EN ECB-PUBLIC  
 
 
OPINION OF THE EUROPEAN CENTRAL BANK 
of 5 August 2011 
on amendments to the legal framework for paym ent systems and clearing  and settlement systems 
(CON/2011/62) 
 
Introduction and legal basis  
On 27 June 2011, the European Central Bank (ECB) received a request from the Polish Ministry of 
Finance for an opinion on a draft law amending the Law on settlement finality in payment systems and 
securities settlement systems and the rules for the s upervision of such systems, the Law on financial 
collateral and the Law on bankruptcy and reha bilitation (hereinafter the ‘draft law’). 
The ECB’s competence to deliver an  opinion is based on Articles 127(4) and 282(5) of the Treaty on the 
Functioning of the European and the third, fifth and sixth indents of Article 2(1) of Council 
Decision 98/415/EC of 29 June 1998 on the consulta tion of the European Central Bank by national 
authorities regarding draft legislative provisions1, as the draft law relates to Narodowy Bank Polski 
(NBP), to payment and settlement systems and to rules applicable to financial institutions insofar as they 
materially influence the stability of financial ins titutions and markets. In accordance with the first 
sentence of Article 17.5 of the Rules of Procedure of the European Central Bank, the Governing Council 
has adopted this opinion. 
 1.  Purpose of the draft law 1.1 The draft law amends the Law of 24 August 200 1 on settlement finality in payment systems and 
securities settlement systems and the rules for the supervision of such systems
2 (hereinafter the 
‘Law on settlement finality’), the Law of 2 April 2004 on financial collateral3 and the Law of 
28 February 2003 on bank ruptcy and rehabilitation4 (hereinafter the ‘Law on bankruptcy and 
rehabilitation’). The main purpose of the draft law is the transposition of Directive 2009/44/EC of 
the European Parliament and of the Council of 6 May 2009 amending Directive 98/26/EC on 
settlement finality in payment and securities settlement systems and Directive 2002/47/EC on 
financial collateral arrangements as regards linked systems and credit claims5, inter alia , by 
                                                 
1 OJ L 189, 3.7.1998, p. 42. 
2 Dz. U. ( Dziennik Ustaw ) of 2010 No 112, Item 743. 
3 Dz. U. of 2004 No 91, Item 871. 
4 Dz. U. of 2009 No 175, Item 1361. 
5 OJ L 146, 10.6.2009, p. 37. 
ECB-PUBLIC  
2 introducing into Polish law the concept of interoperable systems6 and extending the scope of assets 
eligible as financial collateral to include credit claims7. Furthermore, the draft law recasts certain 
provisions previously transposing Directive 98/26/EC of the European Parliament and of the Council of 19 May 1998 on settlement finality in  payment and securities settlement systems
8 in 
order to take into account, inter alia , the possibility of opening foreign insolvency proceedings 
against entities established in Poland9. Finally, several clarifying and streamlining amendments are 
introduced. 
1.2 The draft law introduces two specific amendments related to NBP. First, an express legal basis is 
provided for NBP to request from entities susp ected of operating payment systems on a de facto 
basis, i.e. without the required authorisation, information required for an application for such 
authorisation10. Second, the NBP’s obligation to notify systemically important systems to the 
Commission is extended in line with Directive 2009/44/EC11 to include also information on 
operators of such systems12.  
 2.  Transposition of Directives 2009/44/EC and 98/26/EC In line with Article 1(2) of Council Decision 98/41 5/EC this opinion does not address provisions of the 
draft law exclusively transposing Directive 2009/44/EC  into Polish law. Nevertheless, the ECB welcomes 
the intention expressed in the draft law of additiona lly reviewing the provisions transposing Directive 
98/26/EC into Polish law. In view of a substantial rise in the number of cross-border insolvency cases, 
including foreign insolvency pro ceedings against entities established in  Poland, the possibility of such 
proceedings against participants or system operato rs needs to be taken into account to ensure the 
completeness of protection given by the Polish lega l framework with regard to payment systems and 
securities settlement systems in line with Directive 98/26/EC.   
 3.  Specific observations 3.1  The ECB welcomes the clarification in the draf t law of NBP’s right to request information from the 
entities suspected of operating a payment system w ithout the authorisation required by the Law on 
settlement finality. Providing an express legal basis for such right – although it is already acknowledged in practice – will enha nce legal certainty and contribut e to improving the efficiency 
of central bank oversight of payment systems. 
                                                 
6 See Articles 1(1)(b), 1(3), 1(5)-(8) of the draft law. 
7 See Articles 2(1), 2(3)-(9) of the draft law. 
8 OJ L 166, 11.6.1998, p. 45. 
9 See Articles 1(1)(e) and 1(4) of the draft law. 
10 See Article 1(9) of the draft law, introducing a new paragraph (6) to Article 18 of the Law on settlement finality; see also 
Articles 17 and 17a of the Law on settlement finality which define the scope of information to be provided in an 
application for an authorisatio n to operate a payment system. 
11 See Article 1(11) of Directive 2009/44/EC am ending Article 10(1) of Directive 98/26/EC. 
12 See Article 1(10) of the draft law, amending Ar ticle 23 of the Law on settlement finality. 
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3 3.2 As mentioned in previous ECB opinions13, payment systems and securities settlement systems are 
interlinked, particularly in view of the use of  the ‘delivery versus payment’ mechanism, under 
which settlements of securities and transfers of funds  take place simultaneous ly. Such interlinking 
is further enhanced by the acknowledgment of interoperable systems under Directive 2009/44/EC 
and the draft law. There is therefore a strong argument in favour of the model used in some Member States of integrating the oversight of pa yment systems with the oversight of clearing and 
settlement systems, with national central banks pe rforming the oversight function. In this regard, 
the ECB reiterates the observations made in previous ECB opinions
14 regarding the need to ensure 
NBP’s responsibility for the oversight function in relation to clearing and settlement. An oversight 
function is inherent in the central banks’ task of  promoting a sound market infrastructure, in order 
to safeguard the effectiveness of monetary policy and the overall stability of the financial system. 
Hence, the ECB reiterates its general recommenda tion that NBP is expressly made responsible for 
the oversight of all clearing and settlement syst ems operating in Poland, including the systems’ 
rules, and given access to all information and data relevant to the performance of such oversight 
tasks. Such change would then require extending the proposed powers of NBP to require information from de facto payment systems to cover also clearing and settlement systems. 
3.3  In relation to the proposed amendment to  Article 23 of the Law on settlement finality
15, the ECB 
understands that the Polish legislator would shortly initiate another amendment in order to bring it 
in line with Directive 2010/78/EU of the European  Parliament and of the Council of 24 November 
2010 amending Directives 98/26/EC, 2002/87/EC, 2003/6/EC, 2003/41/EC, 2003/71/EC, 2004/39/EC, 2004/109/EC, 2005/60/EC, 2006/48/EC, 2006/49/EC and 2009/65/EC in respect of the powers of the European Supervisory Author ity (European Banking Authority), the European 
Supervisory Authority (European Insurance a nd Occupational Pensions  Authority) and the 
European Supervisory Authority (European Securities and Markets Authority)
16, providing for the 
European Securities and Markets Authority to replace the Commission as the recipient of 
notifications of payment systems and securities settlement systems17. 
3.4. Article 67 of the Law on bankruptcy and rehabilitation18 excludes assets provided as collateral in 
connection with participation in a system fro m the bankruptcy estate of the bankrupt system 
participant or any other entity which provided th e collateral. In addition, the proposed second 
sentence introduced by the draft law in Article 77(4) of the Law on bankruptcy and rehabilitation19, 
which refers to Article 67, exempts those assets from the general rule according to which legal acts 
                                                 
13  See ECB Opinions CON/2006/20, CON/2007/7 and CON/2007/ 20. All ECB opinions are published on the ECB’s 
website at www.ecb.europa.eu. 
14  See ECB Opinions CON/2006/15 and CON/2006/53. 
15 As amended by Article 1(10) of the draft law. 
16 OJ L 331, 15.12.2010, p. 120. 
17 See Article 10(1) of Directive 98/26/EC, as amended by Article 1(2)  of Directive 2010/78/EU. According to Article 13(1) 
of Directive 2010/78/EU, this provision should be trans posed by the Member States by 31 December 2011. 
18 As amended by Article 3(4) of the draft law.  
19 As introduced by Article 3(5) of the draft law. 
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4 of the bankrupt entity concerning the assets include d in the bankruptcy estate are null and void. 
Doubts may arise as to how these two provisions inter act, in particular as regards the moment when 
such assets may be provided as collateral by the bankr upt participant or used for that purpose by the 
system operator. Articles 67 and 77 would benefit from some more clarity in this respect. 
 This opinion will be published on the ECB’s website.   Done at Frankfurt am Main, 5 August 2011. 
 
[signed] 
 
The President of the ECB 
Jean-Claude TRICHET