EN ECB -PUBLIC  
 
OPINION OF THE EUROPEAN CENTRAL BANK  
of 10 March 2015  
on the legal framework for Narodowy Bank Polski  
(CON/20 15/9) 
 
Introduction and legal basis  
On 30 December 2014  the European Central Bank (ECB) received a request from the Polish Ministry of 
Finance  for an opinion on  a draft law  amending the Law on Narodowy Bank Polski and the Law on higher 
education  (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 Eur opean Union and the first , second and third indents of Article 2(1) of Council 
Decision 98/415/EC1, as the draft law relates to currency matters , means of payment  and national central 
banks . 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 amends the Law of 29 August 1997 on Narodowy Bank Polski2 (hereinafter the ‘ Law 
on NBP’ ) with a view to revising and updating the legal framework for the central bank in Poland.  
1.2 To this end, the draft law:   
(a) subject to a transitional period, reduces the number of members of the Monetary Policy 
Council (MPC), NBP’s independent rate- setting body, and introduces a rolling membership 
system with overlapping terms of office for MPC members appointed by the various 
appointing bodies,  in order to enhance the stability of the MPC’s composition and the 
continuity of its decision- making process ; 
(b) clarifies restrictions  on the MPC members’ professional and public activities and introduces 
sanctions for non- compliance;  
(c) reorganises the portfolio of instruments available to NBP by categorising all existing and new 
NBP instruments as monetary policy instruments or financ ial stability instruments, as well as 
by expanding the category of financial stability instruments to include: (i)  stability loans, 
which may be granted to banks as well as other entities subject to financial market 
supervision; (ii) intraday loans, which may be granted to entities that are subject to financial 
market supervision and participate in payment systems operated by NBP; and (iii) sales and 
                                                 
1  Council Decision 98/415/EC of 29 June 1998 on the consultation of the European Central Bank by national 
authorities regarding draft legislative provisions (OJ L 189, 3.7.1998, p. 42).  
2  Consolidated text published in Dziennik Ustaw  (Dz. U.) of 2013, item 908.  
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2 purchases of debt securities outside open market operations, as part of transactions with the 
deposit guaran tee scheme and the central securities depository.  
(d) amends the provisions regarding the issue  of currency, in particular by: (i)  limiting the  NBP 
President’s task of determining the maximum volume of issuance of banknotes and coins so that it applies only to collector banknotes and coins; (ii) consolidating in the Law on NBP and 
expanding the rules regarding authenticity and fitness checking, and the criteria for the replacement of banknotes and coins; and (iii) consolidating in the Law on NBP and 
expand ing the rules regarding counterfeit banknotes and coins;   
(e)  enables NBP to cooperate with international organisations, international financial institutions and international banking institutions even if it is not a member thereof, and to participate in 
projects implemented in the context of  such cooperation;  
(f)  clarifies that NBP may be a member of any international organisation, including 
organisations whose area of activity goes beyond banking and finance;  
(g) clarif ies that the expenses relating to Poland’s membership in the International Monetary 
Fund (IMF) that are covered by NBP’s own funds include in particular expenses relating to : 
(i) quotas assigned to Poland;  and (ii) Poland’s  participation in IMF financial initiatives  
addressed to its member s; 
(h) streamlines  the procedures for deputising for  NBP’s President.  
 
2. General observations   
2.1 Since 2004, in its Convergence Reports, the ECB has assess ed the compatibility of Polish 
legislation  with the requirements of primary Union law relat ing to NBP’s participation in the 
European System of C entral Banks  (ESCB) and, prospectively, in the Eurosystem
3. The legal 
provisions identified in the ECB’s Convergence Reports as being incompatible with Union requirements are found both in the Polish Constitut ion
4 and in ordinary legislation, in particular in 
the Law on NBP.  
2.2 The ECB welcomes the draft law to the extent that it addresses a number of these  incompatibilities. 
However, there are still various outstanding issues that the draft law does not remedy. T he ECB 
therefore invites the Polish authorities to ensure compatibility with Union requirements at all levels 
of national legislation .  
  
3. Personal independence  
3.1 The ECB’s Convergence Report 2014 identified several provisions of the Law on NBP  and other 
laws that are incompatible with the requirements under the T reaty on the F unctioning of the 
European Union with respect  to central bank personal independence. In particular, some of these 
provisions  in the Law on NBP establish grounds for the dismi ssal of NBP’s  President and other 
                                                 
3  See in particular the ECB’s Convergence Report 2014 , Section 6.6 , pp. 250 to 254, and paragraph 2 of Opinion 
CON/2011/9.  All ECB opinions are published on the ECB’s website at www.ecb.europa.eu.  
4  See Opinion CON/2011/9.  
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3 members of NBP’s decision- making bodies involved in the performance of ESCB -related tasks that  
go beyond the exclusive grounds for dismissal specified in Article 14.2 of the Statute of the 
European System of Central Banks and of the European Central Bank (hereinafter the ‘ Statute of 
the ESCB’)5.  
3.2 In this respect, the draft law not only fails to  remedy the above incompatibi lities with the Union 
requirements  but introduces an additional ground for dismissal  of the MPC  mem bers, i.e. a breach  
of the restriction s imposed on their professional activities6. These restrictions  include a prohibition 
on holding any other positions or engag ing in commercial or public activities other than academic 
work, teaching or writing or engag ing, without the MPC’s  consent, in any activities of international 
organisations7. Such restrictions are welcomed since they represent safeguards against a conflict 
of interests, and such safeguards  are an element of the personal independence of the member s of 
NBP’s  decision -making bodies. However, in order to ensure compliance with Article 14.2 of the 
Statute of the ESCB , in conjunction with Article 130 TFEU and Article 7 of the Statute of the ESCB, 
the draft law should make clear that a breach of such res trictions does not constitute a ground for 
dismissal  of MPC members in addition to the two grounds laid down in Article 14.2 of the Statute of 
the ESCB . This c ould be achieved,  for example,  if compliance with the abovementioned restrictions  
was subsumed  under  the conditions required for the performance of the duties of the members of 
NBP’s  decision- making bodies.  
3.3 The sanction for non- compliance with the abovementioned restrictions is introduced with respect to 
the MPC members  only, and not to the member s of N BP’s Management Board8. However, the 
ECB has on many occasions noted that personal independence would be jeopardised if the rules 
for the security of tenure and grounds for dismissal of governors of national central banks (NCBs) 
were not also to appl y to other members of the NCBs’ decision -making bodies9, which in this case 
covers the NBP Management Board and MPC members alike.  In that respect, the ECB 
emphas ises that the grounds for dismissal of both MPC members and NBP Management Board 
members shoul d be fully in line with Article 14. 2 of the Statute of the ESCB.  
3.4 At the same time, the ECB reiterates the remarks made in the ECB’s Convergence Report 2014 
and Opinion CON/2011/9 , which relate to the grounds for dismissal of members of NBP’s decision-
making bodies.  
 
4. Monetary financing prohibition  
4.1 The ECB ’s Convergence Report 2014 refer red to the provisions of the Law on NBP that lay down 
NBP’s powers to grant refinancing credit to banks . In particular , reference was made to 
Article  42(3) of the Law on NBP , which allows NBP to grant refinancing credit for the purpose of 
implementing b ank rehabilitation proceedings  that are initiated in the event of a bank suffering a net 
                                                 
5 See the ECB’s Convergence Report 2014, Section 6.6.2.2, p. 251,  recommending amendments to Articles 9(3), 9(5), 
13(5) and the second sentence of Article 17(2b) of the Law on NBP.  
6  See Article 1(5)(b) of the draft law.  
7  See Article 1(6)(a) of the draft law.  
8  See Article 1(8) of the draft law  and p.  5 of the explanatory memorandum.  
9  See the ECB’s Convergence Report 2014, Section 6.6.2.2, p.251, and related ECB opinions referred to therein.  
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4 loss, of being threatened with such a loss , or of insolvency10. The Convergence Report stated that 
safeguards aim ed at ensuring timely repayment of such  credit did not fully exclude an interpretation 
that would allow an extension of refinancing credit to a bank undergoing rehabilitation proceedings 
that then becomes insolvent.  In thi s respect, the ECB recommended the introduction of explicit 
safeguards to avoid incompatibility with the monetary financing prohibition under Article 123 of the Treaty  and recommended amending the Law on NBP by introducing more explicit safeguards in 
relation to all financial institutions receiving liquidity support . 
4.2 Therefore, the ECB welcomes the provisions proposed in Article 1(17)(b) of the draft law, repealing Article 42(3) of the Law on NBP and thus abolishing the possibility of granting refinanci ng credit to 
a bank for the purpose of implementing a rehabilitation programme. This amendment brings the 
provisions related to refinancing credit into  line with the monetary financing prohibition rules . 
4.3 Nevertheless, the ECB would welcome two further clarifications in the draft law. First, it is noted 
that the draft law repeals Article 42(7) of the Law on NBP , which extends to refinancing credit the 
application of general conditions for extending credit contained in the Law of 29 August 1997 on 
banking
11, including in particular the requirement to provide adequate collateral. Therefore, t he 
requirement to provide adequate collateral is missing from the proposed wording of Article s 42(1) 
and 43(1)  of the Law on NBP , i.e. the provisions related to refinanc ing credit and loan s extended to 
the Bank Guarantee Fund. The ECB would recommend that the requirement  that these loans may 
only be granted against adequate collateral  be reintroduced in these provisions . Second ly, as 
regards the intraday loan facility introduced by  the proposed Article 43a of the Law on NBP , which 
may be granted to entities subject to financial market supervision which participate in the payment 
systems operated by NBP, the provision  could specify that this instrument supports the smooth 
functioning of payment systems and not  only financial stability . The ECB understands that such 
intraday credit is not restricted to situations that threaten financial stability.  
 
5. Issuance of money  
5.1 The proposed Article 35b(2) (1)(a) of the Law on NBP excludes euro banknotes and coins from the 
scope of applicability of the rules on authenticity checking. With regard to the authenticity checking 
of euro banknotes and coins, Article 35b(5) then refers to Article 6 of Council Regulation (EC) 
No 1338/200112. However, Article 6 of Regulation (EC) No 1338/2001 is only applicable in Member 
States which have not adopted the euro as their single currency , due to the extension of the scope 
of applicability contained in Article 1 of Council Regulation (EC) No 1339/200113. Moreover, 
Article  1 of Regulation (EC) 1339/2001 refers to a broader set of rules , so the reference made in 
the proposed Article 35b(5) of the Law on NBP appears to be too narrow in this regard. At the 
                                                 
10  See the ECB’s Convergence Report 2014, Section 6.6.4, pp. 252 and 253.  
11  Consolidated text published in Dz. U. of 2015 , item 128.  
12  Council Regulation (EC) No 1338/2001 of 28 June 2001 laying down measures necessary for the protection of the 
euro against counterfeiting (OJ L 181, 4.7.2001, p. 6).  
13  Council Regulation (EC) No 1339/2001 of 28 June 2001 extending the effects of Regulation (EC) No 1338/2001 
laying down measures necessary for the protection of the euro against counterfeiting to t hose Member States which 
have not adopted the euro as their single currency (OJ L 181, 4.7.2001, p. 11).  
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5 same time, Article 6 of Regulation (EC) No 1338/2 001 encompasses references to other applicable 
rules, in particular concerning the method for carrying out authenticity checks . In this regard too, a 
reference to Article 6 of Council Regulation (EC) 1338/2001 could be  too narrow.  
5.2 Therefore, the ECB advises amending the wording of the proposed Article 35b(5) of the Law on 
NBP to correctly reflect the se references.  
 
6. Other  incompatibilities with Union legislation   
6.1 The ECB’s Convergence Report  2014 identifie d several provisions  in the Law on NBP  that are 
incompatible with Treaty requirements  regarding central bank independence and confidentiality14. 
Although the draft law amends some of those provisions , it does not fully remedy all of  the 
incompatibilities.  This applies  in particular to the following provisions . 
6.2 Firstly, the ECB’s Convergence Report 2014 referred to various  issues of institutional 
independence that need to be addressed inter alia by amending Article 11 of the Law on NBP15. 
Although the draft law introduces some amendments to this Article , it does not remedy its 
incompatibility  with Article 130 of the Treaty and Article 7 of the Statute of the ESCB . Further more, 
the draft law amends Article 23 of the Law on NBP but it does not remove the obligation to forward 
draft monetary policy guidelines to the Council of Ministers and the Minister for Finance.  These 
provisions need to be brought into line with the relevant requirements  of the Treaty and of the 
Statute of the ESCB . 
6.3 With respect to the rules on the confidentiality of information, although the draft law  introduc es 
amendments to Article 23 of the Law on NBP, it  does not address the issue of t he disclosure of 
certain data that  is made possible by Article 23(7) of the Law  on NBP . The ECB’s Convergence 
Report 2014 cites this as an is sue that could potentially affect data protected under the ESCB’s 
confidentiality regime. The Convergence Report  recommended amending  the provision to fully 
comply with Article 37 of the Statute of the ESCB16, and that recommendation is now reiterated.  
 
7. Legal integration of NBP into the Eurosystem  
7.1 The l egal integration of NCBs into the Eurosystem requires that national legislation be amended to 
allow for the performance of Eurosystem -related tasks and compliance with the ECB’s decisions 
once the Member State concerned has adopted the euro. The ECB’s  Convergence Report  2014 
pointed to the necessity of several such amendments . Although some of the relevant provisions are 
being amended,  the draft law has not taken this opportunity to remedy these  incompat ibilities. In 
addition to the provisions referred to in paragraphs 3, 4 and 6 of this Opinion,  this refers  in 
particular  to the following.  
7.2 Firstly, as regards NBP’s  tasks17, although the draft law amends provisions relat ing to the MPC  and 
                                                 
14 See in particular the ECB’s Convergence Report 2014 , Section 6.6 , pp. 250 to 254.  
15  See the ECB’s Convergence Report 2014 , Section 6.6.2.1 , pp. 251 and 252. 
16  See the ECB’s Convergence Report 2014 , Section 6.6.3 , p. 25 2. 
17  See the ECB’s Convergence Report 2014, Section 6.6.5.2, pp. 253 and 254.  
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6 monetary  policy instruments, it does not address the fact that the provisions  provid ing for NBP’s  
powers  with regard to monetary policy  do not recognise the ECB’s powers in this field.  Similarly , 
the draft law amends Article 23 of the Law  on NBP , which provides for NBP’ s powers relating to the 
collection of statistics , but does not remedy the fact that the Law on NBP does not recognise the 
ECB’s powers in this field.  Also, the provisions of the Law  on NBP  which provide for NBP’s 
exclusive powers to issue and withdraw banknotes and coins having the status of legal tender do 
not recognise the powers of the Council and the ECB in this field.  
7.3 Secondly, as regards financial provisions18, the draft law amends  the rules on the appointment of 
independent external auditors , but  does not recognise the powers of the Council and the ECB 
under Article 27.1 of the Statute of the ESCB19. Also, the draft law does not address the need to  
ensur e that the powers of the Supreme Audit Office (NIK)  to control NBP’s activities are clearly 
defined and are without prejudice to the activities of NBP’s  independent ext ernal auditors.  
7.4 As regards exchange rate policy, although the draft law amends Article 17 of the Law on NBP , it 
does not recognise the powers of the Council and the ECB in this field20. 
7.5 Further, although the draft law amends the provisions of the Law on NBP related to  the issuing of 
banknotes and coins having the status of legal tender, it does not recognise the powers of the 
Council and the ECB  in this field.  
7.6 Finally, although the draft law amends the provisions related to the NBP’s  participation in 
international financial and banking institutions, it does not recognise the ECB’s powers in this 
field21. 
 
8. Appropriate time to amend the Law on NBP  
8.1 The ECB draws the Polish authorities’ attention to the fact that, in order to comply with Article 131 
of the T reaty  requiring the compatibility of national legislation with the T reaty  and the Statute of the 
ESCB, the relevant Polish legislation had to be adjusted by the date of Po lish accession to the 
Union, i.e. 1 May 2004. Hence, amendments addressing the outstanding issues identified in the 
ECB’s Convergence Report  2014 concerning central bank independence,  confidentiality and the 
monetary financing prohibition need to be adopted and enter into force as soon as possible, 
irrespective of when Poland adopts the euro.  
8.2  Although the amendments that are necessary to ensure the full integration of NBP into the 
Eurosystem should also be adopted as soon as possible, at the latest they must enter into force on 
the date when Poland adopts the euro.  
 
                                                 
18  See the ECB’s Convergence Report 2014, Section 6.6.5.3, p. 254.  
19  In this respect, on 14 June 2012 the Governing Council approved a series of good practices for the selection and 
mandate of external auditors in accordance with Article 27.1 of the Statute of the ESCB . These were established in 
order to provide high level guidance for the selection and mandate of external auditors . Although not binding, it is 
intended that each Eurosystem central bank, when selecting its  external auditor s pursuant to Article 27.1 of the 
Statute  of the ESCB , and when determining their  mandate thereafter, applies these good practices and/or explains 
any divergence.   
20  See the ECB’s Convergence Report 2014, Section 6.6.5.4, p. 254.  
21  See the ECB’s Convergence Report 2014, Section 6.6.5.5, p. 254.  
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7 9.  Expenses relating to Poland’s membership of the IMF 
Monetary financing prohibition  
9.1 The tasks performed by an NCB  must comply with the monetary financing prohibition under 
Article  123 of the Treaty and Council Regulation (EC) No 3603/9322. Pursuant to Article 7 of that 
Regulation, the financing by NCBs  of obligations falling upon the public sector vis -à-vis the IMF is 
not regarded as a credit facility within the meaning of Article 123 of the Treaty. R ecital 14 of 
Regulation 3603/93 sets out the rationale for the exemption and confirms that it is appropriate to 
authorise the financing by NCBs  of obligations falling on the public sector vis -à-vis the IMF, as this 
financing results in cla ims which have all the characteristics of reserve assets. In the light  of the 
draft amendment to Article 5(1a)  of the Law on NBP , it must be understood that NBP would be 
responsible for  the financing of IMF -related obligations  only in respect of  financing which results in 
claims of NBP which  have the characteristics of reserve assets23, or in respect of financing which 
does not result in such claims but which is financed from funds  that are due to Poland from, and 
transferred to it by , the IMF and the spendi ng of which reduces NBP’s revenue  and, consequently, 
the portion of its profit to be remitted to the State budget24. Provided that this is the case, the ECB 
considers that the proposed provisions would fall within the scope of Article 7 of Regulation (EC) 
No 3603/93 and should therefore not be regarded as a form of monetary financing prohibited under 
the Treaty.  
Central bank independence  
9.2 NBP is responsible for paying any increases in Poland’s IMF quota. It also exercises all rights 
connected with the IMF  system of special drawing rights (SDRs) and is in charge of fulfilling all 
Polish financial obligations resulting from Poland’s membership of the IMF. In this context, and in 
line with the principle of central bank independence enshrined in Article 130 of  the Treaty and 
Article 7 of the Statute of the ESCB, NBP should take decisions regarding the management of the 
SDRs in a fully independent manner25. The ECB recommends that this is clarified in the draft law.  
 
This opinion will be published on the ECB’s website.  
  
Done at Frankfurt am Main, 10 March 2015.  
 
[signed]  
 
The President of the ECB  
Mario DRAGHI  
                                                 
22  Council Regulation (EC) No 3603/93 of 13 December 1993 specifying definitions for the application of the 
prohibitions referred to in Articles 104 and 104b(1) of the Treaty (OJ L 332, 31.12.1993, p. 1) . 
23  See Article 5(1b) of the Law on NBP.  
24  Similarly, see Opinion CON/2010/22.  
25  Similarly, see Opinion CON/2012/65.