Opinion of the European Central Bank of 15 December 2023 on judicial relief granted to former holders of qualified bank credit (CON/2023/44)
Date: 2023-12-15
Institutions: European Central Bank
Subjects: legal basis

EN 

ECB-RESTRICTED 

OPINION OF THE EUROPEAN CENTRAL BANK 

of 15 December 2023  

on judicial relief granted to former holders of qualified bank credit 

(CON/2023/44) 

Introduction and legal basis 

On 19 October 2023 the European Central Bank (ECB) received a request from the Slovenian Ministry of 

Finance for an opinion on a draft law on judicial relief granted to former holders of qualified bank credit 

(hereinafter  the  ‘draft  law’).  On  1  December  2023,  the  ECB  received  from  the  Ministry  of  Finance  an 

updated version of 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  The  main  objective  of  the  draft  law  is  to  remedy  the  unconstitutionality  of  certain  provisions  of 

Slovenian  law,  as  declared  by  the  Slovenian  Constitutional  Court  (hereinafter  the  ‘Constitutional 

Court’)  in  Decision  No  U-I-295/13-260  of  19  October  20162  (hereinafter  the  ‘2016  Decision’)  and 

Decision No U-I-420 of 13 February 2023 (hereinafter the ‘2023 Decision’)3.   

1.2 

In the 2016 Decision, the Constitutional Court held that certain provisions of the Law on banking4 

governing Banka Slovenije’s liability for damages with respect to extraordinary measures imposed 

by  Banka  Slovenije  were  unconstitutional.  The  provisions  assessed  by  the  Constitutional  Court5 

authorised  Banka  Slovenije  to  adopt  extraordinary  measures  to  write-down  or  convert  qualified 

liabilities during the reorganisation of a bank that had failed, or was likely to fail, to meet minimum 

1  

2 

3 

4 
5  

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). 
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. 
Odločba o razveljavitvi Zakona o postopku sodnega in izvensodnega varstva nekdanjih imetnikov kvalificiranih 
obveznosti bank (Uradni list RS, št. 29/23). 

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 the 
Law on banking.  

 
 
 
 
 
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requirements for capital and liquidity, to an extent that could result in the withdrawal of their banking 

authorisation6. 

1.3  With the aim of remedying the unconstitutionality declared in the 2016 Decision, the earlier versions 

of the draft law established specific procedural rules to enable former holders of cancelled financial 

instruments to seek judicial redress and access  documents  and information that  Banka Slovenije 

considered or should have considered when imposing an emergency measure. On 10 January 2020, 

Banka Slovenije submitted an application for review of the constitutionality of an earlier version of 

the  draft  law7  providing  judicial  relief  granted  to  former  holders  of  qualified  bank  credit.  The 

Constitutional Court decided to stay the ensuing proceedings and submit a request to the Court of 

Justice of the European Union for a preliminary ruling under Article 267 of the Treaty concerning the 

interpretation  of  several  provisions  of  Union  law.  On  13  September  2022,  the  Court  rendered  its 

judgment in Case C-45/218 (hereinafter the ‘judgment in Case C-45/21’). In the 2023 decision, the 

Constitutional  Court  focused  on  reviewing  certain  provisions  of  the  2019  version  of  the  draft  law, 

which governed the payment of flat-rate compensation and indemnities, and decided to annul the 

draft law in its entirety. 

1.4 

In  addition  to  taking  into  account  the  recent  decisions  of  the  Constitutional  Court,  as  well  as  the 

judgment  in  Case  C-45/21,  the  draft  law  is  based  on  the  following  principles:  (1)  the  principle  of 

access to all information needed to decide the case; (2) the principle of independent judicial review 

as regards the review of the correct treatment of eligible liabilities; (3) the principle of compliance 

with Union State aid rules and banking supervision standards as laid down by the ECB, the European 

Commission and the European Banking Authority; (4) the principle of taking into account the facts at 

the time when the Banka Slovenije decision was issued; and (5) the principle of an economically 

efficient use of court resources. 

1.5 

In pursuit of these principles, the draft law governs four key aspects of judicial relief granted under 

the  draft  law9.  First,  the  draft  law  provides  the  legal  basis  for  the  compensation  of  damages,  the 

jurisdiction of the courts and the specific rules of procedure to provide effective judicial protection to 

former shareholders or creditors of a bank whose rights have been affected by a decision of Banka 

Slovenije  to  impose  an  emergency  measure  for  the  termination  of  the  bank’s  eligible  liabilities10. 

Second,  the  draft  law  governs  access  to  documents  and  information  that  Banka  Slovenije  has 

considered or should have considered when imposing the emergency measure. Third, the draft law 

governs the publication of decisions of Banka Slovenije to impose an emergency measure and the 

manner in which documents and information relating to the emergency measure are to be provided. 

Fourth, the draft law governs the impact of the draft law on the relevant proceedings initiated prior to 

the entry into force of the draft law. 

1.6  The draft law lays down special procedural rules on judicial redress for the former holders of qualified 

bank  credit  that  deviate  from  the  general  rules  and,  inter  alia,  enable  legal  proceedings  affecting 

6   
7  

8   
9   
10  

See paragraph 1.1 of Opinion CON/2019/13. All ECB opinions are available on EUR-Lex. 
Zakon o postopku sodnega in izvensodnega varstva nekdanjih imetnikov kvalificiranih obveznosti bank (Uradni list RS, 
št. 72/19 in 29/23 – odl. US). 

Judgment of 13 September 2022, Banka Slovenije, C-45/21, EU:C:2022:670. 
See Article 1 of the draft law.  
See Article 261a of the Law on banking.  

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similarly placed litigants to be joined together to achieve a joint and uniform assessment of claims 

regarding  a  specific  bank  that  was  subject  to  Banka  Slovenije’s  extraordinary  measures.  This 

includes the possibility for former holders of qualified bank credit to seek damages under the draft 

law by virtue of a collective redress action under the provisions of the law on collective actions11, 

provided that the claims originate from the same Banka Slovenije decision. An action for collective 

redress  is  a  novel  addition  to  the  draft  law  that  seeks  to  address  the  issue  of  a  large  number  of 

actions overloading the judicial system, given that there are more than 100 000 former holders of 

eligible liabilities.  

1.7  The draft law12 provides that compensation is to be paid to those former holders who, as a result of 

the effect of the emergency measure, have suffered a loss greater than that which they would have 

suffered if the emergency measure had not been imposed13. An action for compensation may be 
brought no later than six months after the publication in the Official Journal of the Republic of Slovenia 

of a notice of the establishment of a virtual data room.   

1.8  Before the expiration of the time limit to bring an action, the competent district court14 (hereinafter 

the ‘competent court’) may, on the basis of a proposal from qualified applicants15, appoint an expert 

panel composed of independent experts tasked with preparing a preliminary opinion on whether and 

to what extent former holders would have received a payment in respect of their holding of an eligible 

instrument  in  the  absence  of  an  emergency  measure.  This  expert  panel  is  to  consist  of  seven 

members,  of  whom  the  competent  court  is  to  appoint:  (1)  two  members  nominated  by  the 

Government; (2) one member nominated by Banka Slovenije; (3) three members nominated by the 

representative  association  representing  the  interests  of  former  holders;  and  (4)  the  chairperson. 

Members of the expert panel must have expertise in financial and banking law, accounting, finance, 

auditing and asset valuation, with experience in asset quality review procedures for the prudential 

supervision of banks and corporate winding-up procedures within the Union. The competent court 

may appoint further experts if it concludes that other expertise is needed16. The Minister for Finance 

must set out in detail how the cost of the expert panel’s work, including its members’ emoluments, 

should be calculated17. 

1.9  The  expert  panel  must  prepare  a  draft  preliminary  opinion  within  six  months  and  send  it  to  the 

competent court, which must in turn forward it to the applicants18 for comment. The competent court 

must also post the draft preliminary opinion in the virtual data room and former holders with access 

to the room are to have 30 days to also provide their comments. Within three months of the expiration 

of  the  time  limit  for  comments,  the  expert  panel  is  to  draw  up  a  preliminary  opinion,  which  must 

11   
12  
13  
14  

15  
16  
17  
18  

Zakon o kolektivnih tožbah (Uradni list RS, št. 55/17). 
See Article 4 of the draft law. 

See also paragraph 1.11 of this Opinion. 
As set out in Article 6 of the draft law, the District Court of Maribor is to have exclusive jurisdiction in proceedings 
under the draft law. 
See Article 23(1), (2), and (3) of the draft law.  
See also Article 24(2) of the draft law.  

See Article 25(4) of the draft law. 
The applicants encompassing all those applicants eligible to propose the appointment of the expert panel pursuant 
to Article 23(1) of the draft law. 

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include the panel’s  assessment of the comments received on the draft preliminary opinion19. The 

competent court must post the preliminary opinion in the virtual data room and publish a summary of 

the opinion on its own website. The content of the summary of the preliminary opinion is to be drafted 

by the expert panel. 

1.10  Where, in the light of a preliminary opinion, it is established that all or some of the former holders 

have suffered loss as a result of the effect of the emergency measure that is greater than the loss 

they would have suffered had the emergency measure not been imposed, the Government must, by 

way of a regulation, put in place compensatory arrangements and determine the method of payment. 

Under such compensatory arrangements, an individual holder is to be entitled to no more than 60 % 

of  the  value  of  the  loss  suffered  as  a  result  of  the  emergency  measure  to  write-down  the  bank’s 

eligible liabilities.  

1.11  The draft law provides that in the court proceedings that follow the preliminary opinion stage, actions 

seeking relief under the draft law are to be brought against Banka Slovenije. The burden of proof will 

lie with Banka Slovenije, which will have to prove (1) the fulfilment of the conditions necessary for 

imposing extraordinary measures20 and (2) that the imposition of an extraordinary measure did not 

lead to the person seeking relief suffering greater losses than that person would have suffered if the 

bank had been declared insolvent, in accordance with the ‘no-creditor-worse-off-than-in-insolvency’ 

principle21.  

1.12  The Republic of Slovenia is to act as an intervener for Banka Slovenije in all proceedings provided 

for in the draft law22. The competent court will serve upon Banka Slovenije at once all proceedings 

in  which  the  claimants  seek  redress  under  the  draft  law,  and  which  relate  to  the  same  Banka 

Slovenije decision23. Banka Slovenije will then have six months to respond to any proceedings lodged 

under the draft law and the same time limit will also apply to collective actions.24. 

1.13  Whilst actions seeking relief under the draft law, and claims to make good the loss suffered, may be 

brought against Banka Slovenije25, the funds for the payment of all damages under the draft law, 

including the funds for the payment of the sums towards any compensatory arrangements26, will be 

provided by the Republic of Slovenia27. However, the Republic of Slovenia will be entitled to claim 

from Banka Slovenije in separate proceedings reimbursement of that part of the sums paid out and 

other costs constituting payment in respect of the loss caused by Banka Slovenije and anyone acting 

under  its  authority,  while  being  instructed  by  Banka  Slovenije,  through  their  conduct  if  they  have 

19  
20  

21 
22 
23  
24 
25  
26 
27 

See Article 23(9) of the draft law. 

As laid down in Article 253.a of the Law on banking. The conditions laid down in Article 253.a of the Banking Law are 
as follows: i) an increase in risk is prevailing in relation to the bank; ii) there are no circumstances indicated showing 
that the reasons for this increased risk are likely to be eliminated within a suitable time period, iii) 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 a suitable liquidity position within a suitable time; and iv) extraordinary measures are 
in the public interest to prevent a threat to the stability of the financial system. 
See the fifth paragraph of Article 261.a of the Law on banking.  

See Article 33 of the draft law.  
See Article 30 of the draft law. 
See Article 31 of the draft law. 

See Article 27 of the draft law. 
See Article 26(5) of the draft law. See also paragraph 1.11 of this Opinion. 
See Article 42 of the draft law. 

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seriously breached their duty of care28. The method and timing for the payment of the sums stemming 

from such claims to the Republic of Slovenia is to be governed by a special agreement between the 

Government of Slovenia and Banka Slovenije, which is to set out the rate and pace of payment in 

such a way as to ensure that the value of Banka Slovenije’s general reserves never falls below 1 % 

of its balance sheet total29. 

1.14  As regards provisions on the confidentiality regime and disclosure of documents envisaged under 

the draft law, the draft law maintains the approach introduced in earlier versions of the draft law30. In 

order to ensure the effectiveness of the protection of documents and data in a data room, the draft 

law establishes fines for violations31.  

1.15  The draft law regulates those proceedings that were already pending or will be pending in which the 

former holders of qualified bank credit seek judicial protection under civil law32. 

1.16  The draft law provides for one exception from the mandatory application of the draft law, in situations 

where  a  criminal  offence  has  been  declared  to  have  been  committed  in  relation  to  a  decision  of 

Banka Slovenije on an extraordinary measure by a final judgment of a criminal court. In such cases, 

the general rules for the recovery of damages and the general procedure will apply, instead of the 

special provisions of the draft law33. 

2. 

General observations 

2.1  The ECB has delivered four opinions on earlier versions of the draft law34, all prior to the judgment 

in Case C-45/21, which clarified the interpretation of Article 123(1) and Article 130 of the Treaty in 

the context of a national central bank (NCB) performing tasks other than the tasks of the European 

System of Central Banks (ESCB). The Court also ruled on the interpretation of certain provisions of 

secondary  Union  law  regarding  the  disclosure  of  confidential  information35,  clarifying  that  those 

provisions did not apply in the context of extraordinary measures adopted by Banka Slovenije in 2013 

and 2014.  

2.2  The current version of the draft  law differs  from its earlier versions in providing that  funds for  the 

payment  of  damages  under  the  draft  law,  including  funds  for  the  payment  of  sums  towards  any 

compensatory  arrangements36,  will  be  provided  by  the  Republic  of  Slovenia37.  The  Republic  of 

28 

29 
30 
31 
32 
33  
34 
35  

36  
37  

See Article 223.a of the Law on banking, which provided that Banka Slovenije and all of the persons acting on its 
behalf should act with the diligence of a good expert when exercising their supervisory functions. 
See Article 43(2) of the draft law. 

See paragraph 1.9 of Opinion CON/2019/13 and paragraph 1.13 of Opinion CON/2019/20. 
See Article 45 of the draft law. 
Based on Article 350.a of the Law on banking. See also Article 48 of the draft law. 

See Article 3(2) of the draft law. 
See Opinions CON/2017/16, CON/2017/41, CON/2019/13 and CON 2019/20.  
Article 33 of Directive 2001/24/EC of the European Parliament and of the Council of 4 April 2001 on the reorganisation 
and  winding  up  of  credit  institutions  (OJ  L  125,  5.5.2001,  p.  15),  Articles 44  to  52  of  Directive  2006/48/EC  of  the 
European Parliament and of the Council of 14 June 2006 relating to the taking up and pursuit of the business of credit 
institutions (OJ L 177, 30.6.2006, p. 1) and Articles 53 to 62 of 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. 33). 
Such as those envisaged under Article 26 of the draft law. See also paragraph 1.10 of this Opinion. 
See Article 43 of the draft law. 

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Slovenia is to claim from Banka Slovenije in separate proceedings reimbursement of that part of the 

sums paid out and other costs constituting payment in respect of the loss caused by Banka Slovenije 

and anyone acting under its authority through their conduct if they have seriously breached their duty 

of care under the Law on banking38. 

2.3 

In accordance with Article 14.4 of the Statute of the European System of Central Banks and of the 

European Central Bank, the NCBs may perform functions other than those specified in that Statute, 

unless the Governing Council finds that those functions interfere with the objectives and tasks of the 

ESCB. Where a Member State assigns such a function to its NCB, that NCB is responsible and liable 

for the performance of that function. Nevertheless, when defining the responsibility and liability of an 

NCB in relation to that function, Member States are required to comply with their obligations deriving 

from Union law and, in particular, Article 123(1) and Article 130 of the Treaty39. 

3. 

Specific observations 

3.1  Prohibition of monetary financing 

3.1.1  Article 123(1) of the Treaty prohibits the NCBs from granting overdraft facilities or any other type of 

credit facility to public authorities and bodies of the Member States. Article 1(1), point (b), of Council 

Regulation (EC) No 3603/9340 defines the term ‘other type of credit facility’ for the purposes of Article 

123 of the Treaty as, inter alia, any financing of the public sector’s obligations vis-à-vis third parties. 

Accordingly,  the  NCB  concerned  must  not  assume  obligations  vis-a  vis  third  parties  that  could 

potentially be incumbent on the public sector. Consequently, the NCB concerned must not finance 

pre-existing obligations vis-à-vis third parties that are incumbent on other public authorities or bodies 

and the effective financing of the obligations vis-à-vis third parties by the NCB concerned must not 

result  directly  from  the  measures  adopted,  or  from  the  policy  choices  made,  by  other  public 

authorities or bodies41.   

3.1.2  As clarified in the judgment in Case C-45/21, a regime under which an NCB incurs liability where that 

NCB or the persons it has authorised to act on its behalf have not complied with the duty to exercise 

due care imposed on them by national law, in the exercise of a function conferred on that NCB by 

that law, cannot, in principle, be regarded as involving financing of public sector obligations vis-à-vis 

third parties. Nevertheless, in view of the high degree of complexity and urgency characterising the 

implementation  of  reorganisation  measures  within  the  meaning  of  Directive  2001/24/EC,  such  a 

liability regime cannot be applied to damage resulting from the implementation of those measures 

by a NCB, without requiring that the infringement of the duty to exercise due care alleged against the 

NCB is of a serious nature. Otherwise, that would have the effect, in reality, of imposing on that NCB 

most  of  the  financial  uncertainties  inherent  in  that  implementation.  The  NCB  would  therefore  be 

required, in breach of the prohibition on monetary financing, to be responsible, in place of the other 

38  

39   
40   

41  

As previously noted, Article 223.a of the Law on banking states that Banka Slovenije and all of the persons acting 
on its behalf should act with the diligence of a good expert when exercising their supervisory functions. 
See judgment in Case C-45/21, paragraphs 53, 54, 57 and 97. 

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). 
See judgment in Case C-45/21, paragraphs 67 to 75 and 84. 

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public authorities of the Member State concerned, for the effective financing of obligations vis-à-vis 

third parties that might result from the economic policy choices made by those public authorities42. 

3.1.3  The draft law appears to comply with the above limitations stemming from the monetary financing 

prohibition laid down in Article 123(1) of the Treaty. In this respect, the ECB considers it important 

that under the draft law it is the Republic of Slovenia that is primarily liable for paying damages to 

former holders for the loss they suffered. Banka Slovenije is liable for reimbursing the damages paid 

by the Republic of Slovenia only if Banka Slovenije and anyone acting under its authority, and while 

being instructed by Banka Slovenije, have seriously breached their duty of care under the Law on 

banking43. The fact that the burden of proof relating to compliance with the duty to exercise due care 

falls on Banka Slovenije is not decisive, for the purposes of Article 123(1) of the Treaty, insofar as 

that distribution of the burden of proof preserves, in any event, the possibility for Banka Slovenije to 

release itself from its liability by proving that it did not infringe that duty in a serious manner44. As 

clarified in the judgment in Case C-45/21, Article 123(1) of the Treaty must be interpreted as not 

precluding national legislation which provides that an NCB belonging to the ESCB is liable, from its 

own funds, for damage suffered by former holders of financial instruments cancelled by it pursuant 

to reorganisation measures, within the meaning of Directive 2001/24/EC, ordered by that NCB, where 

it appears, during subsequent court proceedings, that either that cancellation was not necessary in 

order to ensure the stability of the financial system or former holders of financial instruments suffered 

greater  losses  as  a  result  of  that  cancellation  than  they  would  have  suffered  in  the  event  of  the 

insolvency of the financial institution concerned, to the extent that the NCB in question is held liable 

only where it or the persons which it authorised to act on its behalf acted in serious breach of their 

duty to exercise due care45. The ECB understands that the preliminary opinion has been introduced 

in the draft law with a view to achieving expedited proceedings by way of facilitating the possibility 

for the government to settle certain claims in applicable cases46. In other cases, the adoption of the 

preliminary opinion is an important step towards the final judgment on the merits as the competent 

court may rely on the preliminary opinion in the main proceedings envisaged under the draft law47. 

The  ECB  understands  that  the  preliminary  opinion  would  not  be  applicable  in  the  separate 

reimbursement proceedings between the Republic of Slovenia and Banka Slovenije envisaged under 

the draft law48. In the light of the above considerations, the ECB understands that the preliminary 

opinion would be used to serve the abovementioned purposes and would not impede the ability of 

Banka Slovenije to prove that it did not infringe its duty to exercise due care. 

3.2  Financial independence of Banka Slovenije  

42  
43   

44  
45   
46   
47  
48  

See judgment in Case C-45/21, paragraph 75. 
Article 223.a of the Law on banking provided that Banka Slovenije and all of the persons acting on its behalf should 
act with the diligence of a good expert when exercising their supervisory functions. 
See judgment in Case C-45/21, paragraph 76. 
See judgment in Case C-45/21, paragraph 79. 

See Article 26 of the draft law. 
See Article 38(1) of the draft law. 
See Article 43(1) of the draft law. 

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3.2.1  Article 130 of the Treaty prohibits Member States from placing their NCBs in a situation which in any 

way undermines their ability to carry out independently a task falling within the scope of the ESCB49. 

This would be the case if, for example, an NCB were precluded from building up adequate financial 

resources in the form of reserves or buffers to offset losses, particularly those resulting from monetary 

policy operations, and the Member State concerned did not ensure in advance that the NCB had the 

necessary funds to bear the financial burden resulting from exercising a function outside the scope 

of the ESCB (such as the funds necessary to be able to pay the compensation resulting from the 

liability regime for that function), while retaining its ability to carry out its ESCB tasks effectively and 

independently50. An NCB constrained in its ability to create and/or restore its reserves or buffers may 

need to seek the consent of political authorities to obtain funding or recapitalisation. This places the 

NCB  in  a  situation  of  dependence  on  those  political  authorities51.  As  noted  by  the  Court  in  the 

judgment in Case C-45/21, the authors of the Treaty intended to ensure that the ESCB should be in 

a position to carry out independently the tasks conferred upon it52. Article 130 of the Treaty purports 

to shield the ESCB from all political pressure in order to enable it to pursue the objectives ascribed 
to its tasks effectively, through the independent exercise of the specific powers conferred on it for 

that purpose by primary law. In this respect, the Court noted that the establishment of reserves by 

the NCBs is essential, in particular in order to be able to offset any losses resulting from monetary 

policy operations53. Accordingly, legislation such as that envisaged under the earlier version of the 

draft law, which affected the ability of the NCB to establish reserves (due to the imposition of a levy 

in these reserves) or to restore them (because the NCB’s profits could be systematically used for 

purposes other than restoring the level of these reserves), was considered incompatible with Article 

130 of the Treaty as it could expose the NCB to political pressures.  

3.2.2  Under the draft law, Banka Slovenije could still bear liability for part of the damages paid out by the 

Republic of Slovenia under the draft law under a reimbursement procedure for the recovery by the 

Republic of Slovenia of the amount of damages stemming from loss caused by Banka Slovenije and 

anyone acting under its authority through their conduct if they have seriously breached their duty of 

care under the Law on banking54. To this end, the ECB notes that, in contrast to the earlier version 

of the law, the draft law guarantees that Banka Slovenije’s general reserves will not fall below 1 % of 

its  balance  sheet  total,  allowing  for part  of  the  current  general reserves of  Banka  Slovenije  to  be 

eventually used to offset losses55. The ECB also notes that if the levels of Banka Slovenije’s general 

reserves  were  to  fall  below  1  %  (whether  for  reasons  related  or  unrelated  to  these  potential 

reimbursements) the reimbursement to the Republic of Slovenije would need to be deferred. The 

ECB would welcome further clarification on whether the special agreement between the Government 

of the Republic of Slovenia and Banka Slovenije referred to in the draft law would, nevertheless, be 

subject to an overall time limit in terms of a maximum duration in years during which Banka Slovenije 

49   
50  
51   
52  
53  
54 
55  

  See judgment in Case C-45/21, paragraph 97. 
See judgment in Case C-45/21, paragraph 105. 

See judgment in Case C-45/21, paragraphs 100 to 102. 
See judgment in Case C-45/21, paragraph 93. 
See judgment in Case C-45/21, paragraph 100. 

Article 223a of the Law on banking. 
For the year 2022, the level of Banka Slovenije’s general reserves is 3.75 % of Banka Slovenije’s balance sheet 
total.  

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would  be  obliged  to  allocate  part  of  its  funds  towards  the  payment  of  the  sums  stipulated  in  that 

special agreement. 

ECB-PUBLIC 

This opinion will be published on EUR-Lex.  

Done at Frankfurt am Main, 15 December 2023.  

[signed] 

The President of the ECB 

Christine LAGARDE 

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