EN 
 
 
OPINION OF THE EUROPEAN CENTRAL BANK 
of 27 January 2011 
on closed-end investment funds issuing non-public investment certificates 
(CON/2011/4) 
 
Introduction and legal basis  
On 20 December 2010, the European Central Bank (ECB)  received a request from th e Polish Minister for 
Finance for an opinion on a draft law amending the Law on investment funds (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/EC of 
29 June 1998 on the consultation of the European Ce ntral Bank by national authorities regarding draft 
legislative provisions1, as the draft law contains rules applicable  to financial institutions insofar as they 
materially influence the stability of financial ins titutions 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 1.1 The draft law amends the Law of 27 May 2004 on investment funds
2 (hereinafter the ‘Law on 
investment funds’), which defines the rules for the creation and operation of investment funds registered in Poland and the rules under which fo reign funds and foreign management companies 
may operate in Poland. 
1.2 The Law on investment funds provides that an i nvestment fund may be created as: (a) an open-end 
investment fund, which sells and redeems units at the request of a unit-holder, or (b) a closed-end 
investment fund, which issues either public i nvestment certificates or non-public investment 
certificates. The creation of any investment fund requires the authorisation of the Polish Financial 
Supervision Commission (FSC).  
1.3 The draft law is aimed at implementing new ru les for the supervision of closed-end investment 
funds issuing only investment certificates which, pur suant to the fund’s articles of association, will 
not be: (a) offered by way of a public offering; (b ) admitted to trading on a regulated market; or 
                                                 
1 OJ L 189, 3.7.1998, p. 42. 
2 Dziennik Ustaw  of 2004 No 146, Item 1546. 
2 (c) introduced to an alternative trading system. In  particular, the draft law proposes that the FSC’s 
authorisation should not be required to establish such a fund3 as it issues only non-public 
investment certificates addressed to professional investors. Pursuant to the explanatory memorandum to the draft law, professional investors do not require such extensive protection of their interests by the regulator given their experience and knowledge. 
1.4 The draft law also adapts the requirements, including the capital requirements, relating to such 
funds to the new supervision model. In addition,  there are changes relating to the conversion of 
non-public investment certificates into public cer tificates, taking into account the new rules for 
establishing closed-end investment funds which ha ve issued non-public investment certificates
4. 
 2.  General observations 2.1 The ECB takes note of the reasons underlying the new rules for the supervision of closed-end 
investment funds as described in paragraph 1.3, a nd in particular that the currently applicable 
supervision model governing such funds does not m eet the expectations and needs of professional 
investors
5. The ECB also notes that pursuant to the dr aft law the FSC’s authorisation will no longer 
be required to establish such closed-end investment funds6. 
2.2 Although the draft law refers to funds to which harmonised Union rules do not apply, the 
consulting authorities could consider using the experience of other Member States in which authorisation requirements for closed-end investment  funds exist at a national level. As far as 
safeguards against misassessment of investment ri sks are concerned, the minimum investment level 
provided for by the draft law
7 could be complemented with adequate information requirements to 
ensure that investors are aware of and are able to assess the ri sks connected to the conducted 
transactions. Such information requirements could include references to the risk profile of the 
acquired instruments and to the supervisor y regime which applies to the fund.  
 This opinion will be published on the ECB’s website.  Done at Frankfurt am Main, 27 January 2011. 
[signed] 
Vice-President of the ECB 
Vítor CONSTÂNCIO 
                                                 
3 See Article 1(3)-(4) of the draft law. 
4 See Article 1(19) of the draft law. 
5 See the explanatory memorandum  to the draft law, p. 1. 
6 See Article 1(4) of the draft law. 
7 See Article 1(18) of the draft law.