EN 
 
 
OPINION OF THE EUROPEAN CENTRAL BANK 
of 20 August 2009 
on an extension to Narodowy Bank Polski ’s entitlement to trade in securities  
(CON/2009/67) 
 
Introduction and legal basis  
On 27 July 2009 the European Central Bank (ECB) received a request from the Polish Minister for 
Finance for an opinion on a draft law amending th e Law on motorways and the National Road Fund and 
the Law on Narodowy Bank Polski (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 indent 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 
provisions1, as the draft law relates to Narodowy Bank Po lski (NBP). 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 The National Road Fund
2, operated by Bank Gospodarstwa Krajowego (BGK)3, supports the financing of 
road and motorway construction in Poland. The draft law: (a) adds loans extended by the State budget to 
the list of available financing sources; and (b) re gulates the procedure under which Treasury-guaranteed 
bonds are issued by BGK for the benefit of the National Road Fund4. One of the distribution channels of 
such bonds may be auctions organised, inter alia , by NBP, under an agreement entered into with BGK5. 
To enable NBP to organise such auctions, Article 2 of the draft law amends Article 48(3) of the Law on 
Narodowy Bank Polski6 by extending the NBP’s entitlement to organise trading in securities to cover, in 
addition to securities issued by th e Treasury, securities bearing the Tr easury’s guarantees or sureties. 
                                                 
1  OJ L 189, 3.7.1998, p. 42. 
2  As regulated under the Law of 27 October 1994 on motorw ays and the National Road Fund, consolidated text: Dziennik 
Ustaw  (Dz. U.) of 2004 No 256, Item 2571. 
3  BGK is the only Polish credit institution estab lished by legislation as a State bank.  
4  See explanatory memorandum to the draft law, p. 1.  
5  New Article 39r added in the Law on motorways and the Na tional Road Fund by Article 1(2) of the draft law. 
6 Law of 29 August 1997 on Narodowy Bank Polski, conso lidated text: Dz. U. of  2005 No 1, Item 2. 
2 2. Timing of the consultation  
The ECB received the consultation request after adop tion of the draft law by the Sejm and only a few 
days before consideration by the Senat. Article 4 of Decision 98/415/EC requires Member States to 
ensure that the ECB is consulted at an appropria te stage enabling the authority initiating the draft 
legislative provision to take into consideration the ECB’s opinion before deciding on the substance. 
 3. Role of NBP and the monetary financing prohibition  
The ECB understands that the draft law foresees provis ion by NBP of the fiscal agent services related to 
the organisation of auctions of Treasury-guaranteed bonds issued by a public undertaking (BGK) on the 
basis of the agreement between NBP and BGK providing for NBP’s remuneration at market rates. Provision of such services by an ESCB central bank n eeds to be assessed as regards its compliance with 
the monetary financing prohibition set out in Article 101 of the Treat y and forbidding public undertakings 
or other public sector entities of the Member States fr om obtaining overdraft faciliti es or any other type of 
credit facility with the national central bank. Furthe rmore, under Article 1(1)(b)(ii) of Council Regulation 
(EC) No 3603/93 of 13 December 1993 specifying defi nitions for the application of the prohibitions 
referred to in Articles 104 [101] and 104b(1) [103(1)] of the Treaty
7, the monetary financing prohibition 
relates inter alia  to central bank financing of the public sector ’s obligations vis-à-vis third parties. Taking 
into account the express recognition in Article 21.2 of the Statute of the European System of Central 
Banks and of the European Central Bank of the provision of fiscal agency services as a legitimate 
function traditionally performed by central banks, the ECB notes8 that provision by central banks of fiscal 
agency services should comply with the prohibition on monetary financing, provided that such services 
remain within the field of the fiscal agency func tion and do not constitute central bank crediting of the 
public sector outside the narrowly defined exceptions specified in Regulation (EC) No 3603/939 or central 
bank financing of public sector oblig ations vis-à-vis third parties10. Moreover, following previous ECB 
opinions, even if Article 101(1) refers literally to  ‘credit facilities’, i.e. facilities extended with the 
obligation to repay, this prohibition may also apply a fortiori  to other forms of funding, i.e. without the 
obligation to repay, since Article 101 of the Treaty has the overall aim of public finance discipline and of 
prohibiting national central banks from financing the public sector. This implies that both the ultimate 
objective and the spirit of these provisions must be taken into account in their interpretation11. The ECB 
                                                 
7  OJ L 332, 31.12.1993, p. 1. 
8  See ECB Opinion CON/2009/23, paragraph 2.2; all ECB opinions are available on the ECB’s website at 
www.ecb.europa.eu. See also the ECB’s Convergence Report of  May 2008, p. 24, stating that ‘The purpose of Article 
21.2 of the Statute was to enable NCBs, following transfer of the monetary policy competence to the Eurosystem, to 
continue to conduct the fiscal agent service traditionally provided by central banks to governments and other public 
entities without automatically breaching the monetary financing prohibition.’ 
9  See Article 4 (non-extendable intra-day credits), Article 5 (crediting, under specified conditions, the public sector’s 
account with cheques issued by third parties) and Article 6 (holding, within specified limits, coins issued by and credited 
to the public sector). 
10  See the ECB’s Convergence Report of May 2008,  p. 233, which states that provision by Česká národní banka of 
administrative support to the Financial Arbitrator, an ad ministrative body entirely independent from the central bank, 
‘constitutes a form of central bank financ ing of the public sector’s obligations’. 
11  See ECB Opinion CON/2003/27, paragraph 9 and ECB Opinion CON/2009/59, paragraph 2.2(b). 
3 considers in this context that provision by NBP of the fiscal agent services foreseen by the draft law does 
not raise concerns as regards its compliance with the monetary financing prohibition.  
 Conclusion The ECB has no objections to the draft law.  This opinion will be published on the ECB’s website.    Done at Frankfurt am Main, 20 August 2009.
 
 
[signed] 
 
The President of the ECB 
Jean-Claude TRICHET