EN ECB-PUBLIC 
 
 
OPINION OF THE EUROPEAN CENTRAL BANK 
of 9 July 2014 
on the legal framework for credit institutions  
(CON/2014/52) 
 
Introduction and legal basis 
On 28 April 2014, the European Central Bank (ECB) received a request from the Polish Minister for 
Finance for an opinion on a draft law amending  the Law on banking and certain other legal acts 
(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 sixth indent of Article 2(1) of Council Decision 98/415/EC1, 
as the draft law relates to rules applicable to financia l institutions insofar as they materially influence the 
stability of financial institutions and markets. In accor dance 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 main purpose of the draft law is to trans pose Directive 2013/36/EU of the European Parliament 
and of the Council
2 and to give effect to the streamlining resulting from Regulation (EU) 
No 575/2013 of the European Parliament and of the Council3. In that regard, the draft law amends 
the Law on banking of 29 August 19974 and several other legal acts. Some of these amendments go 
further than transposition or implementation of Union law. 
1.2  The draft law makes a number of changes to  the current law having, inter alia, the following 
effects. 
(a) The Polish Financial Supervision Authority ( KNF) is designated as the national competent 
authority (NCA) for the purposes of Article 4(1) of Directive 2013/36/EU. However, in accordance with limitations imposed by the Po lish Constitution on the range of binding legal 
acts of general application that may be adopt ed and the power of administrative bodies to 
                                                 
1  Council Decision 98/415/EC of 29 June 1998 on the consulta tion of the European Central Bank by national authorities 
regarding draft legislative provisions (OJ L 189, 3.7.1998, p. 42). 
2  Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit 
institutions and the prudential supervision of credit instit utions and investment firms, amending Directive 2002/87/EC 
and repealing Directives 2006/48/EC and 2006/49/EC (OJ L 176, 27.6.2013, p. 338).  
3  Regulation (EU) No 575/2013 of the European Parliament a nd of the Council of 26 June 2013 on prudential requirements 
for credit institutions and investme nt firms and amending Regulation (EU) No 648/2012 (OJ L 176, 27.6.2013, p. 1).  
4 Consolidated text published in Dziennik Ustaw  (Dz. U.) of 2012, item 1376.  
ECB-PUBLIC  
2 adopt them, the KNF will not have the power to  adopt such legal acts; this power will be 
conferred on the Minister for Finance.  
(b) Under the provisions of a draw law on which the ECB has recently delivered an opinion5, 
and in line with the second sentence of Article  458(1) of Regulation (EU) No 575/2013, the 
body responsible for the conduct of macropruden tial oversight is not the NCA, but a newly-
created authority, the Systemic Risk Board,  which will obtain the status of designated 
authority within the meaning of Article 458(1). 
(c) The Minister for Finance will no longer be cons ulted by the KNF on, or involved in, the 
authorisation of banks from third countries that open branches in Poland. This aligns the authorisation procedure with the procedure a pplicable to domestic banks, where no provision 
is made for the involvement of the Minister for Finance
6. 
(d) The legislation governing Bank Gospodarstw a Krajowego (BGK) is to be amended7, 
providing for the payment of levies by BGK towards the Polish deposit guarantee scheme 
and facilitating its investment activities8. 
 2. Authority to adopt binding legal acts of general application The ECB takes note of the limitations imposed by the Polish Constitution on the range of binding legal 
acts of general application that may be adopted a nd on the power of administrative bodies to adopt them. 
The ECB also takes note of the reasons why the draft law confers such power on the Minister for Finance, 
instead of the NCA. At the same time, the power unde r national legislation of any national authority other 
than the NCA to exercise  an option granted to the NCA under Regulation (EU) No 575/2013 is without 
prejudice to the ECB’s power to exer cise such an option if it is or becomes the competent authority in 
accordance with Council Regulation (EU) No 1024/2013
9. Regulation (EU) No 575/2013 remains directly 
applicable in relation to any option provided to the NCA by the Regulation and, therefore, the ECB would 
be competent to exercise such an option if it is  or becomes the competent authority according to 
Regulation (EU) No 1024/2013.  
 3. Capital buffers The ECB notes that Directive 2013/36/EU, insofar as it concerns procedures for the imposition of capital 
buffers, is to be implemented by a draft law on th e macroprudential oversight of the financial system
10.  
 
                                                 
5 See Article 4(3) of a draft law on the macroprudential oversight of the financ ial system on which the ECB has issued 
Opinion CON/2014/18. All ECB opinions are publishe d on the ECB’s website at www.ecb.europa.eu. 
6  See Article 1(22)(a) of the draft law. 
7 BGK is the only credit institution in Poland established by legislation as a State-owned bank to support the Government’s 
policies. It is exempted from Directive 2013/36/EU in accordance with Article 2(5)(18) thereof. 
8  See in particular Articles 3 and 4 of the draft law. 
9  Council Regulation (EU) No 1024/2013 of 15 October 2013 conf erring specific tasks on the European Central Bank 
concerning policies relating to the prudential supervision of credit institutions (OJ L 287, 29.10.2013, p. 63). 
10 See Opinion CON/2014/18. 
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3 4.  Board member requirements 
Board member requirements for credit institutions, in cluding requirements relating to the suitability of 
board members, are set out in Articles 13(1) and 91( 1) of Directive 2013/36/EU and are further detailed 
in the European Banking Authority’s Guidelines on th e assessment of the suitability of members of the 
management body and key function holders11. The requirement in the draft law that all members of a 
credit institution’s management board and supervisory board dem onstrate a proven knowledge of the 
Polish language goes far beyond such Union requireme nts on the suitability of board members. Member 
States are subject to the general principle of non-di scrimination on grounds of nationality enshrined in 
Article 18 of the Treaty12 and this requirement could be considered discriminatory.   
 This opinion will be published on the ECB’s website.   Done at Frankfurt am Main, 9 July 2014. 
 
[signed] 
 
The President of the ECB 
Mario DRAGHI 
                                                 
11  EBA/GL/2012/06, 22 November 2012, available on th e European Banking Authority’s website at 
https://www.eba.europa.eu/. 
12  See, further, the principle of non-discri mination in Article 21(1) of the Charte r of Fundamental Rights of the European 
Union which has the same legal value as Union primary law ac cording to Article 6 of the Treaty on European Union.