Opinion of the European Central Bank of 14 February 2018 on the return of monetary funds to the Republic of Slovenia from designated tax havens (CON/2018/8)
Date: 2018-02-14
Institutions: European Central Bank
Subjects: Slovenia, fiscal policy, national law, outflow of capital, tax avoidance, tax evasion

EN 

ECB-PUBLIC 

OPINION OF THE EUROPEAN CENTRAL BANK 

of 14 February 2018 

on the return of monetary funds to the Republic of Slovenia from designated tax havens 

(CON/2018/8) 

Introduction and legal basis 

On 11 December 2017 the European Central Bank (ECB) received a request from the National Assembly 

of  the  Republic  of  Slovenia  (the  “National  Assembly”)  for  an  opinion  on  a  draft  law  on  the  return  of 

monetary funds to the Republic of Slovenia from designated tax havens (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  (hereinafter  ‘TFEU’)  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 

1.1  The main objective of the draft law, which was prepared by the National Council of the Republic of 

Slovenia  (Državni  svet),  is  to  introduce  a  regime  resembling  a  penalty  tax  regime  in  order  to 

combat  the  leaking  of  monetary  funds  into  designated  low  or  no-tax  countries  (so-called  ‘tax 

havens’)  which,  according  to  the  draft  law’s  explanatory  memorandum,  are  causing  harmful  tax 

competition  to  traditional  tax  countries  such  as  Slovenia.  The  draft  law  stipulates  the  conditions, 

procedure and relevant authorities for enabling the return of funds from the designated tax havens 

into the national budget. The list of countries considered as tax havens under the draft law includes 

inter alia several EU Member States.  

1.2  The draft law provides that funds which have been directly or indirectly transferred from Slovenian 

bank accounts into accounts in the designated tax havens will be subject to a penalty tax rate. For 

transfers made from 25 June 1991 until the entry into force of the draft law, a rate of 20 per cent 

will apply and the liable persons will have to make payments within a six-month period following the 

entry  into force of the draft law. For transfers of funds made after the entry  into force of the draft 

law,  a rate  of 22 per cent  will apply and  payments  will be due  within three months of making the 

relevant  transfer.  In  case  of  breach  of  the  obligation  of  payment  of  the  relevant  sum,  the  liable 

person will be charged by the tax authority at a rate of 80 per cent of the transferred funds.  

1.3 

Liable persons include natural persons with Slovenian citizenship; foreign natural persons holding 

accounts in banks and other payment institutions in Slovenia; legal entities registered in Slovenia 

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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). 

 
 
 
 
                                                 
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operating in the relevant period covered by the draft law; and foreign legal entities holding accounts 

in  banks  and  other  payment  institutions  in  Slovenia  during  the  relevant  period.  The  draft  law 

excludes  from  its  scope  certain  entities,  including  State  authorities,  international  organisations, 

religious organisations, as well as remittances made by banks on their own behalf and  payments 

made by Banka Slovenije. 

1.4  Public  authorities  and  financial  institutions,  including  banks  and  Banka  Slovenije,  are  obliged  to 

provide  information  to  the  authorities  responsible  for  the  implementation  of  the  draft  law  on  any 

payments  made  by  liable  persons  to  the  designated  tax  havens  and  to  provide  any  other 

assistance, free of charge. The draft law indicates that all data related to liable persons under the 

draft  law  and  all  data  related  to  the  payments  made  to  the  designated  tax  havens  is  public 

information that can be acquired and published by anyone.  

2. 

Observations 

2.1  The ECB notes that on 5 December 2017 the Council adopted the Council conclusions on the EU 
list  of  non-cooperative  jurisdictions  for  tax  purposes2.  According  to  the  Commission,  when 
assessed against the EU list criteria, all Member States are fully compliant.3 Since the taxation of 

funds transferred to Member States designated as tax havens as foreseen by the draft law would 

also  appear  to  affect  the  free  movement  of  capital,  the  National  Assembly  should  consult  the 
Commission, as the guardian of the Treaties, on the draft law, if it has not already done so4. 

2.2  The  ECB  understands  that  the  data  to  be  provided  to  the  relevant  authorities  responsible  for  the 

implementation of the draft law is limited to information on remittances of monetary funds of liable 

persons,  as  stipulated  in  article  9(1)  of  the  draft  law.  However,  where  Banka  Slovenije,  which  is 

also  the  national  competent  authority  empowered  by  national  law  to  supervise  credit  institutions, 

shares  such  information  with,  or  provides  assistance  to,  the  relevant  authorities,  it  must  comply 
with the confidentiality regime set out in Directive 2013/36/EU5 of the European Parliament and of 

the Council. 

2.3  While it appears that the data requests to Banka Slovenije would, primarily, not concern statistical 

information,  in  view  of  the  broad  scope  of  the  potential  assistance  to  be  provided  by  Banka 

Slovenije to the relevant authorities, the framework applicable to confidential statistical data should 
be  considered.  Article  8(3)  of  Council  Regulation  (EC)  No  2533/986  provides  that  the  European 

System  of  Central  Bank  (ESCB)  members  shall  take  all  the  necessary  regulatory,  administrative, 

technical and organisational measures to ensure the physical and logical protection of confidential 

2  

3  

4  

5  

6  

the  Questions  and  Answers  on 

See  Council  conclusions  adopted  in  Brussels  on  5  December  2017,  document  number  15429/17,  FISC  345, 
ECOFIN  1088,  and  the  Commission’s  accompanying  press  release,  available  at:  http://europa.eu/rapid/press-
release_IP-17-5121_en.htm. 
See 
http://europa.eu/rapid/press-release_MEMO-17-5122_en.htm. 
See  for  example  ECB  Opinion  CON/2006/6.  All  ECB  opinions  are  published  on  the  ECB's  website  at 
www.ecb.europa.eu.  
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).  
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). 

jurisdictions,  available  at: 

list  of  non-cooperative 

the  EU 

tax 

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statistical  information.  Confidential  statistical  information  collected  pursuant  to  Council  Regulation 

(EC) No 2533/98 may be used exclusively for the exercise of the tasks of the ESCB as well as in 
the field of prudential supervision with regard to NCBs or for other statutory NCB tasks.7 

2.4  NCB staff members are also subject to the obligation of professional secrecy under Article 37 of the 

Statute of the European System of Central Banks and of the European Central Bank. The primacy 

of  Union  law  means  that  national  laws  on  third  party  access  to  documents  may  not  result  in 

infringements  of  the  ESCB’s  confidentiality  regime.  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.  Any  provision  of  information  under  the  draft  law  by  Banka  Slovenije 

should comply with applicable Union laws, including those governing the exchange of supervisory 
and statistical information, as well as the obligation of professional secrecy.8 

2.5  The ECB understands Article 9 of the draft law to constitute a cooperation arrangement between, 

inter  alia,  Banka  Slovenije  and  the  relevant  authorities  responsible  for  the  implementation  of  the 

draft law. Banka Slovenije is to provide to the authorities, free of charge, data relating to transfers 

of funds of liable persons and assistance as necessary. In this respect the ECB notes the principle 

of financial  independence  of  NCBs  which  requires  that  Member  States  do  not  put  their  NCB  in  a 

position  where  they  have  insufficient  financial  resources  to  carry  out  their  Eurosystem-related 
tasks,  both  from  an  operational  and  a  financial  perspective9.  Therefore,  the  cooperation 

arrangement  should  not  create  any  financial  risks  for  Banka  Slovenije.  Should  the  scope  of  the 

draft  law  in  respect  of  any  assistance  provided  by  Banka  Slovenije  prove  in  practice  to  require  a 

regular, lasting and substantial engagement of Banka Slovenije’s resources with the result that its 

assistance qualifies as a new task for Banka Slovenije, then the ECB would need to be informed 

accordingly in order to reassess the draft law and the related tasks of Banka Slovenije against the 
prohibition on monetary financing under Article 123 of the Treaty. 10 

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

Done at Frankfurt am Main, 14 February 2018.  

[signed] 

The President of the ECB 

Mario DRAGHI 

7  
8  
9  

10  

See paragraph 6.4 of ECB opinion CON/2015/57. 
See paragraph 6.3 of ECB opinion CON/2015/57. 
See ECB Convergence Report 2016, p.25.  
See for example ECB opinions CON/2017/32, CON/2016/35, CON/2017/3, CON/2015/22, CON/2016/34.  

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