Opinion of the European Central Bank of 29 June 2022 on the screening of foreign investments (CON/2022/22)
Date: 2022-06-29
Institutions: European Central Bank
Subjects: banking supervision

EN 

ECB-PUBLIC 

OPINION OF THE EUROPEAN CENTRAL BANK 

of 29 June 2022  

on the screening of foreign investments  

(CON/2022/22) 

Introduction and legal basis 

On 16 May 2022 the European Central Bank (ECB) received a request from the Minister for Economy of 

the  Slovak  Republic  for  an  opinion  on  a  draft  law  on  the  screening  of  foreign  investments  and  on 

amendments to certain acts (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 Národná banka Slovenska (NBS) and the ECB’s tasks concerning the prudential 

supervision  of  credit  institutions  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 draft law aims to further implement Regulation (EU) 2019/452 of the European Parliament and 

of  the  Council2.  The  draft  law  covers  (a)  the  screening  of  foreign  investments  on  grounds  of  the 

protection of security and public order in the Slovak Republic and security and public order in the 

Union; (b) certain  aspects of cooperation between the Slovak Republic and other Member States 

and the European Commission under Regulation (EU) 2019/452; (c) the competences of the Ministry 

of Economy of the Slovak Republic (hereinafter the ‘Ministry’) and selected government authorities 

as regards the screening of foreign investments; (d) the rights and obligations of a foreign investor 

and the target entity in connection with the screening of foreign investments; and (e) procedural rules 

applicable in the context requests for cooperation. 

1.2  The Ministry, when performing its tasks under the draft law and Regulation (EU) 2019/452, will be 

authorised to request the cooperation of government authorities, local government authorities and 

public institutions 3. These authorities are required to cooperate with the Ministry at its request, unless 

there  are  any  specific  national  legislative  provisions  preventing  them  from  providing  requested 

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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). 
Regulation (EU) 2019/452 of the European Parliament and of the Council of 19 March 2019 establishing a framework 
for the screening of foreign direct investments into the Union (OJ L 79I, 21.3.2019, p. 1). 

See Article 46 of the draft law. 

 
 
 
 
 
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information 4.  The  draft  law  does  not  exhaustively  list  institutions  that  are  exempted  from  the 

obligation to cooperate with the Ministry at its request. Furthermore, the obligation to cooperate will 

not apply in cases where the provision of information could jeopardise the purpose or objective of an 

investigation,  administrative  proceedings  or  judicial  proceedings,  or  result  in  a  breach  of  the 

confidentiality obligation as set out in separate legislative acts5.  

1.3  When cooperation is requested, the concerned authorities must supply, within the time limit set by 

the Ministry, the information identified by the Ministry in the request for cooperation, as well as other 

information that may help to evaluate the risk of a negative impact of foreign investments, a qualified 

submission, a comment by an Union Member State or opinion by the European Commission, or the 

impact of a foreign investment on security and public order in the Slovak Republic 6.  

1.4  The Ministry, when performing its tasks under the draft law and Regulation (EU) 2019/452, will also 

be authorised to access, without charge, the information systems of public administration as defined 

by  Article  2(4)  of  Law  No.  95/2019  Coll.  on  information  technology  in  public  administration7.  The 

government authorities are required to accommodate the request for access to public administration 

information  systems  unless  specific  laws  prevent  them  from  doing  so.  Based  on  the  combined 

reading of Articles 2(4), 2(5) and 5(2) of Law No. 95/2019 Coll., the ECB understands that information 

systems of NBS and the ECB do not fall within the scope of the draft law. 

2. 

Specific observations   

2.1  The  ECB  understands  that  NBS  will  be  included  among  the  government  authorities  and  public 

institutions whose cooperation the Ministry may request when performing its tasks under the draft 

law and Regulation (EU) 2019/4528. The ECB also understands that target entities as defined in the 

draft  law  include  credit  and  financial  institutions 9,  and  that  a  request  for  NBS’  cooperation  may 

therefore include such entities. Furthermore, the ECB understands that ‘foreign investor’ refers to a 

natural person or a third-country undertaking.10 

2.2  Council Regulation (EU) No 1024/201311 confers on the ECB specific tasks concerning the prudential 

supervision of credit institutions pursuant to Article 127(6) of the Treaty. The ECB carries out these 

tasks  within  a  single  supervisory  mechanism  composed  of  the  ECB  and  national  competent 

authorities. Accordingly, NBS is also responsible for the prudential supervision of credit institutions 12, 

within the framework of Article 6 of Council Regulation (EU) No 1024/2013. Both the ECB and NBS, 

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See  Article  46(2)  of  the  draft  law.  Footnote  16  refers  to  Law  No.  215/2004  Coll.  on  the  protection  of  classified 
information and on amendments to certain acts, as amended. 

See Article 46(3) of the draft law. 
See Article 46(4) of the draft law. 

See Article 47 of the draft law.  
Nevertheless, it is worth noting that NBS, as a sui generis institution, might not fall within any of the authorities listed. 

Article  5  of  the  draft  law  states  that  the  ‘target  entity  is  an  existing  or  newly-established  enterprise  or  other  entity 
established in the Slovak Republic, regardless of its legal form, legal personality, the means of funding and scope of 
business activities, including activity aimed at profit making’. 
See Article 4 of the draft law.  

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). 
Article  2(3)  and  Article  36  of  Law  No.  566/1992  Coll.  on  the  National  Bank  of  Slovakia  and  Article  6(1)  of  Law 
No. 483/2001 Coll. on Banks and on amendments and supplements to certain laws. 

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when performing prudential supervision, must apply the relevant provisions of Union law relating to 

prudential supervision, including as contained in Directive 2013/36/EU of the European Parliament 

and of the Council13, as transposed in national law.  

2.3  Pursuant to Article 53 of Directive 2013/36/EU14 the competent authorities for prudential supervision 

are bound by professional secrecy. Persons having access to confidential information are subject to 

professional secrecy requirements at least equivalent to those referred to in Article 53(1) of Directive 

2013/36/EU15. As noted in previous ECB opinions 16, national legislation should be compatible with 

the obligation under Union law to maintain professional secrecy in respect of confidential supervisory 

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

in Article 53 to 62 of Directive 2013/36/EU.    

2.4  According to the provisions of Articles 56 to 59 of Directive 2013/36/EU, as transposed into national 

law, information relating to prudential supervision may be transmitted to specific entities, including 

other departments of central government administrations responsible for law on the supervision of 

institutions, financial institutions and insurance undertakings and to inspectors acting on behalf of 

those departments 17. However, such disclosures may be made only where necessary for reasons of 

prudential supervision, and prevention and resolution of failing institutions 18. The ECB understands 

that the Ministry has no competence in these fields, under Union or national law19. Therefore, even 

if  the  Ministry  requested  cooperation,  NBS,  in  its  capacity  as  a  prudential  supervisor  bound  by 

Directive  2013/36/EU  and  national  provisions  transposing  it,  would  not  be  allowed  to  share 

confidential information obtained in the course of the prudential supervision of credit institutions when 

fulfilling such request.  

2.5  Furthermore,  for  prudential  supervisory  purposes,  the  ECB  is  competent  to  act  in  questions  of 

qualifying  holdings  in  credit  institutions  established  in  SSM  participating  Member  States 20.  The 

procedure  for  the  screening  of  foreign  investments  laid  down  in  Regulation  (EU)  2019/452  is 

recognised to be different from the prudential assessment of acquisitions of qualifying holdings in the 

financial sector, which is a distinct procedure with a specific objective21. If the Ministry approached 

NBS with a request for cooperation concerning a credit institution in a qualifying holding procedure, 

NBS would have to consult the ECB, which would be bound by the relevant provisions of Union law, 

including the provisions of Article 53 et seq. of Directive 2013/36/EU.  

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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,  amending  Directive  2002/87/EC  and  repealing 
Directives 2006/48/EC and 2006/49/EC (OJ L 176, 27.6.2013, p. 338). 
See Section II, Chapter I of Title VII of Directive 2013/36/EU. 

See Article 59(1), second subparagraph of Directive 2013/36/EU.  
See paragraphs 2.1 and 2.3 of Opinion CON/2021/13 and paragraph 2.3 of Opinion CON/2019/20. All ECB opinions 
are available on EUR-Lex. 
See Article 59(1) Directive 2013/36/EU. 

See Article 59(1), second subparagraph Directive 2013/36/EU. 
See  also  Article  3(3)  of  Law  no  747/2004  Coll.  on  Supervision  of  the  financial  market  and  on  amendments  and 
supplements to certain laws.  
Article 4(1)(c) and Article 15 of Council Regulation (EU) No 1024/2013.  
See recital 37 of Regulation (EU) 2019/452: ‘This Regulation does not affect Union rules for the prudential assessment 
of acquisitions of qualifying holdings in the financial sector, which is a distinct procedure with a specific objective …’. 

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This opinion will be published on EUR-Lex.  

Done at Frankfurt am Main, 29 June 2022. 

[signed] 

The President of the ECB 

Christine LAGARDE 

ECB-PUBLIC 

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