EN 
 
 
OPINION OF THE EUROPEAN CENTRAL BANK 
of 6 August 2010 
on amendments to the legal framew ork for the deposit-guarantee scheme 
(CON/2010/64)  
 
Introduction and legal basis  
On 8 July 2010 the European Central Bank (ECB) received a request from the Polish Ministry of Finance 
for an opinion on a draft law (hereinafter the ‘dra ft law’) amending the Law of 14 December 1994 on the 
Bank Guarantee Fund1 (hereinafter the ‘Law on the Bank Guarantee Fund’).  
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 sixth indents 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 Nar odowy Bank Polski (NBP) and to the 
rules applicable to financial institutions insofar as they materially influence the stability of financial 
institutions and markets. In accordance with the first sen tence 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 legal framework fo r the operation of the national deposit-guarantee 
scheme operated by the Bank Guarantee Fund (hereinafter the ‘Fund’)
3. The purpose of the 
amendment includes, but is not limited to, the transposition of Directive 2009/14/EC of the European Parliament and of the Council of 11 March 2009 amending Directive 94/19/EC on 
deposit-guarantee schemes as regards the c overage level and the payout delay
4 into the Polish legal 
system by amending, inter alia , the Law on the Bank Guarantee Fund and the Law on Narodowy 
Bank Polski of 29 August 19975 (hereinafter the ‘Law on NBP’). In line with Article 1(2) of 
                                                 
1 Consolidated text: Dziennik Ustaw  (Dz. U.) of 4 June 2009 No 84, item 711.  
2  OJ L 189, 3.7.1998, p. 42.  
3  Participation in the deposit-guarantee sc heme operated by the Fund is mandatory  for all banks established in Poland, 
including cooperative banks, but not for the Polish versi on of credit unions operating on the basis of the Law of 
14 December 1995 on cooperative savings and loan associations (Dz. U. of 4 January 1996 No 1, Item 2). Branches of 
non-EU banks must, and branches of EU credit institutions may,  be covered by the scheme to the extent that their home 
country schemes do not ensure deposit guara ntees at the level established in Polis h law (Articles 2(3) and 2b of the Law 
on the Bank Guarantee Fund). 
4  OJ L 68, 13.3.2009, p. 3. 
5  Consolidated text: Dz.U. of 1 April 2005 No 1, item 2. 
2 Decision 98/415/EC, this opinion does not concern provisions of the draft law that have the 
transposition of the Directive 2009/14/EC into national law as their exclusive purpose.  
1.2 The draft law amends the provisions of the Law on the Bank Guarantee Fund and of the Law on 
NBP that relate to the financing sources of the Fund and to the extension of short-term credit to the 
Fund by NBP. In this respect, the draft law: (a ) clarifies the procedure and order of priority 
according to which the various financing sources, including short-term credit from NBP, are drawn on by the Fund
6; and (b) expands the criteria under which s hort-term credit is granted by NBP, to 
include a requirement that any such cred it should cover urgent needs of the Fund7. 
1.3 The ECB has already been consulted on several  amendments to the Law on the Bank Guarantee 
Fund which introduced extensive adjustments to the method of financing, governance and 
supervision of the Fund8. 
 2. Compliance with the monetary financing prohibition 2.1 Funding arrangements for national deposit-guara ntee schemes must comply with the monetary 
financing prohibition under Article 123 of the Treaty. This provision prohibits, inter alia , the 
granting by the national central banks (NCBs) of ov erdraft facilities or any other type of credit 
facility to the public sector, including a facility in  the form of financing public sector obligations 
vis-à-vis third parties
9. Compliance with the monetary financing prohibition requires that the short-
term transfers from an NCB to a national deposit- guarantee scheme may only be performed subject 
to strict criteria10. As most recently expressed in the ECB’s Convergence Report of May 2010 ‘the 
costs of financing deposit guarantee schemes and investor compensation schemes must be borne, respectively, by credit institutions and investme nt firms themselves. National legislation which 
provides for the financing by an NCB of a nationa l deposit insurance scheme for credit institutions 
or a national investor compensation scheme for i nvestment firms would be compatible with the 
monetary financing prohibition onl y if it were short term, addressed  urgent situations, systemic 
stability aspects were at stake, and decisions were at the NCB’s discretion’
11. 
                                                 
6 See amendments introduced in Articles 7(2)(4) and 15(6) of  the Law on the Bank Guarantee Fund by Article 1(4) and 
Article 1(5) of the draft law.  
7 See Article 16a(5) of the Law on the Bank Guarantee Fund, introduced by Article 1( 6) of the draft law, which replaces 
the rules contained in the present Article 34 of the Law on th e Bank Guarantee Fund, as repealed by Article 1(15) of the 
draft law.  
8 See Opinions CON/2007/26, CON/2008/5 a nd CON/2008/32. All ECB opinions are published on the ECB’s website at 
www.ecb.europa.eu.  
9  See Article 1(1)(b)(ii) of 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). 
10  See the ECB’s Convergence Report December 2006, p. 30;  the ECB’s Convergence Report May 2008, p. 24; 
paragraphs 11 to 14 of Opinion CON/2001/32; paragraphs 11 to 13 of Opinion CON/2005/50; paragraphs 2.1 to 2.3 of 
Opinion CON/2007/26; paragraphs 2.2 to 2.8 of Opinion C ON/2008/5; paragraphs 2.2 to 2.4 of Opinion CON/2008/32; 
paragraph 3.2 of Opinion CON/2008/69;  paragraph 3.1 of Opinion CON/2009/ 10; and paragraph 2.2 of Opinion 
CON/2009/51. 
11  See the ECB’s Convergence Report May 2010, p. 25. 
3 2.2 In this regard, the ECB notes that the propo sed Article 16a(5) of the Law on the Bank Guarantee 
Fund sets out that ‘After exhausting the resources referred to in [other sections of the Law on the Bank Guarantee Fund] and occurrence of a threat to the financial stability, with a view to covering 
urgent needs of the Fund, Narodowy Bank Polski may, at the request of the Fund’s Management Board, grant the Fund the short-time credit as referr ed to in Article 15(6) [of the Law on the Bank 
Guarantee Fund], provided that adequate colla teral is ensured’. The ECB welcomes these 
amendments as they had been specifically recomme nded to the Polish authorities in previous ECB 
opinions
12 and convergence reports13. The ECB also welcomes the maintenance of the reference to 
the provision of adequate collateral by the F und as an additional requirement for granting short-
term credit by NBP, as also previously suggested by the ECB14. 
2.3 Furthermore, the ECB recommends introducing a le gislative correction in proposed Article 16a of 
the Law on the Bank Guarantee Fund. Under the cu rrently proposed wording, the reference to 
short-term credit from NBP appears in two separate sec tions of this Article. The first reference is in 
section four where NBP’s short-term credit is indi rectly indicated as one of the ‘other sources 
referred to in Article 15’, which are to be activ ated after the resources referred to in the three 
preceding paragraphs have been exhausted. The second reference is in section five where NBP’s 
short-term credit is identified as a source of financ ing to be activated after the resources referred to 
in the first four paragraphs of Article 16a have been exhausted. This dual reference might result in 
an incorrect interpretation of the proposed provi sions following which NBP’s short-term credit may 
be used before all other fina ncing sources have been exhauste d. The ECB recommends that the 
final version of the draft law clarify these provi sions, for example by explicitly excluding NBP 
short-term credit from the cross-reference to Artic le 15 contained in secti on four of Article 16a, 
with a view to ensuring that NBP’s short-te rm credit unambiguously re mains the ‘last-resort’ 
source of financing of the Fund15, only granted in compliance with the strict criteria specified in the 
ECB’s convergence reports. 
2.4 As the result of a further amendment introduced  by the draft law, Article 43 of the Law on NBP 
will include a reference to the proposed Article  16a(5) of the Law on the Bank Guarantee Fund. 
The ECB understands that under the amended pr ovisions NBP will retain full discretion in 
assessing if the statutory criteria for granting short-term credit to the Fund are met, and, if this is the case, whether to grant such credit. It is indeed essential for compliance with the monetary 
financing prohibition that the legal framework ensure s that NBP is able to make its decision at its 
own discretion and in an independent manner.  
 
                                                 
12  See footnote 8.  
13  See ECB’s Convergence Report December 2006, p. 229; th e ECB’s Convergence Report May 2008, p. 244; and the 
ECB’s Convergence Report May 2010, p. 255.  
14  See paragraph 2.5 of Opinion CON/2008/32.  
15 See paragraph 2.6 of Opinion CON/2008/5. 
4 3. Exchange of information between NBP and the Fund 
3.1 The draft law broadens the sources of informa tion that the Fund may use in assessing the financial 
soundness of the credit institutions benefiting from the Fund’s coverage. Under the amended Law 
on the Bank Guarantee Fund: (a) NBP and the Fi nancial Supervision Commission are required to 
inform the Fund about the financial status of the credit institutions, including actions undertaken in 
the case where a balance sheet loss or a solvency threat arises16; and (b) the Financial Supervision 
Commission is required to inform the Fund about: (i) facts relevant to the assessment of the 
proposed plans for the use of th e Fund’s financial assistance17; and (ii) circumstances that may lead 
to the activation of the Fund’s payout guarantees18. The Fund has the right to request further 
information relevant to its tasks from NBP, the Financial Supervision Commission and other 
enumerated public authorities19. At the same time, the Law on the Bank Guarantee Fund does not 
include any legal basis for the Fund to provide inform ation that it has collected to other authorities, 
such as NBP20.  
3.2 In a previous opinion, the ECB recommended that ‘it is important to maintain channels for timely 
central bank access to information concerning financial market participants, relating in particular to 
crisis situations. Such access to prudential information, as possessed, inter alia,  by the Fund, will 
allow NBP to properly perform its financial stability role’21. The ECB recommends that the draft 
law introduces an explicit legal basis for an ag reement allowing for the sharing with NBP of 
information in the Fund’s possession that is relevant  to financial stability and that is needed by 
NBP to: (a) fulfil its own financial stability mandate22; and/or (b) determine whether granting short-
term credit to the Fund is appropriate in view of the ‘occurrence of a threat to the financial 
stability’ under proposed Article 16a(5) of the Law on the Bank Guarantee Fund.  
3.3 Moreover, the ECB understands that any inform ation sharing arrangements involving the Fund and 
NBP will be subject to confidentiality safeguards la id down in the agreement entered into between 
NBP and the Fund23. In this context, the internal confid entiality standards applicable within the 
Fund under Article 38(10) of the Law on the Bank Gu arantee Fund should be strengthened so as to 
incorporate confidentiality obligations applicable specifically to the members of the Fund’s staff 
and governing bodies, similar to those set out in other sectoral legislation24.  
                                                 
16  See Article 38(3) of the Law on the Bank Guarantee Fund. 
17  See Article 38(1) of the Law on the Bank Guarantee Fund. 
18  See Article 38(3a) of the Law on the Bank Guarantee Fund, introduced by Article 1(17) of the draft law, which 
transposes the amendment introduced in  Article 10(1) of Directive 94/19/EC by Article 1(6) of Directive 2009/14/EC. 
19  See Article 38(4) of the Law on the Bank Guarantee Fund. 
20  See Article 38a(2) of the Law on the Bank Guarantee Fund. The Fund may share the possessed information, subject to 
reciprocity and confidentialit y safeguards, with counterparty deposit-guara ntee schemes in the European Economic Area 
(see Article 38c in connection with Article 2b(2) of the Law on the Bank Guarantee Fund). 
21  See paragraph 3.3 of Opinion CON/2008/32.  
22  See Article 3(6a) of the Law on NBP.  
23  Entering into such an agreement is based on Arti cle 38(5) of the Law on the Bank Guarantee Fund.  
24  See in particular Article 55 of the Law on NBP and Article 16 of the Law on supervision of the financial market (Dz. U. 
of 4 September 2006 No 157, item 1119); cf. paragraph 15 of the Annex to the Regulation of the Council of Ministers of 
5  
This opinion will be published on the ECB’s website.   Done at Frankfurt am Main, 6 August 2010. 
 
[signed] 
 
The President of the ECB 
Jean-Claude TRICHET 
                                                                                                                                                             
14 September 2009 on the adoption of the Statute of the Bank Guarantee Fund (Dz.U. of 5 October 2009 No 164, 
Item 1308), establishing confidentiality obligations  in relation to members of the Fund’s Council.