Opinion of the Advocate General — ECLI:EU:C:2024:511
Date: 2024-06-13
Language of the case: Polish
Procedure: Reference for a preliminary ruling
Origin: Poland

Summary C-118/23 – 1 
Case C-118/23 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
21 February 2023 
Referring court: 
Wojewódzki Sąd Administracyjny w Warszawie (Poland) 
Date of decision to refer: 
26 January 2023 
Applicant: 
Rada nadzorcza Getin Noble Bank and Others  
Defendant: 
Bankowy Fundusz Gwarancyjny 
  
Subject matter of the main proceedings 
Action brought by Rada Nadzorcza Getin Noble Bank S.A. (Supervisory Board of 
Getin Noble Bank, a public limited company) and Others against a decision of 
Bankowy Fundusz Gwarancyjny (Bank Guarantee Fund) of 29 September 2022 
concerning compulsory restructuring 
Subject matter and legal basis of the request 
Article 85(2) and (3) of Directive 2014/59/EU – Action brought, by the 
supervisory board of an entity undergoing restructuring, before a national 
administrative court against a decision concerning compulsory restructuring – 
Provision of an effective remedy for persons having a legal interest in challenging 
that decision where the court, in reviewing the decision, is not bound by the pleas 
in law and conclusions of the action and the legal basis thereof, the judgment 
given in that case will be effective erga omnes, and those persons obtaining 
protection of their legal interest is not conditional on them bringing a separate 
action against that decision – Article 47 of the Charter of Fundamental Rights of 
EN 
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the European Union – National requirement relating to the joining of actions and 
requirement relating to a hearing within a reasonable time – Article 3(3) of 
Directive 2014/59/EU – Possibility of not structurally separating functions of the 
resolution authority from the other functions of that authority as statutory 
guarantor of bank deposits or bank insolvency administrator (temporary 
administrator) and need to ensure operational independence and avoid conflicts of 
interest – Failure by a Member State to fulfil its obligation to put in place 
adequate structural arrangements to ensure operational independence and avoid 
conflicts of interest between the functions of supervision or other functions of the 
relevant authority and the functions of the resolution authority – Other 
organisational arrangements and actions of the resolution authority and 
satisfaction of the condition relating to operational independence and avoidance of 
conflicts of interest 
Questions referred for a preliminary ruling 
1 Is Article 85(2) and (3) of 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 2014 L 173, p. 190, as amended), in 
conjunction with Article 47 of the Charter of Fundamental Rights of the European 
Union (OJ 2007 C 303, p. 1), and the second paragraph of Article 19(1) of the 
Treaty on European Union (Dz. U. of 2004, No 90, item 864/30, as amended), to 
be interpreted as meaning that, when the supervisory board of an entity 
undergoing restructuring brings an action before a national administrative court 
against a decision concerning compulsory restructuring, an effective legal remedy 
is deemed to be available also to persons who, in bringing an action against that 
decision, seek protection of their legal interest, where the court, in reviewing the 
contested decision, is not bound by the pleas in law and conclusions of the action 
or the legal basis relied on, a final judgment, given as a result of hearing that 
action, is effective erga omnes, and the possibility for those persons obtaining 
protection of their legal interest is not conditional on them bringing a separate 
action before an administrative court against that decision? 
2 Is Article 85(3) of Directive 2014/59/EU, which requires effective judicial review, 
and Article 47 of the Charter of Fundamental Rights of the European Union, and 
the second subparagraph of Article 19(1) of the Treaty on European Union, which 
provide for effective legal protection, to be interpreted as precluding the 
application of a procedural rule of a Member State which requires a national 
administrative court to hear jointly all actions brought before it against a decision 
of a resolution authority where the application of that rule, together with other 
national procedural requirements relating to administrative courts, makes it 
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excessively difficult, if not impossible, to give judgment in the case within a 
reasonable period, in view of the large number of such actions? 
3 Is Article 3(3) of Directive 2014/59/EU be interpreted as permitting a Member 
State – in order to ensure operational independence and avoid conflicts of 
interest – not to separate structurally the functions of the resolution authority from 
the other functions of that authority as statutory guarantor of bank deposits or 
bank insolvency administrator (temporary administrator) appointed pursuant to a 
decision of the competent national authority for supervision for the purposes of 
Regulation (EU) No 575/2013 and Directive 2013/36/EU? 
4 Is Article 3(3) of Directive 2014/59/EU to be interpreted as meaning that, where a 
Member State fails to fulfil its obligation to put in place adequate structural 
arrangements to ensure operational independence and avoid conflicts of interest 
between the functions of supervision under Regulation (EU) No 575/2013 and 
Directive 2013/36/EU or other functions of the relevant authority and the 
functions of the resolution authority, the condition relating operational 
independence and avoidance of conflicts of interest may be deemed to be satisfied 
if the national administrative court reviewing the decision concerning compulsory 
restructuring finds that the other administrative arrangements made were 
sufficient to achieve that effect? 
Provisions of European law relied on 
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: 
recitals 50, 51, and 88; Articles 3(3) and (4), 29, 73, 74, 75, and 85(2) to (4). 
Charter of Fundamental Rights of the European Union: Article 47. 
Treaty on European Union: second paragraph of Article 19(1). 
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: Articles 2(1) and 4(1)(40). 
Provisions of national law relied on 
1. Ustawa z dnia 10 czerwca 2016 r. o Bankowym Funduszu Gwarancyjnym, 
systemie gwarantowania depozytów oraz przymusowej restrukturyzacji (Law of 
10 June 2016 on the Bank Guarantee Fund, the deposit guarantee scheme and 
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compulsory restructuring (consolidated text, Dz. U. of 2022, item 793, as 
amended; ‘the BGF Law’): 
Articles 2(81), 13, 66, 137(1), 241, and 242 
Article 5(1), (3) and (6), which is worded as follows: 
‘1. The Fund’s tasks shall include: 
(1) performing obligations arising from the deposit guarantee, in particular 
paying guaranteed funds to depositors; 
(2) checking the data contained in the calculation systems of the entities covered 
by the guarantee scheme; 
(3) restructuring entities referred to in Article 64(2) by writing down or 
converting capital instruments; 
(4) carrying out compulsory restructuring; 
(5) preparing, reviewing and updating compulsory restructuring plans and group 
compulsory restructuring plans; 
(6) collecting and analysing information on entities covered by the guarantee 
scheme and mortgage banks, in particular with a view to preparing analyses and 
forecasts for the banking and credit union sector and individual banks and credit 
unions; 
(7) carrying out other activities for the stability of the national financial system. 
3. The Fund shall cooperate with other entities acting for the stability of the 
national financial system, entities operating deposit guarantee schemes, and also 
competent authorities for compulsory restructuring, the European Banking 
Authority and the competent authorities for compulsory restructuring for a group, 
the competent authorities for compulsory restructuring for a significant branch, 
the competent authorities for compulsory restructuring for a subsidiary, and the 
competent third-country authorities for compulsory restructuring. 
6. The Financial Supervision Authority shall, at the request of the Fund, 
appoint the Fund as insolvency administrator within the meaning of Article 144(1) 
of the Law on Banking Law or Article 72c(1) of the Law on co-operative savings 
and credit unions. The Fund shall not be entitled to remuneration within the 
meaning of Article 144(8) of the Law on Banking Law or Article 72c(11) of the 
Law on co-operative savings and credit unions.’ 
Article 6(1): 
‘The bodies of the Fund shall be the Fund Council and the Fund Management 
Board’. 
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Article 7(4): 
‘4. The Fund Council shall comprise the following members: 
(1) three representatives of the Minister competent for financial institutions, 
including the Chair of the Fund Council; 
(2) two representatives of the National Bank of Poland delegated by the 
President of the National Bank of Poland; 
(3) one representative of the Financial Supervision Authority delegated by the 
Chair of the Financial Supervision Authority.’ 
Article 10(1): 
‘1. The Fund Management Board shall consist of between three to five 
members, including the President and his or her Deputy’. 
Article 11(1) to (3), (5), (6) to (9) and (13), and Article 66, with particular 
reference to paragraphs (1) and (2) of that article: 
‘1. The Fund Board shall manage the Fund’s operations and represent it 
externally. 
2. The tasks of the Fund Board shall include: 
(1) drawing up the Fund’s draft business plan and financial plan; 
(2) managing the Fund’s assets, subject to the powers of the Fund Council; 
(3) submitting quarterly and annual management reports to the Fund Council; 
(4) submitting proposals to the Fund Council on matters referred to in 
Article 8(1)(5) to (10) and (13); 
(5) performing other tasks of the Fund which are not reserved to the Fund 
Council’. 
Article 101(1), (3) to (7), (10) to (11) and (14): 
‘1. The Financial Supervision Authority shall notify the Fund without delay of 
the following: 
(1) the risk of an entity becoming bankrupt; 
(2) the absence of indications that the supervisory action that can be taken, or 
action by that entity, will allow that risk to be removed in good time.(…) 
3. An entity shall be considered at risk of bankruptcy where one or more of the 
circumstances arise: 
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(1) there are grounds for believing that it will fail to comply with the conditions 
for carrying on its business to an extent which justifies revocation or withdrawal 
of its authorisation to establish a bank or carry on brokerage business by an 
investment firm; 
(2) the assets of the entity are insufficient to meet its liabilities or there are 
indications that the assets of the entity are insufficient to meet its liabilities; 
(3) the entity will not meet its due liabilities or there are grounds to believe that 
it will not do so; 
(4) continuation of the entity’s operations requires the commitment of 
extraordinary public funds. 
4. The Financial Supervision Authority shall assess fulfilment of the conditions 
set out in paragraph 1 on the basis of: 
(1) the results of the supervisory review and assessment; 
(2) the results of implementation of the recovery plan and the application of 
supervisory measures, including early intervention measures; 
(3) the results of the asset quality review; 
(4) notifications from the entity’s management board; 
(5) other information obtained through supervision. 
5. In assessing whether the conditions set out in paragraph 1 have been met, the 
Financial Supervision Authority shall take account inter alia of: 
(1) the entity’s infringement or risk of infringement of the requirements relating 
to own funds, liquidity and leverage; 
(2) an assessment of the entity following a supervisory review and assessment 
indicating that the entity is in an adverse financial position; 
(3) a loss or the risk of a loss significantly affecting own funds; 
(4) an infringement of the minimum level of own funds and eligible liabilities 
set by the Fund; 
(5) conduct by the entity of operations in breach of the law or articles of 
association, which may lead to insolvency or loss of liquidity by the entity; 
(6) failure to implement the recommendations of the Financial Supervision 
Authority. 
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6. The Financial Supervision Authority shall provide the information referred 
to in paragraph 1 also to: […] 
(6) the authority managing a recognised deposit guarantee scheme in the 
country in whose territory the parent entity is established; 
(7) the authorities managing the compulsory restructuring funds in the State in 
whose territory the parent entity is established, where the fund is not managed by 
the competent authority for compulsory restructuring for a group; 
(8) the Chair of the Financial Stability Committee […]. 
7. Where the following conditions are met cumulatively: 
(1) a national entity is at risk of bankruptcy, 
(2) there are no reasonable indications that action by the national entity or the 
institutional protection scheme or supervisory action, including early intervention 
measures, will allow the risk of bankruptcy to be removed in good time, 
(3) action in respect of the national entity is necessary in the public interest 
- the Fund shall take a decision to initiate compulsory restructuring in respect 
of the national entity or a decision to write drown or convert capital instruments or 
eligible liabilities within the meaning of Article 70(1)(1). 
10. Action as part of compulsory restructuring shall be taken in the public 
interest if it is necessary to ensure implementation of one or more of the objectives 
of the compulsory restructuring within the meaning of Article 66, is proportionate 
to those objectives, and could not be achieved to the same extent through 
bankruptcy proceedings. 
11. Before taking the decision within the meaning of paragraph 7, the Fund shall 
seek the opinion of the Financial Supervision Authority as to whether the 
conditions laid down in paragraph 7(1) and (2) are met. The Financial Supervision 
Authority shall take its opinion within five working days. Where, in the view of 
the Fund, the conditions set out in paragraphs 7, 8 or 9 have not been met, the 
Fund shall inform the Financial Supervision Authority. 
14. A national entity or entities within the meaning of Article 64(2)(a), (c) or (d) 
shall be wound up in accordance with the rules laid down in separate provisions 
where the conditions laid down in paragraph 7(1) and (2) are met, but the 
condition laid down in paragraph 7(3) is not’. 
Article 103(1) to (5) 
‘1. The Fund shall notify the entity of a decision as referred to in Article 101(7) 
to (9) and Article 102(1) and (4). 
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2. An entity within the meaning of Article 101(7) to (9) and Article 102(1) and 
(4) shall be a party to the proceedings to initiate compulsory restructuring. 
3. The Fund shall draw up a statement of reasons for a decision within the 
meaning of Article 101(7) to (9) and Article 102(1) and (4) within 14 days of its 
notification to the entity undergoing restructuring. 
4. The statement of reasons for the decision shall be notified to the entity 
undergoing restructuring also in electronic form. 
5. The supervisory board of the entity undergoing restructuring may bring an 
action against the decision before the administrative court within seven days from 
the date of notification of the statement of reasons for the decision to that entity. 
Any person whose legal interest has been infringed by the decision shall also be 
entitled to bring an action before administrative court.’ 
Article 104 
‘1. In the case set out in Article 103(5), the action shall be brought through the 
Fund. The Fund shall forward the action to the administrative court having 
jurisdiction, together with complete and orderly case documents and the response 
to the action within 14 days of receipt thereof. 
2. The administrative court shall consider the action within 30 days of receipt 
thereof, together with the case files and the response to the action. 
3. The Supreme Administrative Court shall consider an appeal on a point of 
law within two months from the date of receipt thereof. 
4. The time limits laid down in paragraphs 2 and 3 shall not include the time 
limits laid down in law for the performance of specific actions, periods of staying 
of proceedings, and periods of delay caused by the fault of a party or for reasons 
beyond the control of the court’. 
Article 105, in particular paragraphs 3 and 4: 
‘3. A final judgment of an administrative court finding that the taking of a 
decision by the Fund in breach of the law shall not affect the validity of legal acts 
carried out pursuant thereto, and shall not preclude the Fund from carrying out 
actions pursuant thereto, in the event that the suspension of such acts poses a 
threat to the value of the entity’s business, the continuity of the performance of 
obligations which the compulsory restructuring aims to protect, the financial 
stability or the rights, acquired in good faith of third parties, in particular those 
who have acquired in-rem rights or assumed liabilities as a result of the Fund’s 
decision to apply instruments of compulsory restructuring. 
4. Liability for damages for a decision taken by the Fund in breach of the law 
by the Fund shall be limited to the amount of the loss suffered’. 
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2. Ustawa z dnia 30 sierpnia 2002 r. Prawo o postępowaniu przed sądami 
administracyjnymi (Law of 30 August 2002 on the Code of procedure before the 
administrative courts) (consolidated text, Dz. U. of 2022, item 329, as amended; 
‘Code of procedure before the administrative courts’): 
Articles 51, 53(4), 151, and 244(1) 
Article 111(1): 
‘1. The court shall order that a number of separate cases pending before it be 
joined for the purpose of their being heard or also determined jointly, if they 
could have been covered by a single application’. 
Article 134(1): 
‘1. The court shall rule within the limits of the case in question without, however, 
being bound by the pleas in law and the conclusions of the action and the legal 
basis relied on, subject to Article 57a’. 
Article 170 
‘A final judgment shall be binding not only on the parties and the court which 
gave it, but also other courts and other state authorities and, in cases provided for 
in law, also other persons.’ 
3. Ustawa z dnia 25 lipca 2002 r. Prawo o ustroju sądów administracyjnych 
(Law of 25 July 2002 on the organisation of the administrative courts) 
(consolidated text, Dz. U. of 2022, item 2492; ‘Law on the organisation of the 
administrative courts’): Article 1. 
4. Ustawa z dnia 23 kwietnia 1964 r. Kodeks cywilny (Law of 23 April 1964 
establishing the Civil Code (consolidated text, Dz. U. of 2022, item 1360, as 
amended; ‘the Civil Code’) 
Article 417(1) 
‘1. The Public Treasury, a regional authority or another legal person exercising 
State authority by virtue of the law shall be liable for damage caused by 
unlawful acts or omissions in the exercise of State authority. […]’. 
Article 4171(2) 
‘2 If the damage was caused by a final ruling or a final decision, compensation 
for that damage may be claimed once it has been established, in appropriate 
proceedings, that that ruling or that decision is unlawful, save as otherwise 
provided. This shall also be the case where the final ruling or the final 
decision was adopted on the basis of a legislative act that is incompatible 
with the Constitution, a ratified international agreement or a law’. 
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5. Ustawa z dnia 21 lipca 2006 r. o nadzorze nad rynkiem finansowym (Law of 
21 July 2006 on supervision of the financial market) (consolidated text, Dz. U. of 
2022, item 660, as subsequently amended; ‘Law on supervision of the financial 
market’): 
Article 1(2)(1) 
Article 3(1) 
‘The Office of the Financial Supervision Authority, hereinafter referred to as “the 
Office of the Commission”, shall be a State legal person whose task is to provide 
services to the Financial Supervision Authority and the Chair of the Financial 
Supervision Authority.’ 
Article 3(4)(1) 
‘The bodies of the Office of the Commission shall be: 
(1) the Financial Supervision Authority, hereinafter referred to as “the 
Authority”, which shall be competent for supervision of the financial 
market;’ 
Article 3a 
‘The Authority shall be a competent authority within the meaning of 
Article 4(1)(40) of Regulation No 575/213 […]’. 
6. Ustawa z dnia 5 sierpnia 2015 r. o nadzorze makroostrożnościowym nad 
systemem finansowym i zarządzaniu kryzysowym w systemie finansowym (Law 
of 5 August 2015 on the macroprudential supervision of the financial system and 
crisis management in the financial system) (consolidated text, Dz. U. of 2022, 
item 963, as amended; ‘Law on macroprudential supervision’) 
Article 2, 
Article 3: 
‘1. The competent authority for macroprudential supervision and crisis 
management shall be the Authority. 
2. The designated authority for the purposes of Article 458(1) of Regulation 
(EU) 575/2013 shall be the Authority and, for the application of national 
measures within the meaning of Article 458(2)(d), (5) and (10) of 
Regulation (EU) 575/2013, the Minister for Finance’. 
Article 7(1): 
‘1. The members of the Authority shall be: 
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(1) the Minister for Finance; 
(2) the President of the National Bank of Poland; 
(3) the Chair of the National Supervision Authority; 
(4) the President of the Management Board of the Bank Guarantee Fund’. 
7. Ustawa z dnia 29 sierpnia 1997 r. Prawo bankowe (Law of 29 August 1997 
on banking law) (consolidated text, Dz. U. of 2021, item 2439, as amended; ‘Law 
on banking’) 
Article 144(1), (1 a), (3) and (4) 
‘1. In a case referred to in Article 138(3), on account of circumstances set out in 
Article 142(1), the Financial Supervision Authority may, subject to Article 5(6) of 
the Law of 10 June 2016 on the Bank Guarantee Fund, the deposit guarantee 
scheme and compulsory restructuring, take a decision to appoint an insolvency 
administrator at the bank, in order to improve the situation of the bank or ensure 
the effectiveness of the recovery plan implemented. 
1a. In a case referred to in paragraph 1, the Financial Supervision Authority 
shall specify in the decision the detailed scope of the tasks of the insolvency 
administrator.[…] 
3. The insolvency administrator shall have the right to object to resolutions and 
decisions of the bank’s management board and supervisory board. A statement of 
intention to object made at a meeting of the supervisory board or the management 
board shall suspend the implementation of the resolution or decision concerned. 
[…] 
4. The insolvency administrator may challenge a resolution of the general 
meeting of shareholders or a resolution of the general meeting of a cooperative 
bank which infringes the bank’s interest, respectively pursuant to Article 422(1) of 
the Companies Code or Article 42(3) of the Law on cooperative law’. 
Succinct presentation of the facts and procedure in the main proceedings 
5 By a decision of 22 December 2021, the Financial Supervision Authority (‘the 
KNF’) appointed, on 27 December 2021, an insolvency administrator at Getin 
Noble Bank S.A., established in Warsaw (‘GNB’), in order to improve the 
financial situation of GNB, on account of the conduct of operations in breach of 
the law and the emergence of a risk to the interests of bank account holders. The 
KNF defined the scope of the insolvency administrator’s tasks, which included, 
inter alia: (a) monitoring the actions taken by the bodies of GNB in order to: (i) 
restore capital ratios to levels meeting regulatory requirements; (ii) rebuild GNB’s 
long-term profitability; (iii) improve asset quality; (iv) ensure the effectiveness of 
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the GNB recovery plan being implemented or updated, if approved by the KNF; 
(b) submitting to the KNF, in writing, monthly reports on its operations containing 
an assessment of GNB’s financial situation, together with an indication and 
assessment of potential risks and the state of play of preparation of the recovery 
plan or the updating thereof and the implementation by the GNB Management 
Board of the recovery actions set out therein; (c) attend all meetings of GNB’s 
bodies and meetings of GNB’s audit committee; (d) present information on 
GNB’s current situation at meetings of the KNF and provide information thereon 
as whenever so required by the KNF; (e) exercise all powers of the insolvency 
administrator arising from the provisions of law; and (f) observe the principles 
relating to the protection of information and legally protected secrets. 
6 By letter of 18 August 2022, KNF, acting pursuant to Article 101(1) of the BGF 
Law, informed the BGF of the risk that GNB would become bankrupt and that 
there were no indications that the supervisory actions that could be taken or action 
by GNB would allow that risk to be removed in good time. 
7 The BGF, acting as resolution authority, initiated proceedings to take decisions to: 
initiate compulsory restructuring in relation to GNB and write down or convert 
capital instruments or eligible liabilities in relation GNB, appoint an administrator 
in relation to GNB, and apply compulsory restructuring instruments in relation to 
GNB. 
8 After obtaining the opinion of the KNF, within the meaning of Article 101(11) of 
the BGF Law, the consent of the Minister for Finance and the opinion of the BGF 
Council, the Fund initiated, by decision of 29 September 2022, compulsory 
restructuring in relation to GNB, wrote down, as at the end of the day on which 
the compulsory restructuring was initiated, the listed capital instruments issued by 
the bank, and applied a compulsory restructuring instrument in relation to GNB in 
the form of a bridge institution, in such a way that the assets set out in the decision 
were transferred to the bridge institution, Bank BGF S.A., on 3 October 2022, 
with a list of exceptions, inter alia in-rem rights arising from de facto, de jure or 
unlawful acts relating to credit and loan agreements denominated in Swiss francs 
(CHF) or indexed to the exchange rate of Swiss francs (CHF), and claims arising 
from those in-rem rights, including those covered by civil and administrative 
proceedings, irrespective of the date on which they were raised, and appointed an 
insolvency administrator at the entity undergoing restructuring, specifying in 
detail its powers and obligations in relation to the Fund (‘the BGF decision’). 
9 The addressees of the BGF decision were: GNB, Bank BGF S.A., established in 
Warsaw (‘the BGF bank’, ‘the bridge institution’), and TD (‘the administrator’). 
10 Exercising its right in this regard, the Supervisory Board of GNB brought an 
action against the BGF decision before the Wojewódzki Sąd Administracyjny w 
Warszawie (Regional Administrative Court, Warsaw) (‘the referring court’). 
Actions were also brought by other entities, including the owners of the written 
down shares or bonds issued by GNB, GNB’s creditors, and the parties to loans 
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and credit agreements concluded with it denominated in foreign currency or 
indexed to the exchange rate of a foreign currency. As at the date of the order for 
reference, the Wojewódzki Sąd Administracyjny had received over 7 000 actions 
against the BGF Decision. The stage for registering actions is still open. 
11 Some of the actions brought requested that questions be referred to the Court of 
Justice for a preliminary ruling on the interpretation of Article 3(3) of Directive 
2014/59/EU, the effects of the lack of separation and ensuring of organisational 
independence and the avoidance of conflicts of interest between supervisory or 
other functions and the functions of the resolution authority. 
12 Pursuant to Article 111(1) of the Code of procedure before the administrative 
courts, the Wojewódzki Sąd Administracyjny ordered, in camera on 26 January 
2023, that the actions be joined for joint hearing and determination. It then 
decided to refer questions to the Court of Justice for a preliminary ruling. 
The essential arguments of the parties in the main proceedings 
13 The applicants seek a declaration that the BGF decision was taken in breach of 
substantive law, and also in breach of procedural rules affecting the outcome of 
the case. A finding that the decision was taken in breach of the law will allow 
them to seek damages through a civil action. 
14 They raise, inter alia, the following issues: 
- the lack of independence of the enforcement authority on account of: the 
cumulation of roles performed in relation to GNB by the BGF, to which the 
legislature entrusted the role of enforcement authority and, at the same time, 
insolvency administrator of GNB subject to compulsory restructuring; incorrect 
implementation of Directive 2014/59/EU, namely the failure to ensure the 
procedural safeguards arising therefrom; lack of clear separation and operational 
independence of supervisory functions, deposit guarantor functions and resolution 
functions; conflict of interest on the part of the BGF constituting an impediment to 
performance of the functions of compulsory restructuring authority; 
- the defective nature of the evaluation reports drawn up for the purposes of the 
compulsory restructuring and the assessment thereof by the BGF, in particular as 
regards the provision for loans denominated in CHF and the analysis concerning 
the winding-up scenario; 
- the assessment of satisfaction of the second condition for initiating compulsory 
restructuring (Article 101(7)(2) of the BGF Law), including the defective nature 
of the authority’s position on the impossibility of removing the risk of GNB’s 
bankruptcy and the increase in the risk weight for CHF loans; 
- the assessment of satisfaction of the third condition for compulsory restructuring, 
namely the public interest (Article 101(7)(3) of the BGF Law), inter alia: 
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erroneous analysis of the GNB’s market share and identification of the critical 
function (Article 66(1) and (3) of the BGF Law), erroneous analysis of the threat 
to financial stability and confidence in the financial sector (Article 66(1) of the 
BGF Law), and interpretation of the condition for limiting the commitment of 
public funds (Article 66(2) of the BGF Law); 
- the manner in which the compulsory restructuring was financed, including: the 
lawfulness of the financing thereof involving funds from the commercial banks’ 
protection scheme, and the infringement of the provisions on covering the losses 
of the entity under restructuring from the funds at the disposal of the BGF. 
15 The Supervisory Board of GNB raises the following pleas in law: 
1. Infringement of national procedural rules in connection with Article 137(1) of 
the BGF Law, which could have a significant impact on the outcome of the case, 
by the making an arbitrary rather than a free assessment of the evidence, namely 
Assessment Report 1 of 24 September 2022. 
2. Infringement of substantive law: 
- Article 3(3) of Directive 2014/59/EU, by the conduct and determination of 
administrative proceedings to initiate compulsory restructuring in conditions of an 
impermissible conflict of interest on the part of the authority, arising from the 
simultaneous performance by the BGF of the function of insolvency administrator 
of GNB and the compulsory restructuring authority, which led to the authority 
creating the condition for initiating compulsory restructuring laid down in 
Article 101(7)(2) of the BGF Law, 
- Article 3(3) of Directive 2014/59/EU, in conjunction with Article 5(1)(1) and (4) 
and Article 11(5) of the BGF Law, by the finding that a situation where the BGF 
conducts and determines administrative proceedings to initiate compulsory 
restructuring under conditions of an impermissible conflict of interest on the part 
of the authority, arising from the simultaneous performance by the BGF of the 
functions of a bank deposit guarantee institution and compulsory restructuring 
authority, which are not separate functions, is permissible in the light of the 
abovementioned provision of the directive, even though such a situation 
constituted a manifest infringement of the procedural guarantee relating to the 
independence of the authority contained in Directive 2014/59/EU, 
- Article 101(7)(2) of the BGF Law, by the taking of a decision to initiate 
compulsory restructuring of GNB dictated by satisfaction of the condition relating 
to impossibility of averting the risk of GNB becoming bankrupt, where the State 
benefits from its own unlawful action, which consisted in the introduction of 
additional capital requirements for GNB contrary to objective regulatory needs 
and contrary to Article 124(2) of Regulation (EU) 575/2013, and creating panic 
among GNB’s customers, which resulted in a significant outflow of deposits from 
GNB and a loss of market confidence in GNB, 
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15 
- Article 66(1) and (3) of the BGF Law, in conjunction with Article 2(17) thereof, 
by incorrect interpretation and application thereof, resulting in the finding that 
GNB performs a critical function and that there is a threat to financial stability of 
the State, 
- Article 66(2) of the BGF Law, by the erroneous application thereof, where the 
circumstances of the case show that the scenario of compulsory restructuring, as 
compared with winding up in the form of bankruptcy, is not more favourable from 
the point of view of limiting the use of public funds, 
- Article 66(1) of the BGF Law, in conjunction with Articles 6(1) and 7(1) of 
Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer 
contracts (OJ 1993 L 95, p. 29), applied directly and in conjunction with 
Article 101(10) of the BGF Law, by failure to apply them and analyse the 
potential impact of compulsory restructuring of the bank on the situation of 
foreign currency borrowers. 
16 In its responses to the actions, the BGF: 
- maintained the position set out in the contested decision, 
- argued that the bank’s insolvency administrator does not perform supervisory 
functions for the purposes of Regulation (EU) No 575/2013 and Directive 
2013/36/EU; there is no conflict of interest between the functions of the bank’s 
insolvency administrator and bank deposit guarantor and the functions of the 
resolution authority; and it put in place organisational and structural arrangements 
which served to create a guarantee of operational independence and avoid 
conflicts of interest between the performance of the resolution function and the 
performance of other functions, including the performance of supervisory 
functions (without indicating any specific arrangements), 
- requested that the actions be dismissed as unfounded. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
17 The Wojewódzki Sąd Administracyjny w Warszawie is a court or tribunal within 
the meaning of the second paragraph of Article 267 TFEU. 
18 First, the referring court has doubts as to the interpretation of Article 85(3) of 
Directive 2014/59/EU, which confers a right of appeal against decisions taken by 
a resolution authority on all persons affected by the decision, in the light of the 
right to an effective remedy and a hearing within a reasonable time laid down in 
Article 47 of the Charter, and in the light of the obligation on the Member States 
under Article 19 TEU to provide the remedies necessary to ensure effective 
judicial protection in the fields covered by EU law. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-118/23 
 
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19 In implementing the directive with regard to the right to appeal against decisions 
within the meaning of Article 85(2) of Directive 2014/59/EU, the national 
legislature provided, in Article 103(5) of the BGF Law, that, in addition to the 
supervisory board of the entity undergoing restructuring (in the main proceedings, 
the Supervisory Board of GNB), anyone whose legal interest has been infringed 
by a BGF decision is entitled to bring an action before an administrative court. As 
a result, the BGF decision was contested not only by the Supervisory Board of 
GNB (the first action brought), but also by over 7 000 entities which, invoking 
their legal interest, also brought such actions. Those entities are mainly the owners 
of the written down GNB shares or bonds issued by the Bank, creditors of GNB, 
or parties to loans and credit agreements concluded with it denominated in foreign 
currency or indexed to a foreign currency exchange rate. 
20 The referring court has doubts as to whether it is reasonable to assume that the 
provision of effective legal protection for those persons can be effected only by 
them challenging the BGF decision, in other words, whether an individual 
challenge to the BGF decision before an administrative court by those persons is a 
condition sine qua non for obtaining protection of rights derived from EU law. 
21 Under the BGF Law, the decision to initiate compulsory restructuring is final and 
subject to immediate enforcement (Article 11(4)(1) of the BGF Law, in 
conjunction with paragraph (8) thereof) and Article 61(2) and (3) of the Code of 
procedure before the administrative courts incorporating suspension by the 
administrative court of enforcement of the appealed decision after an action has 
been brought before that court does not apply to it. In addition, the administrative 
court, when ruling on an action against such a decision, may not revoke it, but 
merely declare that it was taken in breach of the law (Article 105(2) of the BGF 
Law) or – if it finds that it is not defective – dismiss the action pursuant to 
Article 151 of the Code of procedure before the administrative courts. 
22 Since the enforceability of the decision is not suspended by the bringing of an 
action before an administrative court by the entitled persons, and the possible of 
upholding the action likewise does not revoke the decision, the persons concerned 
were consequently granted the right to pursue claims of a compensatory nature. 
However, it is not always the case that the assertion of such claims is conditional 
on the prior confirmation by the administrative court that the BGF decision was 
taken in breach of the law. In that respect, it is worth noting the provision 
contained in Article 242 of the BGF Law, which provides for the raising of 
supplementary claim against the BGF by creditors (including bondholders) or 
owners (Article 2(81) of the BGF Law; Article 2(1)(62) of Directive 2014/59/EU) 
where those claims have been settled as a result of compulsory restructuring at a 
lower amount than they would have as a result of bankruptcy proceedings. As 
emphasised in academic legal writings, in the event that the Fund fails to settle the 
abovementioned claims, the creditor has, under the general rules, the possibility of 
pursuing his or her rights through the courts. It is assumed that this is not an 
administrative but a civil matter. For the purposes of the claim provided for in 
those provisions, it is not required that an administrative court previously declare 
GETIN HOLDING 
 
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that the BGF decision was taken in breach of law, but that there is a situation such 
as that set out in Article 242(1) of the BGF Law, which creates the right to make 
such a supplementary claim, namely settlement as a result of compulsory 
restructuring in an lower amount than would have occurred in bankruptcy 
proceedings. It is not excluded that in cases before an ordinary court some legal 
significance can be attached to the judgment of the administrative court declaring 
that the BGF decision was taken in breach of the law, where they are determined 
by an ordinary court. 
23 A separate category of claims which may be encountered are those referred to in 
Article 417 of the Civil Code, in conjunction with Article 4171(2) thereof. In that 
case, the issue is the public authority’s liability for damages, that is to say 
compensation for damage caused by taking a final decision, the unlawfulness of 
which has been established in relevant proceedings. In view of the above, the 
required basis for the claim for damages (precedent) is the abovementioned final 
judgment of the administrative court upholding the action, that is to say a 
judgment finding that the BGF decision was taken in breach of the law. That 
judgment is given as a result of effectively initiated administrative court 
proceedings and the ruling contained therein will be the result of the 
administrative court’s review of the lawfulness of the BGF decision, irrespective 
of which of the entities entitled to lodge an action brought it before that court. For 
that reason too, reliance in proceedings for damages on that precedent is also 
possible where the person claiming damages has not brought an action personally. 
24 When reviewing the lawfulness of the decision, the court applies the national 
procedural rules, including, inter alia, Article 134 Code of procedure before the 
administrative courts, under which the court is to rule within the limits of the case 
in question without, however, being bound by the pleas in law and conclusions of 
the action and the legal basis relied on. ‘Not being bound’ means that the court 
examines the lawfulness (Article 1(2) of the Code of procedure before the 
administrative court’) of the contested act in full. 
25 It should be borne in mind that a final judgment of an administrative court given 
in a case with a scope ratione materiae and personae thus defined is characterised 
by broad legal effectiveness, both with regard to the ruling contained therein and 
the grounds for it (Articles 170 and 171 of the Code of procedure before the 
administrative courts). Such a judgment is binding not only on the parties and the 
administrative court which gave it, but also other courts (including ordinary 
courts), other State authorities, and other persons (effectiveness erga omnes). 
26 However, as stated earlier, the judgment given in the case, regardless of whether 
the referring court considers the BGF decision to be lawful or rules that it was 
taken in breach of the law, will not have the effect of altering the conclusion of the 
administrative case. A final judgment of an administrative court finding that the 
BGF took a decision in breach of the law does not result in the decision being 
revoked, and therefore, in this instance, the case will not be reconsidered by the 
authority and a different conclusion of the administrative case will not be possible. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-118/23 
 
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Nor does a final judgment with such a ruling affect the validity of the legal acts 
performed pursuant to the decision. Consequently, any final judgment of an 
administrative court finding that a decision of the BGF was taken in breach of the 
law will not have for the addressees of that decision, or other persons concerned 
by the ruling on account of their legal interest, the effect of directly shaping their 
rights and obligations in the sense that it does enable them to be defined 
differently in the contested BGF decision. 
27 The authority of res judicata attributed to a final judgment of an administrative 
court and the extent to which that judgment is binding means that the ruling 
contained therein and the grounds for it can therefore also be relied on by persons 
who have not brought an action against the BGF decision. They need not bring 
individual actions against the BGF decision in this case where the Supervisory 
Board of GNB effectively bringing an action enables the court to review the 
lawfulness of the contested decision, and a final judgment given in that case will 
also have effect in respect to the courts before which those persons assert their 
rights. 
28 The question arises, however, whether the Polish legislature legitimately assumed 
that conferring the right to bring an action against a decision on any person whose 
legal interest has been infringed by the decision is necessary in order to satisfy the 
requirements arising from the above provisions. The legal arrangement adopted in 
the BGF Law means that the group of entities able to challenge such a decision is 
broad, as is confirmed by the abovementioned judgments of the administrative 
courts. This, in turn, means – as can be seen in this case – that exercise of the right 
to access to the courts may be made significantly more difficult for those persons 
and will not be effected in an expeditious judicial review. However, those persons 
obtain actual protection of their rights in court proceedings other than those 
related to an action against the BGF decision before the administrative court and, 
on the basis of those proceedings, can obtain such protection in so far as they are 
able to do so in connection with the BGF decision. 
29 Consequently, in the view of the referring court, raising the abovementioned 
claims arising from the BGF decision and based on the above provisions of 
Directive 2014/59/EU and national law makes it possible to protect the rights of 
the entities whose legal interest is affected by the decision. Moreover, they are not 
deprived of the right to enjoy such protection where they themselves have not 
brought an action before the administrative court and the referring court reviews 
the contested BGF decision in the action brought by the Supervisory Board of 
GNB. Therefore, it appears that the system established in Polish law for these 
entities to exercise their rights infringed by the BGF decision before the common 
courts, and also the rules of procedure before the administrative court, may be 
regarded as appropriate and sufficient legal means of guaranteeing effective 
protection of the rights of those entities and the referring court’s consideration and 
determination of the case initiated by the action brought by the Supervisory Board 
of GNB against the BGF decision, without their participation in those court 
proceedings, will not infringe the right of those entities to effective judicial 
GETIN HOLDING 
 
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protection for the purposes of Article 85(3) of Directive 2014/59/EU, in 
conjunction with Article 47 of the Charter and the second subparagraph of 
Article 19(1) TEU. 
30 An answer in the negative to the first question referred makes it necessary for the 
referring court to consider whether, in order to meet the legitimate expectation 
that the case will be considered expeditiously, it is possible, if not necessary, to 
disapply the rules of procedure which do not allow that objective to be achieved. 
31 The referring court considers that, in view of the number of actions and the need 
to afford applicants effective judicial protection and expeditious review of the 
decision, it may have to disapply the rule of national administrative procedure 
which requires that all actions against the same decision to be heard jointly 
(Article 111(1) of the Code of procedure before the administrative courts). 
32 Under Article 111(1) of the Code of procedure before the administrative courts, 
the court is to order that a number of separate cases pending before it be joined for 
the purpose of their being heard or determined jointly, if they could have been 
covered by a single application. The aim here is to ensure that diametrically 
opposite rulings are not given in an identical factual and legal situation. 
Proceedings pursuant that provision makes it possible to avoid contradictory 
rulings. While each of the administrative court cases initiated by actions against 
the BGF decision could become the subject of a separate ruling by that court, it 
could not be ruled out that the judges hearing them, within the framework of their 
independence, could also give different rulings depending on the outcome of their 
review of the lawfulness of such a decision. Failure to fulfil the obligation 
compulsorily to join administrative court cases is a condition for invalidity, where, 
in a case with an identical subject matter, the court conducts separate 
administrative court proceedings, or after the administrative court case has been 
finally resolved. 
33 However, joining all the actions against the BGF decision thus has certain 
procedural consequences which are, in the view of the referring court, relevant 
from the point of view of satisfying the requirement relating to expeditious review 
laid down in Article 85(3) of Directive 2014/59/EU. In the view of the referring 
court, this may make it difficult, if not impossible, to carry out that review within 
a reasonable, foreseeable period of time. 
34 In addition, such a procedure for hearing cases will also be significantly onerous 
for all applicants, if only because each pleading of each party to the joined cases 
will have to be submitted in an appropriate number of copies for all parties to the 
proceedings before the administrative court and sent (either directly or through the 
court) to several thousand other applicants and parties to the proceedings. 
35 For these reasons, the referring court expressed its doubts as to whether 
compliance with the abovementioned requirement relating to procedure before 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-118/23 
 
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Polish administrative courts would serve to ensure effective judicial protection for 
all applicants. 
36 In the view of the referring court, the right to effective legal protection cannot be 
limited merely to ensuring that it is possible to bring an action. This is 
undoubtedly an essential element of that right, but the issue is also the applicant’s 
actual access to justice by obtaining a court ruling on his or her case within a 
reasonable time, which is contingent on the expeditious conduct of judicial 
proceedings. 
37 However, in the present case, the manner in which the rights conferred on those 
persons are exercised may mean in practice that the exercise of the rights 
conferred on them by the EU legal order can be regarded, with the application of 
the procedural requirement relating to Polish administrative courts that all actions 
against a BGF decision be heard jointly, as rendered impossible or excessively 
difficult (principle of effectiveness) (see judgments of the Court of Justice of: 
13 March 2007, Unibet, C-432/05, EU:C:2007:163, paragraph 43; 21 November 
2019, Deutsche Lufthansa AG, C-379/18, EU:C:[2019:1000], paragraph 62; 
8 September 2011 in Joined Cases C-89/10 and 96/10 Q-Beef NV v Belgische 
Staat and Frans Bosschaert v Belgische Staat and Others, EU:C:2011:555, 
paragraph 36). 
38 It is for the national courts to interpret the procedural rules governing actions 
brought before them, in such a way as to enable those rules, wherever possible, to 
be implemented in such a manner as to contribute to the attainment of the 
objective of ensuring effective judicial protection of an individual’s rights under 
EU law (see judgment of the Court of Justice of 21 November 2019, Deutsche 
Lufthtansa AG v Land Berlin, C-379/18, paragraph 63, EU:C:2019:1000; to that 
effect, judgment of the Court of Justice of 13 March 2007, Unibet, C-432/05, 
EU:C:2007:163, paragraph 44). Therefore, the application of a Member State’s 
procedural rules may, and sometimes should, be modified for the purpose of 
ensuring effective judicial protection in so far as it cannot be obtained by applying 
those rules. Taking account of the procedural rules governing the consideration of 
an action and the effectiveness of a final judgment delivered in such a case, 
referred to in the earlier part of the grounds for the order, disapplication of 
Article 111(1) of the Code of procedure before the administrative courts will 
observe the principle of the effective exercise of rights guaranteed by EU law. 
39 For the foregoing reasons, the referring court considers that disapplying the 
procedural requirement that all actions brought against the BGF decision be heard 
jointly in a single administrative court proceeding will, in essence, allow the 
requirement relating to an expeditious review of the lawfulness of that decision 
(Article 85(3) of Directive 2014/59/EU) to be satisfied. In such a case the court 
would rule on the first of the actions since the fact that it has been brought 
effectively is sufficient for the court to review of the lawfulness of the contested 
BGF decision. The review of the decision could therefore be carried out without 
the need for lengthy joint processing of all the actions in order to bring about, at a 
GETIN HOLDING 
 
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single point in time, a procedural readiness to determine all the joined cases in a 
single judgment. The only essential requirement to be satisfied in such a case is 
that in giving subsequent rulings in all the other cases account should be taken of 
the outcome of the review already carried out, that is to say the ruling of the 
judgment given in the case in which the court reviewed the lawfulness of the BGF 
decision. 
40 The answer to the second question referred will determine the way in which the 
referring court will process the actions brought against the BGF decision. At the 
same time, it will make it possible to dispel the court’s doubts as to whether, in the 
abovementioned factual and legal circumstances, the referring court’s decision not 
to hear and determine those cases jointly, and give a ruling as a result of hearing 
the action brought by the Supervisory Board of GNB, satisfies the requirement 
relating to expeditious review laid down in Article 85(3) of Directive 2014/59/EU 
and fails to provide effective legal protection for the purposes of Article 47 of the 
Charter and the second subparagraph of Article 19(1) TEU. 
41 By its third question, the referring court seeks to ascertain whether Article 3(3) of 
Directive 2014/59/EU permits the Member State, to ensure operational 
independence and avoid conflicts of interest, not to separate structurally the 
functions of the resolution authority from its other functions as statutory guarantor 
of bank deposits or bank insolvency administrator (temporary administrator) 
appointed pursuant a decision of the competent national authority for supervision 
for the purposes of Regulation (EU) No 575/2013 and Directive 2013/36/EU. 
42 Under Article 3(3) of Directive 2014/59/EU, Member States are required to put in 
place adequate structural arrangements to ensure operational independence and 
avoid conflicts of interest between the functions of supervision pursuant to 
Regulation (EU) No 575/2013 and Directive 2013/36/EU or the other functions of 
the relevant authority and the functions of resolution authorities. Under that 
provision, there is to be operational independence between the resolution function 
and the supervisory or other functions of the relevant authority. The staff involved 
in carrying out the functions of the resolution authority are to be structurally 
separated from, and subject to, separate reporting lines from the staff involved in 
carrying out the tasks pursuant to Regulation (EU) No 575/2013 and Directive 
2013/36/EU or with regard to the other functions of the relevant authority. To that 
end, the Member States or the resolution authority are also to adopt and make 
public any internal rules including rules regarding professional secrecy and 
information exchanges between the different functional areas. 
43 A single resolution authority (the BGF) has been designated in the Polish legal 
system. That authority is not competent for supervision for the purposes of 
Regulation (EU) 575/2013 and Directive 2013/36/EU. Supervision of the financial 
market is carried out by the KNF, whose legal status, competence and powers are 
laid down in the Law on supervision of the financial market (Article 1(2)(1) 
thereof). It is the KNF that is the competent authority for supervision within the 
meaning of Article 3(3) of Directive 2014/59/EU (Article 3a of the Law on 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-118/23 
 
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supervision of the financial market, in conjunction with Articles 4(1)(40) and 2(1) 
of Regulation (EU) 575/2013). At the same time, it should be recalled that both 
the Chair of the KNF and the President of the BGF Management Board are 
members of the Financial Stability Committee, which is the competent authority 
for macroprudential supervision and crisis management – the authority designated 
for the purposes of Article 458(1) of Regulation (EU) 575/2013 (Article 7(1)(3) 
and (4) of the Law on supervision of the financial market, in conjunction with 
Articles 2 and 3 thereof). 
44 The BGF and the KNF are two structurally separate, independent authorities. In 
essence, therefore, under national law there is no cumulation of the supervisory 
and restructuring functions within a single authority, as provided for in the second 
sentence of Article 3(3) of Directive 2014/59/EU. 
45 On the other hand, the resolution authority (the BGF) is entrusted with the duties 
of deposit guarantor (Article 5(1)(1), (2) and (6) of the BGF Law), and also the 
possibility of performing the function of the bank’s insolvency administrator 
(Article 5(6) of the BGF Law) appointed pursuant to a decision of the supervisory 
authority (the KNF) under early intervention measures, that is to say a temporary 
administrator within the meaning of Article 29 of Directive 2014/59/EU. The 
scope of the BGF’s tasks as the bank’s insolvency administrator is determined by 
the supervisory authority in the decision on its appointment – in this case the KNF 
decision of 22 December 2021. Pursuant to that decision, the BGF was entrusted – 
in carrying out its functions as the insolvency administrator for GNB – with tasks 
relating to reporting, monitoring GNB’s operations, and the exercise of all the 
powers of insolvency administrator arising from the law, including objecting to 
resolutions and decisions of the bank’s management and supervisory boards and 
challenging a resolution of the general meeting of shareholders (Article 144(3) 
and (4) of the Law on banking). Therefore, under its supervisory powers, the KNF 
has the ability to monitor, on an ongoing basis, the remedial actions at the bank 
taken to improve its financial situation and implements them to a certain extent 
through supervisory and support actions taken by the appointed insolvency 
administrator (BGF). 
46 In the circumstances of the case in the main proceedings, doubt has arisen as to 
whether Article 3(3) of Directive 2014/59/EU relied on permits non-compliance 
with the obligations arising therefrom in relation to the functions of resolution 
authority and the functions of statutory guarantor of bank deposits and bank 
insolvency administrator (temporary administrator appointed as part of early 
intervention) performed by the BGF. The doubt amounts essentially to whether 
the function of statutory guarantor of bank deposits and the function of bank 
insolvency administrator are ‘other functions’ or ‘functions of supervision’ within 
the meaning of Article 3(3) of the directive, which should not be combined with 
the functions of the resolution authority. The answer to this question will then 
make it possible to establish whether it was for the Member State to put in place 
the appropriate structural arrangements required by the provision of the directive 
where those functions are combined in the Fund, or whether non-compliance with 
GETIN HOLDING 
 
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that requirement relating to structural separation is not required where some or all 
of those functions are combined in that authority. 
47 In the actions against the BGF decision brought before the national court, the view 
was expressed that Article 3(3) of Directive 2014/59/EU precludes the functions 
of the resolution authority from being performed by an authority which, at the 
time of the proceedings to initiate compulsory restructuring and at the time of the 
decision to initiate it, is the insolvency administrator of the restructured entity 
(GNB) and simultaneously the statutory deposit guarantor, where no structural 
arrangements have been put in place to ensure the operational independence of 
those functions and avoid conflicts of interest. 
48 In the view of the referring court, even though the function of insolvency 
administrator (temporary administrator) cannot be classified strictly as a function 
of supervision since that function is performed by the competent authority (KNF), 
it is appointed under Polish law in a decision taken by that supervisory authority 
and performs the tasks entrusted to it by that authority. For those reasons, it cannot 
be ruled out a priori that the performance of that function by the BGF did not 
require that appropriate arrangements be put in place to ensure operational 
independence and avoid conflicts of interest. 
49 It should be noted that the fundamental purpose of appointing an insolvency 
administrator for GNB was to improve the financial situation of that bank. The 
tasks of insolvency administrator entrusted to the BGF were to restore capital 
ratios to levels meeting regulatory requirements, rebuild the bank’s sustainable 
profitability, improve asset quality, and ensure the effectiveness of the banks’ 
recovery plan being implemented or updated. At the same time, the BGF, as the 
resolution authority, is obliged to assess objectively the bank’s situation and 
determine, on that basis, whether the conditions for initiating compulsory 
restructuring in relation to GNB, as set out in Article 101(7) of the BGF Law, 
have been met. Consequently, it remains within the Fund’s discretion at the stage 
of planning compulsory restructuring and the decision to initiate it, inter alia, to 
assess whether there are reasonable grounds for assuming that supervisory actions, 
including early intervention measures, will allow the threat of bankruptcy of the 
national entity to be removed. As part of that assessment, the BGF will therefore 
not avoid reviewing acts of insolvency administrator (its own acts or omissions) to 
establish whether they allow that effect to be produced. On the other hand, the 
abovementioned assessment of the conditions for initiating a compulsory 
intervention, should, presumably, be carried out in conditions of operational 
independence and avoidance of conflicts of interest, in order to exclude the 
initiation of compulsory restructuring where the assessment of the effectiveness of 
supervisory actions, including the early intervention measure applied (in the form 
of the appointed bank insolvency administrator) is carried out by the entity 
entrusted with carrying out those actions to a specific degree. 
50 As regards the BGF’s function as guarantor of bank deposits, it is not a function of 
supervision. Instead, the question arises whether it can be considered an ‘other 
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24  
function’ within the meaning of Article 3(3) of Directive 2014/59/EU. The 
function of a deposit guarantor includes the tasks of raising funds to cover 
guarantees and disbursing them. The priority in that case is to ensure the proper 
functioning of the guarantee protection scheme, which entails a need to ensure 
that adequate financial resources are available to cover the amounts of liabilities 
from the Fund’s resources. 
51 The Fund, as the resolution authority, examines, in its analysis of the objectives of 
compulsory restructuring, the effects of subjecting the bank to bankruptcy 
proceedings and compulsory restructuring and the impact of winding the bank up 
in standard bankruptcy proceedings and its compulsory restructuring on the 
maintenance of financial stability. In that analysis, it assesses the degree of 
involvement of the BGF’s funds accumulated in the bank guarantee fund in the 
event that a bankruptcy scenario is adopted. In that respect, it must be borne in 
mind that it is the BGF that is at the same time the administrator of the bank 
guarantee fund and lays down the rules under which the funds are accumulated 
therein, hence it cannot be excluded that the Fund’s desire to preserve those funds 
may, to a certain extent, determine the above assessment. Thus, combining the 
restructuring function with the deposit guarantee function – in the absence of 
structural separateness and organisational independence of those functions – 
appears to entail a risk that efforts will be taken to ensure that actions in relation to 
a bank threatened by bankruptcy are taken by the BGF on the assumption of the 
least possible involvement of the funds at its disposal (the bank guarantee fund), 
which would have to be activated to disburse guaranteed funds, for example in the 
event the bank becoming bankrupt. 
52 The referring court considers that an answer to the third question is necessary to 
determine the case before it. If a structural separation of the functions in question 
is required, the national court will examine whether the Member State’s 
obligations arising from Article 3(3) of the directive were satisfied in respect of 
those functions. If, on the other hand, those functions are not covered by the 
obligation to put in place guarantees under Article 3(3) of the directive, that issue 
will not be verified in the main proceedings. In that case, the national court will 
consider the pleas in law based on a different legal assessment to be unfounded. 
53 The doubt as to the interpretation of Article 3(3) of Directive 2014/59/EU also 
relate to the nature of the requirement for a Member State to put into place the 
structural guarantees referred to in that provision. There is no doubt as to the 
effect to be achieved by the application of that provision, that is to say the 
achievement of a state of operational independence and the avoidance of conflicts 
of interest between the functions of the resolution authority and other functions. 
Against the background of the facts of the case, doubt arose as to whether, in view 
of the failure to ensure, or the failure to ensure properly, structural separation 
between the functions performed by the BGF, including with regard to the 
structural separation of reporting lines and the requirement to adopt and make 
public relevant internal rules, it is possible, in the specific facts of the case, to hold 
GETIN HOLDING 
 
25 
that operational independence was maintained and there was no conflict of 
interest. 
54 In Article 3(3) of Directive 2014/59/EU, the EU legislature set out the objective of 
the rules, which is to ensure operational independence and avoid conflicts of 
interest between the functions of supervision under Regulation (EU) 575/2013 and 
Directive 2013/36/EU or other functions of the relevant authority and the 
functions of resolution authorities. That objective is to be achieved inter alia by: 
ensuring operational independence, structurally separate reporting lines for the 
staff involved in carrying out the functions of the resolution authority from those 
involved in carrying out supervisory or other functions, and adopting and making 
public any necessary relevant internal rules, including rules regarding professional 
secrecy and information exchanges between different functional areas. 
55 The referring court noted that already at the travaux préparatoires stage of the 
BGF Law deficiencies had been pointed out which demonstrated the incorrect 
implementation of the directive in that regard. This concerned the fact that the 
draft provisions on the organisation and rules of operation of the BGF in no way 
ensure the operational or structural independence of the Fund’s individual 
functions from each other, including the functions of the compulsory restructuring 
authority, deposit guarantee functions and other functions related to ensuring the 
stability of the national financial system. It was therefore argued that the failure to 
ensure such independence of the individual functions of the BGF infringes 
Article 3(3) of the directive. The shortcomings in that respect were not removed. 
56 The BGF Law governs the structure and tasks of the BGF. Under Article 6(1) of 
that law, the bodies of the Fund are to be the Fund Council and the Fund 
Management Board. 
57 The tasks of the Fund Council include supervising the operations of the Fund’s 
Management Board; adopting the Fund’s business plan and financial plan; 
approving the Fund’s annual financial statement drawn up by the Fund’s 
Management Board and the annual report on the Fund’s operations and submitting 
them to the Council of Ministers; approving quarterly reports on the Fund’s 
operations drawn up by the Fund’s Management Board and submitting them to the 
minister responsible for financial institutions; taking decisions, at the request of 
the Fund’s Management Board, to transfer resources between the Fund’s own 
funds; taking decisions, at the request of the Fund’s Management Board of the 
Fund, to allocate, to finance compulsory restructuring, an amount greater than 
50% of the target level of funds of the deposit guarantee scheme in banks or of the 
target level of funds of deposit guarantee scheme in credit unions; reducing, at the 
request of the Fund’s Management Board, the target level of funds in the bank 
deposit guarantee scheme; determining, at the request of the Fund’s Management 
Board, the amount of obligatory contributions to the guarantee fund for banks and 
the fund for compulsory restructuring of banks, the amount of extraordinary 
contributions to the guarantee fund for banks and dates of the payment thereof and 
the detailed internal rules of the conduct of compulsory restructuring by the Fund; 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-118/23 
 
26  
and also adopting, at the request of the Fund’s Management Board, regulations 
defining the organisation of work and rules and procedures of the Fund’s 
Management Board (Article 8(1)(1) to (4) and (7) to (9)(a), (b) and (e), and (13) 
of the BGF Law). 
58 The Fund Board is to manage the Fund’s operations and represent it externally. 
The tasks of the Fund Board are also to include drawing up the Fund’s draft 
business plan and financial plan, managing the Fund’s assets, subject to the 
powers of the Fund Council, submitting quarterly and annual management reports 
to the Fund Council, submitting proposals to the Fund Council on matters referred 
to in Article 8(1)(5) to (10) and (13), and performing other tasks of the Fund 
which are not reserved to the Fund Council, including the tasks arising from the 
appointment of the BGF as insolvency administrator within the meaning of 
Article 144(1) of the Law on banking (Article 11(1) and (2) of the BGF Law and 
Article 5(6) thereof, in conjunction with Article 5(12) of the Rules of Procedure of 
the Management Board of the Bank Guarantee Fund). The Fund’s Management 
Board, in consultation with the Fund Council, is also to lay down the 
organisational rules of the Fund’s Office (Article 13 of the BGF Law). The Fund’s 
Management Board is, in matters within its competence, to adopt resolutions by a 
majority of votes in the presence of at least half of the persons comprising it. In 
the event of a tie, the President of the Fund’s Management Board is to have the 
casting vote (Article 11(3) of the BGF Law). The manner in which the Fund’s 
Management Board adopts resolutions are not to vary depending on what the 
subject matter of such a resolution is and within which of the functions performed 
by the BGF it is adopted. Decisions to initiate compulsory restructuring, write 
down or convert capital instruments or eligible liabilities, apply compulsory 
restructuring instruments, and appoint and dismiss an administrator or a deputy 
administrator are to be taken by the Fund’s Management Board in the form of a 
resolution (Article 11(4)(1) to (2), (4) and (5) of the BGF Law). Such decisions 
are to be signed on behalf of the Fund’s Management Board by the President of 
the Fund’s Management Board or his or her Deputy (Article 11(9) of the BGF 
Law). 
59 The BGF Law does not, therefore, introduce systemic arrangements to ensure a 
structural separation between the function of the resolution authority and other 
functions of the BGF. The power of the minister competent for financial 
institutions, contained in Article 3(4) of the BGF Law, to adopt the Fund’s articles 
of association defining in detail its tasks, organisation and rules for the creation 
and use of its own funds does not require the introduction of such arrangements in 
an implementing act. 
60 The Regulation of the Minister for Development and Finance of 25 January 2017 
on the adoption of the articles of association of the Bank Guarantee Fund (Dz. U., 
item 203, as amended), issued on that basis, as well as acts of an internal nature 
submitted to the national court in the main proceedings, show that the tasks 
relating to compulsory restructuring, the function of insolvency administrator and 
the function of deposit guarantee are entrusted to separate organisational units 
GETIN HOLDING 
 
27 
within the structure of the BGF (separate departments of the BGF Office), whose 
work is supervised by the named members of the Management Board. However, 
those rules do not eliminate the points of contact between all three functions, for 
example at the level of cooperation of the relevant organisational units and their 
staff, such as in the Legal Department of the BGF Office, and also at the level of 
the BGF Management Board, which is expressed in the taking of decisions within 
the framework of all the abovementioned functions by the same persons 
performing managerial or advisory functions in the BGF. Nor is it apparent from 
the legal acts referred to that the staff involved in those functions are subject to 
separate reporting lines and structurally separated from the reporting lines specific 
to other functions, and that any rules have been laid down on the exchange of 
information between the different areas of the functioning of the authority 
concerned. Moreover, it does not appear from the information available to the 
national court that the internal regulations referred to – other than the BGF articles 
of association – have been made public. 
61 Chapter VI of the BGF Law, entitled ‘Obligations to provide, exchange and 
protect information’, contains rules concerning external relations regarding the 
exchange of information between the BGF and other entities, including the 
provision of information by the BGF to certain entities and the obtaining of 
information from those entities, including the KNF. The provisions of that chapter 
do not govern the internal circulation of information within the structure of the 
BGF and do not lay down rules on the exchange of information between different 
areas of the BGF’s operation. 
62 Responding to the pleas in law alleging a lack of structural independence, the 
BGF pointed out that structural separation and operational independence within 
the meaning of Article 3(3) of Directive 2014/59/EU had been maintained in the 
case at issue in the main proceedings. However, it did not support that contention 
with any substantive arguments or documents. 
63 The referring court’s findings concerning the lack of complete national rules in 
that regard and the practice of the national resolution authority justify the fourth 
question referred for a preliminary ruling. The answer obtained will enable that 
court to judge whether the requisite effect has been achieved despite the failure of 
the Member State to satisfy the requirement that it put in place adequate structural 
arrangements to ensure operational independence and avoid conflicts of interest.