Opinion of the European Central Bank of 28 May 2019 on judicial relief granted to former holders of qualified bank credit (CON/2019/20)
Date: 2019-05-28
Institutions: European Central Bank
Subjects: Slovenia, bank, central bank, credit, financial stability, indemnification, judicial proceedings, national law

EN 

ECB-PUBLIC 

OPINION OF THE EUROPEAN CENTRAL BANK 

of 28 May 2019 

on judicial relief granted to former holders of qualified bank credit 

(CON/2019/20) 

Introduction and legal basis 

On  12  April  2019  the  European  Central  Bank  (ECB)  received  a  request  from  the  Vice-President  of  the 

Slovenian National Assembly for an opinion on a draft law on judicial relief granted to former holders of 

qualified  bank  credit  (hereinafter  the  ‘draft  law’)  prepared  by  the  National  Council  of  the  Republic  of 

Slovenia. 

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  and  sixth  indents  of  Article  2(1)  of  Council  Decision 
98/415/EC1 as the draft law relates to Banka Slovenije, rules applicable to financial institutions insofar as 

they materially influence the stability of financial institutions and markets and the tasks conferred upon the 

ECB pursuant to Article 127(6) of the Treaty. 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  is  to  remedy  the  unconstitutionality,  as  declared  by  the 

Constitutional Court of the Republic of Slovenia (hereinafter the ‘Constitutional Court’) in Decision 
No  U-I-295/13-260  of  19  October  2016  (hereinafter  the  ‘Constitutional  Court’s  Decision’) 2,  of 
certain  provisions  of  the  Law  on  banking  (hereinafter  the  ‘ZBan-1’)3  governing  Banka  Slovenije’s 

liability  for  damages  with  respect  to  extraordinary  measures  imposed  by  Banka  Slovenije.  The 
provisions assessed by the Constitutional Court4 authorised Banka Slovenije to adopt extraordinary 

measures to write-down or convert qualified liabilities during the reorganisation of a bank that failed 

or was likely to fail, to meet minimum requirements for capital and liquidity, to an extent that could 

result in the withdrawal of their banking authorisation.  

1  

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). 

2         Odločba o ugotovitvi, da je bil 350.a člen Zakona o bančništvu v neskladju z Ustavo, Odločba o ugotovitvi, da je bil  
265. člen Zakona o reševanju in prisilnem prenehanju bank v neskladju z Ustavo, Odločba o ugotovitvi, da členi 253, 
253a,  253b,  261a,  261b,  261c,  261d,  261e,  drugi  odstavek  262.b  člena,  ter  členi  346,  347  in  350  Zakona  o 
bančništvu  nisi  bili  v  neskladju  z  Ustavo,  Odločba  o  ugotovitvi,  da  41.  člen  Zakona  o  spremembah  in  dopolnitvah 
Zakona o bančništvu ni bil v neskladju z Ustavo, Uradni list Republike Slovenije št.71/16. 
Zakon o bančništvu, Uradni list Republike Slovenije št. 131/06. 
Articles  253,  253.a,  253.b,260.a,  260.b,  261.b,  261.c,  261.d,  261.e,  262.a,  262.b(2),  346,  347,  350  and  350.a  of 
ZBan-1.  

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1.2  While  the  Constitutional  Court  confirmed  that  the  legal  basis  for  the  extraordinary  measures 

imposed  in  2013  and  2014  by  Banka  Slovenije  in  respect  of  the  write-down  of  subordinated 
instruments was in line with the Constitution of the Republic of Slovenia 5, it held that the provisions 

of Article 350.a of the ZBan-1 providing for judicial relief to be unconstitutional. This conclusion was 

based on the Constitutional Court’s finding that exercising judicial relief under Article 350.a of the 

ZBan-1 did not afford effective judicial protection to former holders of qualified bank credit affected 

by Banka Slovenije’s extraordinary measures. The Constitutional Court decided that the legislator 

must  remedy  the  unconstitutionality  within  six  months  of  the  publication  of  the  Constitutional 

Court’s  decision  and  provided  the  legislator  with  further  guidance  on  how  best  to  ensure  more 

effective judicial protection.  

1.3  The main purpose of the draft law is to remedy the unconstitutionality of the judicial relief afforded 

to former holders of qualified bank credit affected by Banka Slovenije’s extraordinary measures, as 

declared by the Constitutional Court.  

1.4  The draft law codifies special procedural rules of judicial redress for the former holders of qualified 

bank credit, which deviate from the general rules and, inter alia, enable legal proceedings against a 

particular  decision  on  extraordinary  measures  to  be  reviewed  in  a  “sample  procedure”,  meaning 

that  the  court  reviews  one  claim,  while  other  procedures  are  put  on  hold  and  a  decision  is  then 

applied to other claims. Any action for compensation may be filed at the latest within twelve months 

from the entry into force of the draft law.  

1.5  The draft law regulates those proceedings in which the former holders of qualified bank credit are 

seeking judicial protection under civil law on the basis of Article 350.a of the ZBan-1.  

1.6  Article 350.a of the ZBan-1 stipulates that shareholders, creditors, and other persons whose rights 

are affected due to the  effects of an  order by  Banka Slovenije on an extraordinary measure may 

claim damages from Banka Slovenije in accordance with Article 223.a of the ZBan-1, if they prove 

that the loss that has arisen due to the effects of the extraordinary measure is higher than it would 

have  been  had  the  extraordinary  measure  not  been  adopted.  Article  223.a  of  the  ZBan-1  stated 

that Banka Slovenije and all of the persons acting on its behalf should be acting with the diligence 

of  a  good  expert  when  exercising  their  supervisory  functions.  As  confirmed  by  the  Constitutional 

Court,  the  liability  of  Banka  Slovenije  under  Article  350.a  of  the  ZBan-1  is  a  sui  generis  liability 
(specially determined liability) 6.  

1.7  The draft law refers to the provisions of the ZBan-1 for the criteria by which the court establishes 

whether  a  claimant  has  a  right  to  compensation.  It  provides  guidelines  for  the  court  on  how  to 

establish  a  right  to  compensation.  When  determining  whether  a  claimant  has  a  right  to 

compensation,  the  court  should  primarily  establish  whether  extraordinary  measures  relating  to 

qualified  liabilities  were  adopted  by  the  Banka  Slovenije  in  accordance  with,  and  subject  to  the 
fulfillment  of,  the  conditions  laid  down  in  the  ZBan-17.  The  court  should,  verify  whether  (a)  the 

Ustava Republike Slovenije, Uradni list Republike Slovenije št. 33/91-I. 
See paragraph 120 of the Constitutional Court’s Decision. 

5  
6  
7         Article 253.a(1) and Articles 261.a to 261.d ZBan-1. 

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assessment  of  the  fulfillment  of  the  conditions  for  adoption  of  extraordinary  measures  was 

incorrect, (b) the obligations were not treated in line with the provisions of the ZBan-1, and (c) the 

assessment  was  not  in  line  with  the  International  Financial  Reporting  Standards  (hereinafter  the 
‘IFRS’)8 and the relevant legislation applicable at that time.  

1.8  To determine whether the conditions laid down in the ZBan-1 9 were accurately assessed , the main 

aspects  that  the  court  should  verify,  are  whether:  (a)  the  method  and  the  premise  underlying  the 

method used in the assessment were in breach of the relevant provisions of the ZBan-1 applicable 
at that time, Law on companies 10 or Law on measures to strengthen the stability of banks11; (b) the 

methods and premise underlying the methods used in the assessment were in breach of the IFRS 

or  other  legislation  applicable  at  that  time;  (c)  the  method  of  obtaining  the  data  used  in  the 

preparation of the assessment gives rise to a reasonable doubt as to whether correct source data 

were  used  and  whether  this  affected  the  assessment;  (d)  the  data  used  in  the  assessment  was 

used  incorrectly  and  whether  this  affected  the  assessment,  and  (e)  there  is  reasonable  doubt 

concerning  the  professionalism  of  the  person  who  performed  the  valuation  of  the  assets  of  the 

bank that was used for the assessment to such an extent that it would be an unsuitable basis for a 
decision12.  

1.9  To  determine  whether  the  valuation  of  liabilities  was  performed  in  line  with  the  provisions  of  the 
ZBan-1 applicable at that time13, the main aspects that the court should verify are whether: (a) the 

method  and  the  premise  underlying  the  method  used  in  the  assessment  ,  to  an  extent  that 

impacted the assessment, were in breach of the provisions of the ZBan-1 applicable at that time, 

Law  on  Companies,  Law  on  measures  to  strengthen  the  stability  of  banks,  the  IFRS  and  other 

relevant  legislation  applicable  at  that  time;  (b)  the  methods  and  premise  underlying  the  methods 

used in the assessment were used wrongly or in breach of the relevant legislation applicable at that 

time; (c) the method of obtaining the data used in the preparation of the assessment gives rise to a 

reasonable  doubt  as  to  whether  original  source  data  were  used  and  whether  this  affected  the 

assessment; (d) the  data used in the assessment was used incorrectly and  whether this affected 

the assessment, and (e) the assessment of the premise and capital requirements, which were the 

basis for the preparation of the assessment, were in breach of the IFRS or the relevant legislation, 
as applicable at that time14.  

Available on the IFRS Foundation’s website at www.ifrs.org. 

8    
9         The conditions laid down in Article 253.a of ZBan-1 are as follows: (a) an increase in risk is prevailing in relation to 
the bank; (b) there are no circumstances indicated showing that the reasons for this increased risk are likely to be 
eliminated within an appropriate time, (c) it is not likely that Banka Slovenije could take other measures on the basis 
of this act for the bank to achieve short-term and long-term capital adequacy  or to achieve  an appropriate liquidity 
position within an appropriate time; and (d) extraordinary measures are in the public interest to prevent a threat to 
the stability of the financial system. 

See Article 9(2) of the draft law. 

Zakon o ukrepih Republike Slovenije za krepitev stabilnosti bank, Uradni list Republike Slovenije št. 105/12. 

10        Zakon o gospodarskih družbah, Uradni list Republike Slovenije št. 65/09. 
11  
12   
13      Pursuant to Article 261.b of ZBan-1 the assessment of a bank’s assets is based on the following: i) the amount of the 
repayment of qualified liabilities from the bank’s assets is based on the presumption of a non-going concern bank ii) 
the  issue  value  of  shares  to  be  issued  for  the  increase  of  the  bank’s  initial  capital  through  the  conversion  of  the 
qualified liabilities is based on the presumption of a going concern bank.  

14   

See Article 9(3) of the draft law. 

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1.10 

If  the  court  establishes  that  the  conditions  for  the  imposition  of  extraordinary  measures  were  not 

fulfilled or that qualified liabilities were not treated correctly, the court would have to establish what 

would have been the most likely treatment of qualified liabilities had they been treated correctly or 

had no extraordinary measures been imposed, and the difference in value of qualified liabilities in 

such a case in comparison with their actual treatment. 

1.11  Thereby, the damages are set as the difference between the actual and most likely treatment of the 
qualified liabilities 15. The basis for damages to be calculated by the court will include the amount of 

unpaid  principal in qualified liabilities that had a due  date,  or the  book value of qualified liabilities 
without a due date, and the prescribed interest rate 16.  

1.12  The draft law regulates claims for damages filed against Banka Slovenije pursuant to the relevant 

provisions of the ZBan-1 by the former holders of qualified liabilities, who were worse off due to the 
adoption  of  the  extraordinary  measures.  According  to  the  explanatory  memorandum 17,  any 

compensation will be paid solely by Banka Slovenije. The draft law also provides for the Republic 

of  Slovenia,  in  its  role  as  a  former  holder  of  qualified  liabilities,  to  make  a  claim  against  Banka 

Slovenije through the State Attorney’s office. 

1.13  The  draft  law  also  lays  down  rules  for  the  disclosure  of  documents  and  information  in  relation  to 

any  decision  on  extraordinary  measures  adopted  by  Banka  Slovenije.  Banka  Slovenije  must 

establish  a  virtual  data  room  for  each  bank  in  respect  of  which  an  extraordinary  measure  was 

adopted  and  disclose  to  the  former  holders  of  qualified  liabilities  and  their  advisers  in  full,  in  the 

original language as well as in Slovene, documents which were considered by Banka Slovenije in 

the  adoption  of  the  extraordinary  measures.  In  particular,  the  following  documentation  must  be 

disclosed:  (a)  the  decision  on  extraordinary  measures  with  all  appendices  and  documents 

referenced  in  the  decision,  (b)  the  assessment  of  the  relevant  bank’s  assets,  (c)  all  asset  quality 

review (AQR) and stress tests, (d) the contract between the evaluator and Banka Slovenije and/or 

the  relevant  bank,  (e)  all  documentation  dealing  with  the  Slovene  economy  prepared  by  Roland 

Berger and Oliver Wyman for the period between September 2013 and June 2014 which are in the 

possession of Banka Slovenije, (f) all minutes of the steering committee and operating committee, 

(g) loan files  with  an  explanation  how they  were used in the  valuation,  (h) samples of real estate 
valuations  and  (i)  other  documents  used  in  the  assessment18.  Access  to  such  documents  will  be 

subject to confidentiality requirements. 

1.14  The draft law provides that the costs of legal proceedings will be paid by the State. 

2. 

Observations  

2.1  Prohibition of monetary financing 

2.1.1  The ECB has already delivered opinions on three earlier versions of the draft law prepared by the 

15        See Article 10 of the draft law. 
16        See Article 11 of the draft law. 
17        See point 3 of the introductory part of the explanatory memorandum.  
18        See Article 4 of the draft law. 

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Government of the Republic of Slovenia19. Under the first version of the draft law, compensation for 

damages  incurred  as  a  result  of  the  extraordinary  measures  was  required  to  be  paid  either  by 

Banka  Slovenije  or  the  State,  and  if  no  liability  could  be  attributed  to  Banka  Slovenije, 
compensation  was required to be paid by the  State20.  Under  the second version  of the draft law, 

even  though  Banka  Slovenije  would  be  liable  for  damages,  provision  was  also  made  for  Banka 

Slovenije  to  file  an  action  against  the  State  in  order  to  prove  in  a  separate  court  procedure  that 

Banka Slovenije  was not liable for the damages resulting from the imposition of the extraordinary 
measures21.  The  third  version  of  the  draft  law  did  not  make  any  reference  to  the  liability  of  the 
State22. Similarly to the latter, the current version of the draft law does not make any reference to 

the liability of the State. It however stipulates that the costs of legal proceedings will be paid by the 

State. 

2.1.2  Against this background, the ECB reiterates the observations made in its previous opinion on this 
matter23.  As  noted  therein24,  a  requirement  that  Banka  Slovenije  must  pay  compensation  for 

damages,  to  the  extent  that  it  results  in  Banka  Slovenije  assuming  the  liability  of  the  Republic  of 

Slovenia, would not be in line with the monetary financing prohibition laid down in Article 123 of the 
Treaty25.  As repeatedly noted by the ECB, while resolution tasks may be considered to be central 

banking  tasks,  provided  that  they  do  not  undermine  the  independence  of  a  national  central  bank 

(NCB) in accordance with Article 130 of the Treaty, the discharge of these tasks by NCBs may not 

extend  to  the  financing  of  resolution  funds  or  other  financial  arrangements  related  to  resolution 
proceedings  as  these  are  governmental  tasks26.  In  this  respect,  it  is  noted  that  Directive 
2014/59/EU of the European Parliament and of the Council 27 provides that the resolution financing 

arrangements  may  be  used  to  pay  compensation  to  shareholders  and  creditors  if  the  valuation 

carried out for the purposes of assessing whether shareholders and creditors would have received 

better treatment if the institution under resolution had entered into normal insolvency proceedings 

determines  that  any  shareholder  or  creditor  has  incurred  greater  losses  than  they  would  have 
incurred under normal insolvency proceedings28. It is also noted that Regulation (EU) No 806/2014 
of  the  European  Parliament  and  of  the  Council29  envisages  that,  on  the  one  hand,  the  resolution 

See Opinion CON/2017/16, Opinion CON/2017/41 and Opinion CON/2019/13.  

19  
20       See paragraph 1.4 of Opinion CON/2017/16.  
21       See paragraph 1.4 of Opinion CON/2017/41.  
22       See paragraphs 1.6 and 2.1.1 of Opinion CON/2019/13. 
23       See paragraph 2.1.2 of Opinion CON/2019/13.  
24       See also paragraph 2.1 of Opinion CON/2017/16 and paragraph 2.1 of Opinion CON/2017/41.  
25  

For the purposes of the monetary financing prohibition, Article 1(1)(b)(ii) of Council Regulation (EC) No 3603/93 of 
13 December 1993 specifying definitions for the application of the prohibitions referred to in Articles 104 and 104b(1) 
of  the  Treaty  (OJ  L  332,  31.12.1993,  p.  1)  defines  ‘other  type  of  credit  facility’,  inter  alia,  as  ‘any  financing  of  the 
public sector’s obligations vis-à-vis third parties’. 

26  
27  

See, e.g. paragraph 3.2.3 of Opinion CON/2016/28 and paragraph 2.1.2 of Opinion CON/2019/13.  
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).  
See Articles 75 and 101(1)(e) of Directive 2014/59/EU.  

28  
29    Regulation (EU) No  806/2014 of the European Parliament and  of the Council of 15 July  2014  establishing uniform 

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fund may be used to pay compensation to shareholders or creditors if, following a valuation, they 

have incurred greater losses than they would have incurred under normal insolvency proceedings 

while on the other hand, in the case of non-contractual liability, the Single Resolution Board would 
compensate  for  any  damage  caused  by  it  or  by  its  staff  in  the  performance  of  their  duties 30.  The 

draft  law  should  establish  liability  arrangements  which  clarify  that  Banka  Slovenije  is  not  liable  to 

pay compensation for damages in circumstances that mirror the compensation provided for under 

Directive  2014/59/EU  and  Regulation  (EU)  No  806/2014  to  be  paid  from  resolution  financing 

arrangements to shareholders or creditors when a second independent valuation (carried out after 

resolution  actions  have  been  effected)  determines  that  shareholders  or  creditors  have  incurred 

greater losses than they would have incurred under normal insolvency proceedings, as otherwise, 

Banka  Slovenije  would  de  facto  finance  extraordinary  measures  akin  to  resolution  proceedings. 

Banka Slovenije may not finance a government task. 

2.1.3  In addition, the  ECB notes that  Article 258 of the Treaty  empowers the  European Commission to 

bring a case before the Court of Justice of the European Union where a Member State has failed to 

fulfil an obligation under the Treaties, e.g. by way of enacting national legislation incompatible with 

the Treaties. Such action for infringement of Union law by a Member State covers also infringement 

proceedings in connection with the prohibition on monetary financing laid down in Article 123 of the 

Treaty.  In  addition,  under  Article  271(d)  of  the  Treaty  the  Governing  Council  of  the  ECB  has  in 

respect of NCBs the same powers as those conferred upon the Commission in respect of Member 

States by Article 258 of the Treaty. Consequently, if the ECB considers that an NCB has infringed 
an obligation under the Treaties, including where the monetary financing prohibition is concerned 31, 
the ECB may bring an action for failure to fulfil obligations against that NCB before the Court32.  

2.2  Financial independence of Banka Slovenije  

As the ECB has repeatedly stated 33, Member States may not put their central banks in a position 

where they have insufficient financial resources and inadequate net equity to carry out their ESCB 

or Eurosystem-related tasks, as well as their national tasks. Consequently, the impact of the draft 

law  on  the  financial  resources  of  Banka  Slovenije  and  its  financial  independence  should  be 

carefully  considered  should  there  be  a  possibility  that  Banka  Slovenije  could  lose  a  significant 

amount of its reserves due to compensation for damages to be paid under the draft law.  

2.3  Professional secrecy 

2.3.1  As noted by the ECB in its opinions on earlier versions of the draft law, national legislation should 

be compatible with obligations to maintain professional secrecy imposed by Union law, in particular 

rules and a uniform procedure for the resolution of credit institutions and certain investment firms in the framework of 
a Single Resolution Mechanism and a Single Resolution Fund and amending Regulation (EU) No 1093/2010 (OJ L 
225, 30.7.2014, p. 1). 

See Articles 76(1)(e) and 87(3) of Regulation (EU) No 806/2014.  

30  
31        See paragraph 2 of Opinion CON/2005/50 and paragraph 3.2.2 of Opinion CON/2010/30. 
32        Article  35.6  of  the  Statute  of  the  ESCB  and  of  the  ECB.  See  also  Recital  9  of  Council  Regulation  (EC)  3603/93 
according to which, notwithstanding the role assigned to the Commission pursuant to Article 258 of the Treaty, it is 
for the ECB, pursuant to Article 271(d) of the Treaty, to ensure that NCBs honour the obligations laid down by the 
Treaty. 
See  paragraph  3.3  of  Opinion  CON/2014/24,  paragraph  2.2  of  Opinion  CON/2014/27,  paragraph  3.1.1  of  Opinion 
CON/2014/56, paragraph 2.3 of Opinion CON/2017/17 and paragraph 2.2 of Opinion CON/2019/13. 

33  

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by  Article  53  of  Directive  2013/36/EU  of  the  European  Parliament  and  of  the  Council34.  In  this 

respect, the ECB considers that except for the outcome of stress tests, the publication of which is 

explicitly  permitted  under  Article  53(3)  of  Directive  2013/36/EU,  the  stress  test  reports,  AQR  and 

asset  valuations  relating  to  individual  supervised  banks  are  to  be  regarded  as  confidential 

information.  Disclosure  of  such  confidential  information  can  generally  only  be  permitted  in  cases 

specified  in  Article  53(1)  of  Directive  2013/36/EU,  which  does  not  include  disclosure  to  all  the 

claimants  envisaged  under  the  draft  law  as  disclosure  is  only  permitted  in  cases  of  civil 

proceedings  in  connection  with  cases  where  a  credit  institution  has  been  declared  bankrupt  or  is 
being compulsorily wound up35. 

2.3.2  In order to ensure the adequate protection of confidential supervisory information, the disclosure of 

stress  test  reports  and  minutes  of  the  steering  and  operating  committees  to  the  shareholders  or 

creditors who were directly affected by the extraordinary measures taken by Banka Slovenije and 
therefore have a  legitimate legal interest as defined  by  the  Constitutional  Court36 should be done 

without confidential information being disclosed. 

2.4  Miscellaneous 

2.4.1  Finally,  as  previously  noted  by  the  ECB37,  pursuant  to  Article  33  of  Council  Regulation  (EU)  No 
1024/201338, from 3 November 2013 onwards, in view of the imminent assumption of its prudential 

supervisory  tasks  under  Regulation  (EU)  No  1024/2013,  the  ECB  was  authorised  to  require  the 

national competent authorities, including Banka Slovenije, together with credit institutions, financial 

holding  companies,  mixed  financial  holding  companies  and  mixed-activity  holding  companies  of 

euro area Member States, as well as persons belonging to these entities and third parties to whom 

these entities had outsourced functions or activities, to provide all relevant information for the ECB 

to  carry  out  a  comprehensive  assessment,  including  a  balance-sheet  assessment,  of  credit 

institutions in euro area Member States. The comprehensive assessment conducted by the ECB in 

this context comprised two components, including an AQR, which was a point-in-time assessment 

of  the  accuracy  of  the  carrying  value  of  banks’  assets  as  on  31  December  2013.  The  AQR  was 

undertaken by the ECB and the national competent authorities, including Banka Slovenije, and was 

based on a uniform methodology and harmonised definitions. The comprehensive assessment was 
based  on  Regulation  (EU)  No  575/2013  of  the  European  Parliament  and  of  the  Council39  and 

34  

35  

36  
37  
38  

39  

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). 

See the judgement of the Court of Justice of 19 June 2018, Baumeister, C-15/16, ECLI:EU:C:2018:464; the 
judgement of the Court of Justice of 13 September 2018, UBS Europe and Others, C-358/16, ECLI:EU:C:2018:715; 
and the judgement of the Court of Justice of 13 September 2018, Buccioni, C-594/16, ECLI:EU:C:2018:717. 
See paragraph 123 of the Constitutional Court's Decision. 

See paragraph 2.9 of Opinion CON/2017/41 and paragraph of 2.4.2 of Opinion CON/2019/13. 
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. 63). 
Regulation  (EU)  No  575/2013  of  the  European  Parliament  and  of  the  Council  of  26  June  2013  on  prudential 
requirements  for  credit  institutions  and  investment  firms  and  amending  Regulation  (EU)  No  648/2012  (OJ  L  176, 
27.6.2013, p. 1). 

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ECB-PUBLIC 

Directive 2013/36/EU40. The ECB notes that the judicial review of the comprehensive assessment, 

including  the underlying uniform methodology, conducted  by  the  ECB  in  this respect falls outside 

the competence of the national courts, and falls exclusively within the competence of the Court of 

Justice  of  the  European  Union.  It  would  be  useful,  to  avoid  any  possible  doubt  on  this  issue,  to 

introduce  a  provision  into  the  draft  law  to  clarify  this  particular  point,  so  that  any  possible 

discrepancies between the draft law and Union law in this respect can be avoided. 

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

Done at Frankfurt am Main, 28 May 2019. 

 [signed] 

The President of the ECB 

Mario DRAGHI 

40  

See pages 2 to 4 of the European Central Bank, Aggregate Report on the Comprehensive Assessment: Summary 
(October 2014), available on the ECB’s website at www.ecb.europa.eu. 

8