorisation  to  operate  a  payment  system,  the  applicant  must 

submit  the  rules  that  apply  to  the  payment  system.  Any  existing  authorisations  for  the 

establishment of a payment system and for the provision of payment system operation services are 

to be regarded as authorisations to operate a payment system under the draft law.  

1.2  The  draft  law  sets  out  a  number  of  new  basic  requirements  for  payment  system  operators, 

including  some  additional  requirements  to  be  fulfilled  by  the  operators  of  important  payment 

systems.  The  new  requirements  include  provisions  relating  to  the  legal  basis,  governance,  a 

framework  for  the  comprehensive  management  of  risks,  settlement  finality,  money  settlements 

(including a requirement that the operator of an important payment system must ensure that money 

settlements  are  made  in  central  bank  money),  participant  default  rules  and  procedures,  general 

business risk, operational risk, access and participation requirements, efficiency and effectiveness, 

communication  procedures  and  standards,  disclosure  of  rules,  key  procedures  and  market  data. 

More  detailed  requirements  will  be  subject  to  further  regulation  by  Banka  Slovenije  in  an 
implementing  regulation5.  The  draft  law  provides  that  entities  authorised  by  Banka  Slovenije  to 

operate a payment system may open a special fiduciary account with Banka Slovenije that will be 

used for the benefit of system participants exclusively for clearing and/or securitising claims and/ or 

performing obligations under payment orders.  

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General comments 

2.1  This opinion does not address the issue of the draft law’s effective implementation into Slovenian 

law of Directive (EU) No 2015/2366. The focus of this opinion is on the provisions of the draft law 

that amend existing provisions relating to payment systems. 

2.2  The  ECB  understands  that  despite  the  change  in  the  licensing  procedure  proposed  by  the  draft 

law,  the  aim  of  which  is  to  simplify  the  process  of  issuing  authorisations  to  operate  payment 

systems,  the  roles  of  Banka  Slovenije  with  respect  to  the  licensing  of  payment  systems  and  of 

payment system operators will remain unchanged.  

2.3  The ECB welcomes the fact that the provisions laying down the requirements for payment system 

operators  follow  the  principles  and  general  requirements  set  out  in  the  Eurosystem  oversight 
framework  for  retail  payment  systems6,  which  is  in  turn  derived  from  certain  principles  and  key 

considerations  applicable 

to  systemically 

important  systems  under 

the  Regulation  (EU) 

No 795/2014 (ECB/2014/28), pursuant to which the ECB has adopted the CPSS-IOSCO principles 
for  financial  market  infrastructures  (PFMIs)7.  The  draft  law  will  thus  facilitate  the  consistent  and 

harmonised application by Banka Slovenije of Eurosystem standards when conducting its oversight 

of payment systems in Slovenia.  

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7 

The requirements for the operation of the payment systems, including requirements related to risk management, are 
currently already set out in implementing regulation adopted by Banka Slovenije. See Banka Slovenije, Decision on 
payment systems (Sklep o plačilnih sistemih), Official Gazette of the Republic of Slovenia, No. 73/09 and 5/11. 
See the ECB’s note on a Revised oversight framework for retail payment systems, February 2016, available on the 
ECB’s website at www.ecb.europa.eu.  
See the Bank for International Settlements Committee on Payment and Settlement Systems’ (CPSS) and Technical 
Committee  of  the  International  Organization  of  Securities  Commission’s  (IOSCO)  Principles  for  financial  market 
infrastructures, April 2012, available at http://www.bis.org/cpmi/publ/d101a.pdf. 

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2.4  Although  the  draft  law  does  not  directly  implement  the  entire  set  of  PFMIs  identified  by  the 

Eurosystem as fundamental for the operation of retail payment systems, the ECB understands that 

more  detailed  requirements  may  be  specified  in  the  implementing  regulation  to  be  adopted  by 

Banka Slovenije. Banka Slovenije may consider including additional elements in the implementing 

regulation, such as an entity’s ability to implement default rules and procedures; ensuring the high 

quality  of  any  assets  held  to  cover  business  risks  and  maintaining  a  plan  for  raising  capital;  a 

requirement  for  periodic  reviews  of  risk  management  frameworks  and  for  clearly-defined 

operational  reliability  objectives  and  policies  designed  to  achieve  these  objectives;  and  a 

requirement for comprehensive physical and information security policies that address all potential 

vulnerabilities and threats. In this respect, the draft law provides a sufficient legal basis for Banka 

Slovenije  to  further  align  the  requirements  for  payment  system  operators  with  international 

standards.  

2.5  The  ECB  welcomes  the  fact  that  the  draft  law’s  provision  enabling  payment  system  operators  to 

open  a  special  fiduciary  account  with  Banka  Slovenije  is  designed  to  minimise  the  effects  of  the 
potential insolvency of a payment system operator on the settlement positions of participants in the 

payment  system,  thus  improving  the  security  of  settlement.  However,  in  line  with  the  principle  of 

central bank  independence, the ECB suggests that  this provision be  reformulated so as to  clarify 

that these entities do not have a right to open such an account with Banka Slovenije, but that the 

decision to open such an account should rest with the Banka Slovenije.  

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

Done at Frankfurt am Main, 24 April 2017. 

[signed] 

The President of the ECB 

Mario DRAGHI 

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