EN ECB-PUBLIC  
 
OPINION OF THE EUROPEAN CENTRAL BANK 
of 7 May 2021  
on the provision of certain loans and the application of minimu m reserve requirements 
by Narodowy Bank Polski 
(CON/2021/17) 
 
Introduction and legal basis  
On 9 April 2021 the European Central Bank (ECB) received a requ est from the Polish Ministry of Finance 
for an opinion on certain amendments contained in a draft law a mending the Law on Narodowy Bank Polski, 
the Law on the Bank Guarantee Fund, Deposit Guarantee Scheme an d Resolution, the Law on banking 
and certain other laws (hereina fter the ‘draft amendments’). 
The ECB’s competence to deliver an opinion is based on Articles  127(4) and 282(5) of the Treaty on the 
Functioning of the European Union and the third and sixth inden ts of Article 2(1), and Article 2(2) of Council 
Decision 98/415/EC1, as the draft amendments relate  to Narodowy Bank Polski (NBP),  rules applicable to 
financial institutions insofar as they materially influence the  stability of financial institutions and markets, 
and the instruments of monetary policy of a Member State which has not adopted the eur o. In accordance 
with the first sentence of Article 17.5 of the Rules of Procedu re of the European Central Bank, the 
Governing Council has adopted this opinion. 
 
1. Purpose of the draft amendments 1.1 The purpose of the draft amendments is to facilitate certai n lending operations of NBP, in particular 
in the context of NBP’s role as lender-of-last-resort in the Po lish financial system.  
1.2 As noted in the consultati on request, under the current pro visions of the Law on the Bank 
Guarantee Fund, Deposit Guarantee Fund and Resolution
2 (hereinafter the ‘Law on the Fund’), the 
Bank Guarantee Fund (hereinafter the ‘Fund’), acting in its cap acity as resolution authority, may 
amend the terms of agreements to which an entity under resoluti on is a party. The draft 
amendments explicitly exclude the possibility of the Fund amend ing (a) agreements related to 
granting the State Treasury guara ntee for the repayment of an N BP refinancing loan and (b) 
agreements concluded with NBP, t he central banks of other Membe r States or the ECB. 
1.3 Under the current provision s of Polish law, the general rul es applicable to the transfer of mortgage 
receivables or receivables secured with registered pledges requ ire in any case that a relevant entry 
 
1  Council Decision 98/415/EC of 29 June 1998 on the consultation  of the European Central Bank by national 
authorities regarding draft legisl ative provisions (OJ L 189, 3 .7.1998, p. 42). 
2  Ustawa z dnia 10 czerwca 2016 r. o Bankowym Funduszu Gwarancy jnym, systemie gwarantowania depozytów oraz 
przymusowej restrukturyzacji ( Dziennik Ustaw z 2016, poz. 996 ). 
ECB-PUBLIC  
2 in the Land and Mortgage Register is made by the registry court  for such a transfer to be effective3. 
The draft amendments introduce an exception to this general rul e in the case of (a) refinancing 
loans granted by NBP to banks in Polish zloty in order to reple nish their money holdings or 
implement their recovery plans,(b) short-term loans granted by NBP, at its discretion, to the Fund 
for financing the Fund’s deposit guarantee function, if a threa t to financial stability arises and in 
view of the Fund’s urgent needs an d (c) short-term loans grante d by NBP, at its discretion, to the 
National Association of Cooperative Savings and Credit Unions i n the event of a threat to the 
liquidity of credit unions. In particular, the draft amendments  clarify that in the case of securing 
these loans by the transfer of mortgage receivables or receivab les secured with registered pledges, 
the mortgages or registered pledges shall devolve to NBP from t he date of the granting of a 
refinancing loan or a short-term loan. A similar solution is in troduced in respect of the collateral 
securing guarantees provided by the State Treasury in respect o f NBP’s refinancing loans. As noted 
in the consultation request, without these amendments the colla teral may not be effectively 
established before the expiry of the term for which a loan is g ranted, which may hinder NBP’s 
performance of its statutory tas ks, including the capacity of b anks to obtain a refinancing loan in a 
situation posing a threat to t he stability of the financial sys tem.  
1.4 The draft amendments amend the banking secrecy and public p rocurement regimes in order to 
enable NBP to outsource to Bank Gospodarstwa Krajowego  (BGK), a Polish State development 
bank4, some of the tasks related to granting refinancing loans or sh ort-term loans, including 
securing and servicing of such loans. As noted in the consultat ion request, there are organisational 
reasons for entrusting BGK with these tasks, in particular when  it is necessary to process a large 
number of receivables. Undertaking these additional activities could require NBP to increase its 
resources on an ad hoc basis which, due to the limited time whe n such activities would be 
performed, could prove inefficient for NBP. By contrast, BGK is  operationally prepared for these 
kinds of activities. 
1.5 Finally, the draft amendments introduce the possibility for  the NBP Management Board to exempt 
an entity under resolution or a bridge institution from the obl igation to maintain minimum reserve 
requirements during the period of resolution. 
 
2. Provision of loans by NBP  
2.1 The ECB welcomes that the draft amendments explicitly exclu de the possibility for the Fund to 
amend agreements related to the gr anting of the State Treasury guarantee for the repayment of a 
refinancing loan and agreements concluded with NBP, the central  banks of other Member States 
or the ECB. The exercise of such resolution powers in respect o f central bank liquidity operations 
would be inappropriate. 
 
3  See Article 79(1) of the Law of 6 July 1982 on the Land and Mor tgage Registers and on Mortgage (Ustawa z dnia 6 
lipca 1982 r. o księgach wieczystych i hipotece ( Dziennik Ustaw z 1982 r., nr 19, poz. 147 )). (and Article 17(1) of the 
Law of 6 December 1996 on the Registered Pledge and the Pledge Registry (.Ustawa z dnia 6 grudnia 1996 r. o 
zastawie rejestrowym i rejestrze zastawów ( Dziennik Ustaw z 1996 r., nr 149, poz. 703 )). 
4  For the description of the BKG status and tasks see Opinion CON /2010/70. All ECB opinions are published on EUR-
Lex. 
ECB-PUBLIC  
3 2.2 The ECB welcomes that the draft amendments seek to facilita te the provision of adequate collateral 
for NBP’s refinancing loans. In this respect, the existing admi nistrative and procedural issues 
related to land registry court proceedings can hinder the proce ss of NBP mobilising collateral in the 
form of mortgage receivables or receivables secured by register ed pledges. The draft amendments 
will enhance the c apacity of credit insti tutions to obtain liqu idity support when needed, including in 
a situation posing a threat to  the stability of the financial s ystem. 
2.3 Regarding NBP’s proposed outsourcing of tasks related to th e granting, servicing and securing of 
refinancing loans or short-term loans to the BGK, the ECB under stands that these tasks will be 
limited to issues of an administrative and technical nature, su ch as the processing of a large number 
of mortgage loans in case of a foreclosure of collateral securi ty provided to NBP.  
 
3. NBP minimum reserve requirements  
3.1 The ECB has noted in earlier opinions5 that Member States whose currency is not the euro retain 
their powers in the field of monet ary policy according to natio nal law6. As and when the euro is 
introduced, Poland’s monetary policy will need to be consistent  with the Eurosystem’s operational 
framework and credit instituti ons should therefore be familiar with the requirements that would apply 
to them once the single monetary policy is implemented in Polan d. 
3.2 Regarding the envisaged discretionary exemption from minimu m reserves requirements for an 
entity under resolution or a bri dge institution during the reso lution period, the ECB legal framework7 
provides that the ECB may grant exemptions from minimum reserve  requirements upon request by 
the relevant NCB, where an institution is subject to a reorgani sation measure pursuant to Directive 
2001/24/EC of the European Parliament and of the Council8. The definition of a reorganisation 
measure provided for in Article 2 of Directive 2001/24/EC clari fies that reorganisation measures 
include, inter alia, the application of the resolution tools an d the exercise of resolution powers 
provided for in Direc tive 2014/59/EU of the European Parliament  and of the Council9.  
3.3 In view of the above, the ECB notes that the provisions of the draft law allowing NBP, at its 
discretion, to exempt entities under resolution and bridge inst itutions from minimum reserve 
requirements are, as such, in line with the Eurosystem framewor k for minimum reserve 
requirements. The relevant nati onal provisions will be supersed ed by the Eurosystem’s framework 
governing minimum reserves upon Poland’s accession to the euro area. Currently, the 
consequence of exempting an entity (that is a Eurosystem moneta ry policy counterparty at the 
 
5  See paragraph 2.2 of Opinion CO N/2018/48 and paragraph 2 of Opi nion CON/2016/40. 
6  Article 282(4) of the Treaty and Article 42.2 of the Statute of  the European System of Central Banks and of the 
European Central Bank. 
7  See Article 4(2)(a) of Regulation (EU) 2021/378 of the European  Central Bank of 22 January 2021 on the application 
of minimum reserve requirements (ECB/2021/1), which will apply from 26 June 2021 (OJ L 73, 3.3.2021, p. 1). 
8  See Directive 2001/24/EC of th e European Parliament and of the Council of 4 April 2001 on the reorganisation and 
winding up of credit instituti ons (OJ L 125, 5.5.2001, p. 15).  
9  See Directive 2014/59/EU of the European Parliament and of the Council of 15 May 2014 es tablishing a framework 
for the recovery and resolution of credit institutions and inve stment 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 Regu lations (EU) No 1093/2010 an d (EU) No 648/2012, of the European 
Parliament and of the Council  (OJ L 173, 12.6.2014, p. 190). 
ECB-PUBLIC  
4 same time) from minimum reserve requirements is that it loses a ccess to the Eurosystem’s 
monetary policy operations10. 
 
4. Prohibition of monetary financing 4.1 Refinancing loans granted by NBP to credit institutions  
 In line with the ECB’s Convergence Report 2020, the ECB reiter ates the recommendation for the 
introduction in the Law on NBP
11 of explicit safeguards with a view to ensuring compatibility w ith 
the monetary financing prohibiti on under Article 123(1) of the Treaty12. This refers, in particular, to 
Article 42(3) of the Law on NBP, which allows NBP to grant refi nancing loans for the purpose of 
implementing a bank rehabilitation plan, which is initiated in the event of a bank infringing, or being 
likely to infringe, certain requirements relating to, among oth er things, own funds, and the liquidity 
ratio. Currently, safeguards aimed at ensuring timely repayment  of such loans do not fully exclude 
an interpretation that would allow an extension of refinancing credit to a bank undergoing 
rehabilitation proceedings  that then becomes insolvent. 
4.2 Short-term loans granted by NBP to the Fund  
 As a preliminary point, the ECB notes that an appraisal based on the guiding criteria contained in 
the ECB’s Convergence Report regarding national legislation whi ch provides for the financing by 
a national central bank (NCB)  of a deposit guarantee scheme13, while necessary, is not sufficient 
for a comprehensive analysis of compatibility with the monetary  financing prohibition. The reason 
is that those criteria are predicated on the implicit assumptio n of the possibility of short-term 
financial support to entities outside the public sector. The as sumption ensures a coherent reading 
of the criteria against the word ing of Article 123(1) of the Tr eaty which explicitly prohibits NCBs 
from granting overdraft facilitie s or any other type of credit facility to the public authorities and 
bodies of Member States. Consequently, this opinion analyses th e provisions laid down in the Law 
on NBP and the Law on the Fund regarding short-term loans grant ed by NBP to the Fund from 
the perspective of the status of the Fund14. In particular, it considers whether the Fund is a ‘body 
governed by public law’ within t he meaning of Article 123(1) of  the Treaty15.  
 
10  See for example Article 55(a) of Guideline (EU) 2015/510 of t he European Central Bank of 19 December 2014 on 
the implementation of the Euro system monetary policy framework (General Documentation Guideline) 
(ECB/2014/60) (OJ L 91 , 2.4.2015, p. 3). 
11  Ustawa z dnia 29 sierpnia 1997 r. o Narodowym Banku Polskim ( Dziennik Ustaw z 2017 r., poz. 1373 ). 
12  See the ECB’s Convergenc e Report 2020, pp. 199-200. 
13  See the ECB’s Convergence Report 2020, p. 35. According to the se guiding criteria, national legislation which 
provides for the financing by an NCB of a deposit guarantee sch eme would be compatible with the monetary 
financing prohibition laid down in Article 123(1) of the Treaty  only if it were short term, addressed urgent situations, 
systemic stability aspects were at stake, and decisions were at  the NCB’s discretion. 
14  Previous recommendations made by the ECB in its opinions regard ing the Fund addressed only issues raised by 
the consistency with the guiding  criteria contained in the ECB’ s Convergence Report – see, for example, paragraph 
3.3 of ECB Opinion CON/2012/58. 
15  On the need to assess the status  of the deposit guarantee fund,  see paragraph 2.2 of Opinion CON/2020/24. For an 
earlier example, see paragraph 11 of Opinion CON/2005/50. 
ECB-PUBLIC  
5 4.3 The ECB recalls that, notwithstanding the absence of a spec ific definition of the concept of ‘body 
governed by public law’ in Council Regulation (EC) No 3603/9316, other areas of Union law and the 
related case-law of the Court of Justice of the European Union provide guidance on its 
interpretation for the purposes of the monetary financing prohi bition17. Accordingly, a body is 
‘governed by public law’ within the meaning of Article 123(1) o f the Treaty if it has all of the following 
characteristics: (a) it is estab lished for the specific purpose  of meeting needs in the general interest, 
not having an industrial or commer cial character; (b) it has le gal personality; and (c) it is closely 
dependent on the public sector entities referred to in Article 123(1) of the Treaty. A close 
dependence on those public sector entities is presumed when a b ody is financed, for the most part, 
by them; or is subject to management supervision by them; or ha s an administrative, managerial 
or supervisory board, more than half of whose members are appoi nted by them.  
4.4 The ECB notes that currently the Fund has the following mai n characteristics. It is a legal person 
and performs the function of t he national resolution authority and administrator of the deposit 
guarantee scheme. The purpose of the Fund’s activities is to ta ke measures aimed at stabilising 
the domestic financial system, in particular by ensuring the fu nctioning of the compulsory deposit 
guarantee scheme and conducting compulsory restructuring procee dings18. The governing bodies 
of the Fund are the Fund Council and the Fund Management Board19. The Fund Council consists 
of six members, comprising three representatives of the Ministe r competent for financial 
institutions, including the Chairman of the Fund Council, two r epresentatives of NBP and one 
representative of the Polish Fi nancial Supervision Authority20. The Fund Management Board is 
composed of three to five members, including the President and the Vice-President, and is 
appointed by the Fund Council21. The main sources of the Fund’s financing include mandatory ex -
ante annual contributions, extraordinary ex-post contributions,  income from financial assets of the 
Fund, funds from short-term loans granted by NBP, funds from lo ans granted from the State budget, 
and funds received as a resul t of borrowing and issuing bonds22. 
4.5 It follows that the conditions mentioned above are all met since (a) the Fund has been established 
for the purpose of meeting needs in the general interest – espe cially tasks related to financial 
stability, administering the deposit guarantee scheme and resol ution; (b) the Fund has legal 
personality; and (c) the majority of the members of the Fund Co uncil are appointed by the Minister 
competent for financial institut ions and the Financial Supervis ory Authority.  
4.6 In light of the foregoing, the ECB is of the view that the Fund qualifies as a ‘body governed by public 
law’ within the meaning of Artic le 123(1) of the Treaty. Conseq uently, given the current features of 
the Fund, the provisions laid down in the Law on NBP and the La w on the Fund regarding the 
 
16  Council Regulation (EC) No 3603/93 of 13 December 1993 specif ying definitions for the application of the 
prohibitions referred to in Ar ticles 104 and 104b (1) of the Tr eaty (OJ L 332, 31.12.1993, p. 1). 
17  See paragraph 2.3 of Opinion CON/ 2020/24 and the references mad e therein. 
18  See Article 4 of t he Law on the Fund. 
19  See Article 6(1) o f the Law on the Fund.  
20  See Article 7(4) of t he Law on the Fund. 
21  See Article 10 of t he Law on the Fund. 
22  See Article 270 of the Law on the Fund. 
ECB-PUBLIC  
6 possibility of NBP granting loans to the Fund are not compatibl e with the monetary financing 
prohibition and should be amended accordingly. 
 
This opinion will be published on EUR-Lex.  
 
Done at Frankfurt am Main, 7 May 2021.  
[signed] 
 The President of the ECB 
Christine LAGARDE