EN 
 
 
 
OPINION OF THE EUROPEAN CENTRAL BANK 
of 24 June 2009 
on amendments to the rules governing the central securities depository 
(CON/2009/55) 
 
Introduction and legal basis  
On 11 May 2009 the European Central Bank (ECB) received a request from the Marshall of the Polish 
Parliament for an opinion on a draft law amending the Law on trading in financial instruments and certain 
other laws1 (hereinafter the ‘draft law’). 
The ECB’s competence to deliver an  opinion is based on Article 105(4) of the Treaty establishing the 
European Community and the third, fifth and sixth in dents of Article 2(1) of Council Decision 98/415/EC 
of 29 June 1998 on the consultation of the European Central Bank by national authorities regarding draft 
legislative provisions2, as the draft law relates to Narodowy Ba nk Polski (NBP), payment and settlement 
systems and rules applicable 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 and scope of the consultation 1.1 The draft law replicates the Law of 4 Septembe r 2008 on amendments to the Law on trading in 
financial instruments and to certain other laws
3 (hereinafter, the ‘Law of 4 September 2008’) which 
                                                 
1  The proposed amendments amend the Law of 29 July  2005 on trading in financial instruments (Dz. U. ( Dziennik Ustaw ) 
of 2005, No 183, Item 1538); the Law of 24 August 2001 on set tlement finality in payment and settlement systems and 
on the supervision of such systems (Dz. U. 2001,  No 123, item 1351; the Law of 29 August 1997 on banking 
(consolidated text: Dz. U. 2002, No 72, item 665); the Law of 25 July 2005 on supervision of the capital market (Dz. U. 
of 23 September 2005 No 183, Item 1537); and the Law of 21 July  2006 on supervision of the financial market (Dz. U. of 
4 September 2006 No 157, Item 1119). 
2  OJ L 189, 3.7.1998, p. 42. 
3  As adopted together with the Law of 4 September 2008 on am endments to the Law on public  offering and conditions for 
introducing financial instruments to the organised trading system, on public companies and on amendments to certain 
other laws (Dz. U. of 29 December 2008 No 231, Item 1547); the Law of 4 Se ptember 2008 on amendments to the Law 
on investment funds, the Law on banki ng and the Law on supervision of th e financial market (Dz. U. of 
29 December 2008 No 231, Item 1546). 
2 aimed to transpose a number of Community directives into the Polish legal system4, as well as to 
make other amendments to the Polish capital ma rket regulation. The Law of 4 September 2008 has 
undergone the full legislative procedure in the Parliament but has not yet entered into force due to a challenge before the Constitutiona l Tribunal against some of its provisions relating to NBP’s share 
ownership in the Polish central securities depository
5. According to the explanatory memorandum 
to the draft law6, the aim of the draft law currently presented for consultation is to re-enact those 
provisions of the Law of 4 September 2008 which are not subject to the constitutional challenge7. 
1.2 The ECB has previously commented on the draft versions of the Law of 4 September 2008 in its 
Opinions CON/2008/20 and CON/2006/538 as regards draft provisions other than those transposing 
Community directives. The present opinion refers to those previous ECB opinions. In particular, 
the provisions affecting the NBP’s share ownership in the Polish central securities depository (i.e. 
the now constitutionally challenged provisions of the Law of 4 September 2008) were commented 
on in paragraphs 3.1 to 3.3 of ECB Opinion CON/2008/20.  
 2. General observations 2.1 The ECB reiterates some of its comments in its opinions CON/2008/20 and CON/2006/53, to the 
extent they have not been incorporated in the Law of 4 September 2008, and now in the draft law. Such ECB comments relate in particular to: (i) the need to adapt the statutory definition of 
‘settlement’ to standards developed by the Co mmittee on Payment and Settlement Systems of the 
Bank for International Settlements and by the ECB
9; (ii) the need to prevent spillover of risks from 
the entity providing central counterparty services to the entity providing security settlement services
10; (iii) the need to assign tasks related to en suring the proper operation of the clearing and 
                                                 
4 The Directives to be im plemented by the draft law includ e: (i) Directive 2004/39/EC of th e European Parliament and of 
the Council of 21 April 2004 on markets in financial instru ments amending Council Direc tives 85/611/EC and 93/6/EEC 
and Directive 2000/12/EC of the European Parliament and of the Council and repealing Council Directive 93/22/EEC 
(OJ L 145, 30.4.2004, p. 1); (ii) Direct ive 2006/48/EC of the European Parliame nt and of the Council of 14 June 2006 
relating to the taking up and pursuit of the business of cr edit institutions (recast) (OJ L 177, 30.6.2006, p. 1); (iii) 
Directive 2006/49/EC of the European Parliament and of the Council of 14 June 2006 on the capital adequacy of 
investment firms and credit institutions (recast) (OJ L 177, 30.6.2006, p. 201); and (iv) Commission Directive 
2006/73/EC of 10 August 2006 implementing Directive 2004/39/EC of the European Parliament and of the Council as 
regards organisational requirements and operating conditions for investment firms and defined terms for the purposes of 
that Directive (OJ L 241, 2.9.2006, p. 26). 
5  See Article 19 of the Law of 4 Septembe r 2008. The constitutionality of that prov ision was challenged before the Polish 
Constitutional Tribunal by Poland's President on 23 September 2008 (see pending Case Kp 4/08). 
6  See page 2 of the explanatory memorandum to the draft law. 
7  See also judgment of the Court of Justice of the European Communities of 19 March 2009 in Case C-143/08 Commission 
of the European Communities v Republic of Poland declaring that, ‘by failing to adopt, within the period prescribed, all 
the laws, regulations and administrativ e provisions necessary to comply with  Commission Directive 2006/73/EC …, the 
Republic of Poland has failed to fulfil  its obligations unde r that directive’. 
8  All ECB opinions are available on the ECB’s website at www.ecb.europa.eu. 
9  See paragraph 2.3 of ECB Opinion CON/2006/53 and Article 45 b(2) of the Law on trading in financial instruments, as 
amended by the draft law. The ECB notes , however, an amendment to the definiti on of ‘clearing’ which, following the 
ECB’s suggestion, was broadene d to include activities other than the establishment of mutual obligations of the 
counterparties to the transaction, as perfo rmed by entities providing third-party se rvices to such dir ect counterparties. 
10  See paragraph 2.4 of ECB Opinion CON/2006/53 and Article 68 a(11) of the Law on trading in financial instruments, as 
amended by the draft law. 
3 settlement process not only to Krajowy Depozyt Papierów Warto ściowych (KDPW, the Polish 
central securities depository) but also to other cl earing or settlement system operators which may 
be established in Poland11; (iv) the need for clearing and settlement system operators to submit 
rules on business continuity measures and on secondary sites as a prerequisite for obtaining a licence
12; (v) the need to ensure express coverage  of clearing houses under the Law on settlement 
finality13; (vi) the need ‘for NBP to be expressly made  responsible, as one of its tasks, for the 
oversight of all securities clearing and settlement systems that operate or will operate in Poland, 
including the systems’ rules, and given access to  all information and data relevant to the 
performance of such oversight tasks’14. 
2.2 Specifically, the ECB reiterates paragraph 4 of Opinion CON/2008/20 on the draft provision 
foreseeing that certain KDPW tasks may be delegated outside KDPW but solely to KDPW’s own subsidiaries
15. The ECB noted in this context that, while national laws may provide for 
authorisation or review requirements in respect of  delegating or outsourcing to third parties of the 
activities of the central securities depositories (C SDs) conducting settlement functions, such laws 
normally do not require legal dependence by the CSD on third parties to which CSD activities are 
delegated or outsourced. It may also be desirable for the CSD to have more flexibility to outsource 
certain technical operations where the CSD retain s management and control over the outsourced 
functions, which would not prejudice further evolution of the securities infrastructure in Poland, its 
integration with the European securities infr astructure and further market harmonisation. 
 This opinion will be published on the ECB’s website.   Done at Frankfurt am Main, 24 June 2009. 
   
The President of the ECB 
Jean-Claude TRICHET 
                                                 
11  See paragraph 2.5 of ECB Opinion CON/2006/53 and Artic les 48 and 68a-68e of the Law on trading in financial 
instruments, as amended/introduced by the draft law. 
12  See paragraph 2.6 of ECB Opinion CON/2006/53. 
13  See paragraph 2.10 of ECB Opinion CON/2006/53. 
14  See paragraph 3(5)(i) of ECB Opinion CON/2008/20.  
15  See Article 48(7) of the Law on trading in financ ial instruments, as amended by the draft law.