EN 
 
 
OPINION OF THE EUROPEAN CENTRAL BANK 
of 15 March 2011 
on payment services 
(CON/2011/23) 
 
Introduction and legal basis  
On 15 February 2011, the European Central Bank (ECB)  received a request from the Polish Minister for 
Finance for an opinion on a draft law on payment services (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 Union and the third and fifth indents of Article 2(1) of Council 
Decision 98/415/EC of 29 June 1998 on the consul tation of the European Central Bank by national 
authorities regarding draft legislative provisions1, as the draft law relates to Narodowy Bank Polski (NBP) 
and to payment systems. 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 purpose of the draft law is to transpose in to Polish law Directive 2007/64/EC of the European 
Parliament and of the Council of 13 November 2007 on payment services in the internal market 
amending Directives 97/7/EC, 2002/65/EC, 200 5/60/EC and 2006/48/EC and repealing 
Directive 97/5/EC
2.  
1.2 The main provisions of the draft law that go be yond the strict implementation of Union directives 
include:  
(a)  Article 48 of the draft law transposing Article 63 of Directive 2007/64/EC. Under this 
Article, the payer is entitled, subject to certain conditions, to the refund from his payment service provider (PSP) of an executed payment transaction initiated by or through a payee. 
This provision provides for an exemption under which NBP, when acting as a payer’s PSP, may withhold such refund until fund s are returned by the payee’s PSP
3; 
                                                 
1 OJ L 189, 3.7.1998, p. 42. 
2 OJ L 319, 5.12.2007, p. 1. 
3 See Article 48(3) of the draft law. 
2 (b)  Article 165(7) of the draft law amending Article 16 of the Law of 21 July 2006 on the 
supervision of financial market4. This provision relates to the members of the Polish 
Financial Supervision Authority (FSA) and en ables them to: (i) exchange information, 
including information protected  under other legal provisions, to the extent necessary for 
the appropriate performance of financial market supervision5; and (ii) make available to 
their staff information obtained by virtue of their participation in the FSA’s work, including information protected under other legal provisions
6. 
 2.  General observations In accordance with Decision 98/415/EC, this opinion only addresses those provisions of the draft law 
relating to NBP and payment and settlement systems which go beyond the strict implementation of Union 
directives. While acknowledging the importance of Di rective 2007/64/EC, its transposition into national 
law is not addressed in this opinion. Similarly, the provisions of the draft law
7 which amend the national 
measures transposing Directive 98/26/EC of the Europ ean Parliament and of the Council of 19 May 1998 
on settlement finality in payment and securities settlement systems8 are not considered in this opinion. 
 3.  Specific observations 3.1 NBP’s role as payment service provider  
The proposed Article 48(3) aims to  prevent a situation whereby NB P, acting in the capacity of a 
payer’s PSP, is obliged to refund to the payer an authorised payment transaction executed as part 
of a direct debit arrangement before the respective funds are returned by the payee’s PSP. The ECB understands that the rationale for this provis ion is the concern of the Polish legislator that 
such bridge financing by NBP might otherwise be interpreted as providing credit, in breach of Article 123 of the Treaty. 
3.2 Exchange and sharing of information by FSA members  
In its previous opinions on Polish legislatio n, the ECB has specifica lly encouraged measures 
promoting the exchange of information, includ ing information subject to confidentiality and 
professional secrecy requirements, between the key public authorities in the financial markets, 
such as NBP, the FSA and the Financial Stabi lity Committee, as well as the sharing of such 
information with the members of their decision-making bodies and their staff
9. In this regard, the 
                                                 
4 Dz. U. of 2006 No 157, item 1119. 
5 See new paragraph 2 in Article 16 of the La w on the supervision of the financial market. 
6  See new paragraph 3 in Article 16 of the La w on the supervision of the financial market. 
7 See Article 160 of the draft law amending the Law of 24 A ugust 2001 on settlement finality in payment and settlement 
systems and on the supervision of such systems (cons olidated text: Dz. U. of 2010 No 112, item 743).  
8  OJ L 166, 11.6.1998, p. 45. 
9 See, for instance, the recommendation to introduce legal pr ovisions authorising the exchan ge of information between 
NBP and the FSA and removing possible legal obstacles to su ch information sharing, in particular as regards the 
3 ECB welcomes the aim of ensuring the effec tive exchange of information between FSA 
members, as well as the possibility for FSA memb ers to share information with their staff. 
 This opinion will be published on the ECB’s website.   Done at Frankfurt am Main, 15 March 2011. 
 
[signed] 
 
The President of the ECB 
Jean-Claude TRICHET 
                                                                                                                                                             
exchange of information subject to conf identiality and professional secrecy requirements (see pa ragraphs 2.4.1 and 2.4.2 
of Opinion CON/2006/15); see also the recommendation to enable  access to information exchanged within the Financial 
Stability Committee to the members of NBP’s governing bodies and its staff who perform financial stability tasks but do 
not directly participate in the work of the Financial Stability Committee (see paragraph 3.3 of opinion CON/2008/39).