EN 
 
 
 
OPINION OF THE EUROPEAN CENTRAL BANK 
of 20 June 2006 
at the request of the Polish Minister of Finance on a draft law amending the Law on banking 
(CON/2006/31) 
 
Introduction and legal basis On 15 May 2006, the European Central Bank (ECB) received a request from the Polish Minister of 
Finance for an opinion on a draft law (hereinafter the ‘draft law’) amending the Law on banking of 29 August 1997
1 (hereinafter the ‘Banking Law’). 
The ECB’s competence to deliver an  opinion is based on Article 105(4) of the Treaty establishing the 
European Community and the sixth indent of Article 2(1) of Council Decision 98/415/EC of 
29 June 1998 on the consultation of the European Ce ntral Bank by national authorities regarding draft 
legislative provisions2, as the draft law relates to the rules app licable to financial institutions insofar as 
they materially influence the stability of financial institutions 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 is intended to fac ilitate restructuring in the banking sector
3 by abolishing the 
prohibition on the division of banks operating as joint stock companies, which was introduced into Polish law in May 2004
4. To that end, the draft law proposes to allow the division of a bank 
operating as a joint stock company, under the relevant provisions of the Commercial Companies Code of 15 September 2000
5 (hereinafter the ‘Companies Code’).  
1.2 As a result of the proposed reform, the sharehol ders of an existing bank operating as a joint stock 
company would be allowed, on basis of the publicly registered terms of a division6 and upon 
                                                 
1  Law on banking of 29 August 1997 (consolidated tex t: Dz. U. of 2002, No 72 , Item 665, as amended). 
2  OJ L 189, 3.7.1998, p. 42. 
3  Second paragraph of the explanatory memorandum to the draft law. 
4  The change was effected by Article 1(72) of the Law of 1 April 2004, amending the Banking Law as of 1 May 2004 
(Dz. U. 2004, No. 91, Item 870), which introduced the current Article 124c of the Banking Law.  
5  Dz. U. of 2000, No 94, Item 1037, as amended. 
6  Articles 534-535 of the Companies Code. 
2 obtaining the consent of the Banking Supervision Commission7, to do either of the following: (i) to 
transfer all the assets of the existing bank to ot her banks, in exchange for shares in the acquiring 
banks issued to the shareholders of the divided bank (division by acquisition)8, or (ii) to transfer 
part of the assets of the existing bank to another bank, in exchange for shares in the acquiring bank 
issued to the shareholders of the divided bank (division by separation)9. The draft law expressly 
excludes the division of co-operative banks10. Banks acquiring the assets of a divided bank may 
either be Polish banks or other credit institu tions authorised in the European Economic Area 
(EEA)11. The shares of joint stock companies which opera te banks and which continue to exist after 
the division process would be tradable under the general rules.  
1.3  The provisions of the draft law would apply in  parallel with the existing rules allowing for intra-
group and cross-group transfers of assets by means of the direct sale of all or part of banking enterprises between banks, upon obtaining the c onsent of the Banking Supervision Commission
12. 
 2. The ECB’s comments 2.1 From the explanatory memorandum to the draft law, it appears that it has become necessary to 
repeal the prohibition on the division of banks ope rating as joint-stock companies, as this was 
hindering the necessary restructuring of the banki ng sector. Accordingly, the draft law seeks to 
ensure that associations, mergers and divisions of banks do not negatively affect the banks 
concerned by providing that the Banking Supe rvision Commission shall refuse to allow the 
division of a bank if this would be detrimental to the prudent and sound management of the bank. 
Thus, the draft law aims to reconcile both the n eed for flexibility in the restructuring of banking 
activities and the need to ensure deposito r protection and financial stability.  
2.2 Although there is no specific Community legislation  on the supervisory aspects of such operations, 
the Banking Directive
13 provides for specific requirements and supervisory approval with regard to 
banking activities, which must be continuously a pplied. As regards restructuring operations 
affecting credit institutions, many Member States  have provided for a role for a supervisory 
authority which, apart from any considerations a bout the commercial aspects of such operations, is 
                                                 
7  Article 1(3) of the draft law, introduci ng the new Article 124c(2) of the Banking Law. 
8  Article 1(3) of the draft law, introducing the new Article 124c (1)(a) of the Banking Law, referring to Article 529(1)(1) of 
the Companies Code.  
9  Article 1(3) of the draft law, introducing the new Article 124 c(1)(b) of the Banking Law, referring to Article 529(1)(4) of 
the Companies Code. 
10  Article 1(2) of the draft law, ame nding Article 124b of the Banking Law. 
11  Article 1(3) of the draft law, introducing the new Article 124c(1) of the Banking Law in connection to Article 4(1)(17) 
and Article 4(3) of the Banking Law. 
12  Article 124a of the Banking Law, as introduced by the am ending Law of 1 April 2004 (Dz. U. 2004, No. 91, Item 870), 
in force as of 1 May 2004. 
13  Directive 2000/12/EC of the European Parliament and of the Council of 20 March 2000 relating to the taking up and 
pursuit of the business of credit institutions, (OJ L 126, 26.5.2000, p. 1), as amended by Commission Directive 
2006/29/EC (OJ L 70, 9.3.2006, p. 50). 
3 required to ensure that restructuring does not ra ise any concerns about financial stability or 
supervisory concerns. 
2.3  The ECB welcomes the provision in the draft law that the banks acquiring the assets of a divided 
bank may either be Polish banks or EEA credit institutions, since it is expected that this 
clarification will ensure a level playing fiel d. More detailed rules (possibly in secondary 
legislation) on the procedure for obtaining the author isation referred to in Article 1(3) of the draft 
law, and the information to be provided to the supervisory authority, would further enhance the 
transparency of the supervisory process. 
 This opinion will be published on the ECB’s website.   Done at Frankfurt am Main, 20 June 2006. 
 
[signed] 
 
The President of the ECB 
Jean-Claude TRICHET