Opinion of the European Central Bank of 12 June 2017 on the auditing of Banka Slovenije’s business operations (CON/2017/24)
Date: 2017-06-12
Institutions: European Central Bank
Subjects: Slovenia, account, auditing, central bank, national law, supervisory body

EN 

ECB-PUBLIC 

OPINION OF THE EUROPEAN CENTRAL BANK 

of 12 June 2017  

on the auditing of Banka Slovenije’s business operations 

(CON/2017/24) 

Introduction and legal basis 

On 11 May 2017, 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 Bank  of  Slovenia Act 

and  establishing  rules  for  the  auditing  of  Banka  Slovenije’s  operations  by  the  national  Court  of  Audit 

(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/EC1 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  Banka Slovenije’s financial accounts must be audited pursuant to Article 27.1 of the Statute of the 

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

the ESCB’). The purpose of the draft law is to establish rules for the auditing of Banka Slovenije’s 
operations  by  the  national  Court  of  Audit2  in  a  manner  compatible  with  Banka  Slovenije’s 
independence3. 

1.2  Under  the  draft  law,  the  Court  of  Audit  must  audit  the  regularity  and  performance  of  Banka 
Slovenije’s business operations. Pursuant to Article 20(3) of the Court of Audit Act4, the following 

terms have the following meanings: (a) a ‘regularity audit’ means obtaining relevant and sufficient 

data to enable an opinion to be expressed on the compliance of an operation with regulations and 

guidelines that any user of public funds is required to observe when conducting an operation; and 

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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). 

Pursuant to Article 1 of the Court of Audit Act, the Court of Audit is the supreme audit institution for supervising State 
accounts,  the  State  budget  and  all  public  spending  in  Slovenia.  In  relation  to  other  State  authorities,  the  Court  of 
Audit is an autonomous and independent authority. 

The draft law provides for the introduction of these rules by adding a new article to the Bank of Slovenia Act (Ur. l. 
RS No 72/06 – official consolidated text and 59/11). 
Court of Auditors Act (Ur. l. RS No 11/01 and 109/12). 

 
 
 
 
                                                 
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(b) a ‘performance audit’  means obtaining  relevant and  sufficient data to enable  an  opinion  to be 

expressed on the economy, efficiency and effectiveness of a business operation.  

1.3  The draft law expressly states that the Court of Audit must not audit: (a) any actions that constitute 

decisions  on  the  implementation  of  monetary  policy,  in  accordance  with  the  rules  established  by 

the ECB’s decision-making bodies; and (b) the application and interpretation of supervisory law and 

practices  carried  out  by  Banka  Slovenije  on  the  basis  of  the  Bank  of  Slovenia  Act  or  other 
provisions  within  the  framework  of  the  single  supervisory  mechanism  (SSM)5.  However,  the  draft 

law  seems  to  limit  this  exclusion  by  stating  that  the  Court  of  Audit  may  audit  the  regularity  and 
performance of any Banka Slovenije decisions that have led to the use of public funds6. The ECB 

understands  that  under  the  draft  law  the  audit  must  not  interfere  with  or  encompass  Banka 

Slovenije’s  competences  as  part  of  the  European  System  of  Central  Banks  (ESCB),  the 

Eurosystem, the European System of Financial Supervision, the European Banking Authority, the 

European Systemic Risk Board, and the Single Resolution Mechanism. Nor must it entail a direct 

or indirect audit of the ECB, other members of the ESCB, or the Eurosystem.  

1.4  The  draft  law  provides  that,  notwithstanding  the  provisions  of  the  Court  of  Audit  Act,  Banka 

Slovenije  is  not  obliged  to  submit  to  the  Court  of  Audit  reports  concerning  the  elimination  of  any 

irregularities  and  inexpediencies  identified.  The  draft  law  further  specifies  that  Banka  Slovenije 

must explain any deviation from the recommendations proposed by the Court of Audit in its audit 

report.  

1.5  The draft law provides that confidential information, within the meaning of Article 37 of the Statute 

of  the  ESCB,  may  be  obtained  by  the  Court  of  Audit  in  accordance  with  the  rules  governing  the 

operations of the ESCB.  It provides  further that other confidential information, including  statistical 

and supervisory data, whose exchange is regulated by Union rules, may be obtained by the Court 

of Audit in accordance with these rules. The draft law also stipulates that the auditors and officers 

of the Court of Audit and other persons who are in any legal relationship whatsoever with the Court 

of  Audit  must  maintain  the  confidentiality  of  all  information  that  they  become  aware  of  when 
auditing Banka Slovenije and which is regarded as confidential pursuant to the Banking Act7.  

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Council Regulation (EU) No 1024/2013 of 15 October 2013 conferring specific tasks on the European Central Bank 
concerning policies relating to the prudential supervision of credit institutions (OJ L 287, 29.10.2013, p. 5). 
In particular, the draft law states that ‘the audit does not cover the application and interpretation of supervisory law 
and practices carried out by Banka Slovenije on the basis of the Bank of Slovenia Act or other provisions and within 
the framework of the single supervisory mechanism (SSM) on the basis of Council Regulation (EU) No 1024/2013. 
Notwithstanding  the  previous  sentence  the  Court  of  Audit  may  audit  the  regularity  and  performance  of  those 
decisions of Banka Slovenije, which have led to the use of public funds.’ 

Banking  Act  (Ur.  l.  RS  No  25/15,  44/16  –  ZRPPB  and  77/16  –  ZCKR).  Article  14  of  the  Banking  Act  defines 
confidential information as any information obtained from banks or other persons in supervisory proceedings before 
Banka Slovenije or prepared by Banka Slovenije in the context of such proceedings. 

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1.6 

If information is requested from the Court of Audit pursuant to the Public Information Access Act8, 

the  Court  of  Audit  may  only  disclose  such  information  under  the  conditions  governing  the 

disclosure of information applicable to Banka Slovenije. 

1.7  The draft law also introduces a new provision that was not present in its original versions, on which 
the ECB was consulted in 20169, which establishes that an audit may include any actions of Banka 

Slovenije  in  the  ten-year  period  prior  to  the  entry  into  force  of  the  draft  law.  The  explanatory 

memorandum accompanying the draft law states that this provision will enable the Court of Audit to 

audit previous decisions of Banka Slovenije, including decisions taken in 2013 and 2014 regarding 
the recovery of banks10.  

2. 

Observations 

2.1  The  ECB  notes  that  it  has  been  consulted  by  the  Slovenian  authorities  and  issued  opinions  on 

previous  versions  of  the  draft  law  on  two  occasions.  The  ECB  reiterates  the  views  expressed  in 

Opinions  CON/2016/24  and  CON/2016/59  and  has  the  following  additional  comments  to  make  in 

relation to the draft law.  

2.2  The second indent of the proposed new paragraph 2 of Article 52.a of the Law on Banka Slovenije 

includes  Banka  Slovenije’s  tasks  within  the  SSM  within  the  scope  of  the  audit  carried  out  by  the 

Court of Audit, extending to any supervisory decisions of Banka Slovenije that have led to the use 

of public funds and to actions that have taken place during the last ten years. In this respect, the 

draft law is not in line with the independence requirement laid down in Article 19 of Regulation (EU) 

1024/2013, which states that when acting within the SSM the national competent authorities must 

act  independently  and  that  the  governments  of  the  Member  States  and  any  other  bodies  must 

respect that independence. In line with this independence requirement, audits of Banka Slovenije’s 

supervisory activities should (a) not extend to the application and interpretation of supervisory law 

and  practices  in  the  context  of  the  SSM,  and  (b)  not  interfere  with  and  not  include  the  tasks 
conferred on the ECB by Regulation (EU) No 1024/201311.   

2.3 

In addition, pursuant to Article 2 of the Law on Banka Slovenije, Banka Slovenije’s independence 

should  be  respected  not  only  when  it  performs  ESCB-related  tasks,  but  also  when  it  performs 

national tasks. 

2.4  The draft law establishes a legal basis for auditing Banka Slovenije’s actions that have taken place 

during the last ten years, and as such may be seen as potentially having a retroactive character. As 

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Public Information Access Act (Ur. l. RS No 51/06 – official consolidated text, 117/06 – ZDavP-2, 23/14, 50/14, 19/15 
– CC dec. and 102/15). 
See  Opinions  CON/2016/24  and  CON/2016/59.  All  ECB  opinions  are  published  on  the  ECB’s  website  at 
www.ecb.europa.eu .  

See the Government's proposal for an Act amending the Bank of Slovenia Act from 20 April 2017 (EVA 2016-1611-
0054).  
See paragraphs 2.4 and 2.5 of Opinion CON/2016/59. 

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previously  noted  by  the  ECB12,  introducing  measures  with  retroactive  effect  could  in  principle 

undermine legal certainty and might not be in line with the principle of legitimate expectations. The 

prohibition against the retroactive effect of legal acts derived from the principle of legal certainty is 

also  protected  by  EU  legal  principles.  The  principle  of  legal  certainty  is  not  absolute  and  would 

allow for limited and well defined exemptions where the purpose to be achieved so demands and 

the  legitimate  expectations  of  those  concerned  are  duly  respected.  In  this  respect,  the  ECB 

questions whether a provision allowing for auditing Banka Slovenije’s actions that have taken place 

during the last ten years is compatible with the principle of legal certainty. 

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

Done at Frankfurt am Main, 12 June 2017 

[signed] 

The President of the ECB 

Mario DRAGHI 

12 

See  paragraph  3.2.2  of  Opinion  CON/2015/32,  paragraph  3.1.2  of  Opinion  CON/2016/39  and  paragraph  3.2  of 
Opinion CON/2016/50. 

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