EN ECB -PUBLIC  
 
OPINION OF THE EUROPEAN CENTRAL BANK  
of 28 July 2016  
on the oversight of payment schemes  
(CON/20 16/38) 
 
Introduction and legal basis   
On 24 May 2016 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 Payment Services1 and certain other laws 
(hereinafter the ‘draft law’).  The ECB understands that since the draft law was sent to the ECB for 
consultation a more recent version thereof has become available on the Polish Parliament’s website.  
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 fifth indents  of Article  2(1) of Council Decision 
98/415/EC2, as the draft law relates to  Narodowy Bank Polski (NBP) and payment and settlement 
systems . 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 main purpose of the draft law is to adapt the national legal framework governing card- based 
payment transactions to Regulation (EU) 2015/751 of the European Parliament and of the 
Council3, which  requires the Member States to designate competent aut horities that are 
empowered to ensure enforcement of the Regulation and to lay down rules on penalties applicable 
to infringements thereof.  Accordingly, the draft law, by way of an amendment to the Law on 
Payment Services, designates the President of NBP  (hereinafter the ‘President’)  as the competent 
authority for the enforcement of Regulation (EU) 2015/751 in respect of payment card schemes .  
1.2 In addition, the draft law aims at strengthening NBP’s oversight role in the area of payment 
schemes by extendi ng its oversight powers not only to card- based payment schemes but to all 
payment schemes active in Poland. The draft law also extends  the scope of the prudential 
supervision function of Komisja Nadzoru Finansowego (KNF, The Polish Financial Supervisory 
Authority ) in accordance with the Regulation.  
1.3 The draft law introduces a new chapter in the Law on Payment Services which includes provisions 
prescribing the type of action that may be undertaken by the President in carrying out the new 
                                                 
1  Published in Dziennik Ustaw (Dz. U.) of 2014, item 872.  
2  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) . 
3  Regulation (EU) 2015/751 of the European Parliament and of the Council of 29 April 2015 on interchange fees for 
card- based payment transactions (OJ L 123, 19.5.2015, p.1) . 
ECB -PUBLIC  
2 tasks as the competent authority for the oversight of payment schemes. In particular, the President 
will be responsible for : (i) issuing an operating licence and approving any changes to the rules 
governing the functioning of payment schemes ; (ii) assessing the functioning  of payment schemes ; 
(iii) collect ing and request ing information and documents necessary to perform such assessment ; 
(iv) issuing recommendations ; and (v) suspension or revocation of the licence.  The new chapter  
includes  the rules on payment schemes and  the licensing process relating to  them . The draft law 
also provides that the Minister responsible for financial institutions, after consulting the President, 
must  specify by regulation the criteria for the assessment of a payment scheme and the information 
and documents  required for an application for  a licence . 
1.4 Furthermore, the draft law introduces provisions that complement the rules on cooperation between 
NBP and KNF in  the field of supervision of  national payment institutions  providing acquiring 
servi ces. In particular, KNF will be obliged to inform the President of any changes that may have an 
impact on the accuracy of the information and documents to be included in a  licence application 
submitted by such a payment institution,  to the extent that they  may have an impact on the manner 
in which an acquiring service is provided.  In addition, if the President becomes aware that the 
activities of a payment institution could threaten the stability of the payment system t hey will have  
to inform KNF thereof.  
1.5 The draft law specif ies the scope of the opinion that the Pres ident has to provide before KNF 
issues a licence to a national payment institution. The opinion must  include an assessment of the 
application as it relates to the legality, safety and efficiency of the payment service.  The draft law 
also prescribes that the opinion must  be provided within one month of delivery of the application by 
KNF.  
1.6 The draft law provides that a licence for the operation of a payment scheme or the consent of the 
Presi dent to a change in the rules of a payment scheme will not be required (i) in the case of three-
party payment schemes (i.e. schemes where the governance authority is an issuer of a payment 
instrument and the only provider of acquiring services) and (ii)  if the rules of a payment scheme 
operating on Polish territory have been assessed by the appropriate oversight authority of another  
Member State or of the U nion. In the latter case , the draft law requires the payment scheme’s 
governance authority  to provide specified information to the President before operating the scheme 
on Polish territory. However, if the President finds that the rules of the pa yment scheme do not 
ensure the sufficient safety or efficiency o f the payment scheme or the infrastructure, paym ent 
systems and/ or payment schemes with which the payment scheme is affiliated, the payment 
organisation may be required by the President to apply for the above- mentioned  licence/consent.  
The draft law also provides that in both cases where the payment scheme is a payment card 
scheme (as defined in Regulation (EU) 2015/751) then the payment card scheme’s governance 
authority is required to provide the President with information confirming that the payment card 
scheme is compliant with the requirements laid down in Regulation (EU) 2015/751,  at least two 
months before the planned commencement date for the operation of the payment card scheme on 
Polish territory. A payment card scheme may start operating on Polish territory unless the 
President finds that the p ayment card scheme does not comply with the requirements set out in 
Regulation (EU) 2015/751, within two months of the abovementioned information being sent . In 
ECB -PUBLIC  
3 respect of payment schemes already operating in Poland on the day of the entry into force of the 
draft law, there is a grace period of six  months to submit the application for a licence to the 
President for the operation of the payment scheme or , in the case of a scheme previously 
assessed by the appropriate oversight authority of another Member State or of the Union,  to submit 
the documentation confirming the results of the previous assessment . Such a scheme is permitted 
to continue its operation until the application is assessed or  the documentation is reviewed, as 
applicable . 
1.7 The draft law fur ther provides that the President may, in particular, issue a decision on a 
temporary, partial or  total suspension of a payment sche me, including a three- party payment 
scheme and a card payment scheme operating on Polish territory which has been assessed by  the 
appropriate oversight authority of another  Member State or of the Union, or withdraw the consent 
for the functioning of such payment schemes . The President must  inform the relevant oversight 
authority about such a decision.   
1.8 Finally, t he draft law  also amends certain other laws which govern the oversight of other segments  
of the financial market infrastructure, such as  payment systems, securities settlement systems and 
providers of  acquiring services. The changes  mainly  reflect recent Union and int ernational 
oversight standards and provide the President with stronger oversight tools (e.g.  the introduction of 
additional requirements regarding provision of information for the entities operating financial market 
infrastructures ). 
 
2. Scope of the opini on 
This opinion focuses on  the oversight of payment schemes by NBP  (Section  3) and the new oversight  
tasks conferred on NBP in relation to the prohibition of monetary financing under Article 123 of the Treaty  
(Section 4). 
 
3. Oversight of payment schemes  
3.1 The ECB understands  and welcomes  that t he draft law  aims  to strengthen and provide a sound 
regulatory basis for NBP’s oversight role in the area of payment schemes , to ensure a safer and 
more efficient functioning of these schemes . 
3.2 It is noted that  the definition  of ‘payment scheme’4 in the draft law  appear s to include not only card-
based payment schemes, but cover s a wider set of payment schemes. The ECB understands that 
the main aim of the legislator  is to focus on the issuing and acquiring aspect of payment 
instruments, such as cards and mobile payments. The ECB also understands that it is not intended 
for the definition of ‘payment scheme’ to be interpreted as also covering the Single Euro Payments 
                                                 
4   ‘Payment scheme’ is defined as a set of rules for the execution of payment transactions, the rules for issuing and 
acquiring of payment instruments by payment service providers and the rules for the processing of payment 
transactions c arried out using payment instruments, in particular a payment card scheme.  
ECB -PUBLIC  
4 Area ( SEPA ) schemes for direct debits  (SDD)  and c redit transfers  (SCT) , as well as national (non-
SEPA) credit transfer and direct debit schemes5.  
3.3 The ECB notes that the draft law only  exempt s three- party payment schemes from the requirement 
to obtain a licenc e from or the consent of the President , but that the other powers of the President  
still apply , including the power to issue recommendations on such  a payment scheme and to 
suspend it from operati on in Poland.  However,  in the case of payment service providers from other 
Member States,  such powers  may conflict with the actions of the national competent authorities  of 
the home Member State responsible for the supervision of  providers of issuing and acquiring 
services  within  a payment  scheme . They may also conflict with the right of establishment and the 
freedom to provide services which payment institutions , e-money institutions  or credit institutions  
should enjoy when providing issuing and acquiring services in a host Member State.  
3.4 The Eurosystem oversight policy framework6 provides  that for the purpose of overseeing individual 
systems, it will assign a leading role to the central bank that is best placed to fulfil this function . For 
systems with a clear national anchor in Poland, NBP will perform this role and the draft law would 
provide a sound legal basis to support NBP’s role as lead overseer.  However, where there is no 
national anchor, the ECB Governing Council may assign the primary oversight responsibilities to 
the ECB , with participation of other interested national central banks ( NCBs ) in the Eurosystem  as 
part of a cooperative oversight arrangement . This is the case for the SCT and SDD schemes, as 
well as the Visa and American Express card payment scheme s. There are also cooperative 
oversight arrangements in place in relation to the Master Card card payment scheme, where the 
Nationale Bank van Belgiё/Banque Nationale de Belgique has been assigned as the lead oversight 
authority (with the ECB and some volunteering NCBs also involved in the arrangement) . The ECB 
welcomes that the draft law aims to  also exempt a payment scheme operating on Polish territory , 
which has been assessed by the appropriate oversight authority of an other  Member State or of the 
Union , from the requirement to obtain a licenc e from the President for the operation of a payment 
scheme or to obtain the President’s  consent  to a change in the rules of a payment scheme. The 
ECB understands that the President ’s power  to nevertheless require such a payment scheme to 
obtain the relevant licence/consent would, in practice,  only be exercised in cases where the final 
assessment by the appropriate oversight authority of another Member State or of the Union was 
negative and that , in any event , NBP would cooperate with the relevant oversight authority  until the 
conclusion of an oversight assessment and not take any unilatera l action based on preliminary 
assessment findings . However, t he draft law would benefit from making it clear that the President ’s 
power  will not conflict with any action taken by the Eurosystem . Similarly, t he provisions of the draft 
law provid ing for the possibility that the President may suspend a payment scheme or withdraw 
consent for its functioning could be clarified to ensure that t he exercise of the President’s  oversight  
powers , in relation to payment schemes that are already subject to Eurosystem ov ersight , will not 
conflict with action taken by the NCBs as part of a cooperative oversight arrangement . The ECB 
                                                 
5   The ECB’s interpretation is based on the understanding that the different elements of the definition of ‘payment 
scheme’ apply cumulatively.  
6   Eurosystem oversight policy framework, September 2015, available on the ECB’s website at: 
http://www.ecb.europa.eu.  
ECB -PUBLIC  
5 therefore suggest s that payment schemes in respect of which a leading oversight role has already 
been assigned to the ECB and/or one or more NCBs, be excluded from the scope of the 
President’s oversight powers, so that the draft law essentially relies  on cooperative oversight 
arrangements with the ECB and the NCBs.  In this respect , it is noted that NBP is entitled to 
participate in the Eurosystem  assessment groups on the basis of the contractual arrangements in 
place with the Eurosystem oversight authorities f or international card payment schemes . If such an 
approach is follow ed, this would mean increased pan-European harmonisation and efficiency in the 
provision of card payments.  
3.5 As a general matter , the Polish authorities  may also wish to further consider  whether the imposition 
of the abovementioned specific requirements on payment schemes established and legally 
operating in other Member St ates is compliant with the Treaty provision s on the free movement of 
services and other applicable provisions of EU law.  
3.6 In relation to the SCT and SDD schemes, whilst the ECB understands that the draft law intends to 
exclude credit transfer and direc t debit  schemes from the scope of NBP’s oversight, the drafting of 
the relevant  exclusion7 could be more accurately formulated.  In particular, the relevant provision of 
the draft law provides that the chapter dealing with NBP oversight do es not apply to pa yment 
schemes in so far as they are subject to the rules of assessment under Regulation (EU) No 
260/2012 of the European Parliament and of the Council (hereinafter the ‘SEPA Regulation’)8. 
However, the rules applicable to oversight assessment at Eurosystem  level are set out in the 
oversight policy framework  and related guides9, not in the SEPA Regulation. The latter  requires 
Member States to establish competent authorities responsible for ensuring compliance with the 
SEPA Regulation , but the key role of the se authorities is to monitor compliance by the payment 
service providers rather than carry out assessments of  payment schemes . In these  circumstances, 
the ECB invites the consulting authority to consider reformulating the relevant exclu sion by 
providing that the chapter dealing with NBP oversight does not apply to payment schemes for the 
execution of payment transactions regulated by the SEPA R egulation.  
3.7 Regarding the exercise of the President’s oversight powers over domestic payment schemes, the ECB n otes that the regulations to be issued by  the Minister responsible for f inancial institutions will 
specify the criteria for the assessment of a payment scheme. In the interests of harmonisation, the 
ECB suggests that these criteria  should be aligned with t he criteria established under the 
Eurosystem oversight policy framework.  
 
 4. Conferral of new tasks on NBP  
4.1 General observations  
                                                 
7   Proposed new Art. 132zu of the Law on Payment Services.  
8    Regulation (EU) No 260/2012 of the European Parliament and of the Council of 14 March 2012 establishing 
technical and business requirements for credit transfers and direct debits in euro and amending Regulation (EC) No 
924/2009 (OJ L 94, 30.3.2012, p. 22).  
9   See the relevant guides for the assessment of direct debit schemes and credit transfer schemes against the oversight standards , November 2014, available on the ECB’s website at www.ecb.europa.eu.  
ECB -PUBLIC  
6 4.1.1  The draft law  assigns the new oversight task to the President , since the President is the only NBP 
organ that may, under the Law on Narodowy Bank Polski, issue administrative decisions . The ECB 
understands that this new oversight task is, in effect, to be conferred on NBP  and that the 
President will act on behalf of NBP.  
4.1.2  The ECB would like to recall that when new  tasks are conferred on a member of the European 
System of Central Banks (ESCB), it is necessary to assess these tasks against the prohibition of 
monetary financing under Article 123 of the Treaty. For this purpose, t he ECB has developed 
guidance, in the f orm of general and specific considerations as set out in paragraph 4.2 , on the 
basis of which the ECB may decide whether  the new task conferred on an ESCB national central 
bank (NCB) is to be considered a central banking task or a governmental task for the purposes of 
assessing the conferral of such a task against the prohibition of monetary financing10. This 
guidance applies to genuinely new tasks that either did not exist in the past or did not form an 
integral part of the central banking tasks previously  assigned to the NCB in question. The tasks 
currently discharged by an NCB as central banking tasks are not reviewed and re- categorised, but 
may be reassessed if they are subject to substantive legislative amendments. In this regard, the ECB notes that  the President  already exercises oversight in respect of certain segments of the 
financial market infrastructure.  The draft law, however, extends NBP’s oversight  powers to include 
payment schemes  and the new tasks  should therefore be assessed for compliance ag ainst the 
monetary financing prohibition. The concrete assessment of whether NBP’s tasks as the authority 
responsible for oversight of payment schemes i s to be considered a central banking task or a 
governmental task is undertaken in paragraph 4.3. 
4.2 Guidance on conferral of new tasks  
4.2.1  First, the principle of financial independence requires that the Member States may not put their 
NCBs in a position where they have insufficient financial resources to carry out their ESCB - or 
Eurosystem -related tasks,  as applicable.  
Second, central banking tasks comprise in particular those tasks that are related to the tasks listed 
in Article 127(2), (5) and (6) of the Treaty.  
Third, new tasks conferred on an NCB that are atypical of NCBs’ tasks, or which are clearl y 
discharged on behalf of and in the exclusive interest of the government or of other public entities, 
should be considered as governmental tasks.  
4.2.2  An important criterion for qualifying a new task as a governmental task is therefore the impact of 
the task on the institutional, financial and personal independence of the NCB. In particular, the 
following should be taken into account.  
First, it should be assessed whether the performance of the new task creates inadequately 
addressed conflicts of interests with existing central banking tasks, and does not necessarily 
complement those existing central banking tasks. If a conflict of interest arises between existing and new tasks, there should be sufficient mitigation in place to adequately address that conflict. 
                                                 
10  See paragraph 2.3 of Opinion CON/2015/22.  All ECB opinions are published on the ECB’s website at 
www.ecb.europa.eu.  
ECB -PUBLIC  
7 Complementarity between the new task and existing central banking tasks should not, however, be 
interpreted extensively, so as to lead to the creation of an indefinite chain of ancillary tasks. 
Complementarity should also be examined from the point  of view of the financing of those tasks.  
Second, it should be assessed whether without new financial resources the performance of the 
new task is disproportionate to the financial or organisational capacity of the NCB and may 
negatively impact on its capacity to properly perform existing central banking tasks.  
Third, it should be assessed whether the performance of the new task fits into the institutional set -
up of the NCB in the light of central bank independence and accountability considerations.  
Fourth, it should be assessed whether the performance of the new task would entail substantial 
financial risks.  
Fifth, it should be assessed whether the performance of the new task exposes the members of the NCB’s decision- making bodies to political risks whic h are disproportionate and may also impact on 
their personal independence and, in particular, the guarantee of the term of office under Article 
14.2 of the Statute of the European System of Central Banks and of the European Central Bank.  
Any final assessme nt on the qualification of a task given to an NCB as either falling within the 
scope of a central banking task or a governmental task will be guided by the objective of ensuring the consistent application of the prohibition of monetary financing within the Eurosystem and the 
ESCB to the extent that it applies to its members.  
4.3 Specific observations  
4.3.1  Principle of financial independence  
The principle of financial independence requires  that the Member States may not put their NCBs in 
a position where they have insufficient financial resources to carry out not only their ESCB -related 
tasks, but also their national tasks, both from an operational and financial perspective
11.  
4.3.2  Links to tasks listed in Article 127(2), (5) and (6) of the Treaty  
The overs ight of payment schemes is a task related to the task s conferred in the fourth indent of 
Article 127(2) of the Treaty, as this task is ancillary to the promotion of the smooth operation of 
payment systems.  
4.3.3  Atypical tasks  
Central banks have always had an  interest in the safety and efficiency of payment and settlement 
systems. In particular, as noted in Section 3 above, the ECB together with the Eurosystem NCBs 
carries out  oversight activities  in relation to payment schemes . In addition, t he President already 
exercises oversight in respect of certain financial market infrastructures . The extension of NBP’s 
oversight  powers  to payment schemes  can therefore be regarded as not atypical of a central bank.  
4.3.4  Extent to which conflicts of interest with ex isting tasks are addressed  
Given that  the President already exercises oversight in respect of certain segments  of the financial 
market infrastructure,  the extension of  NBP’s  oversight powers  to payment schemes appears  to 
                                                 
11  See the ECB’s 2016  Convergence Report, p.25.  
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8 complement NBP’s existing powers and there should be no conflict of interest between the new 
and existing tasks  of NBP.  
4.3.5  Extent to which the performance of the new task is proportional with NBP’s financial and 
operational capacity and its ability to perform ESCB -related tasks  
 The ECB understands that the extension of the scope of the oversight to payment schemes should 
not entail a substantial additional operational or financial burden for NBP . The ECB also 
understands that NBP already undertook necessary measures to ensure resources f or the 
performance of the extended oversight duties.   
4.3.6  Extent to which the performance of the new task fits into the institutional set -up of NBP in the light 
of central bank independence and accountability considerations  
 Given the complementarity of the new tasks with NBP’s existing oversight powers in respect of other segments of the financial market infrastructure, the new tasks appear to fit into  the current  
institutional set -up of NBP . 
4.3.7  Extent to which the performance of the new task entails financial risks  
 The draft law does not contain any specific provisions on liability. The ECB understands that the 
performance of the new task does not involve the risk of any additional liability other than that to 
which NBP is already subject to in performance of its other duties , according to which damage 
resulting from NBP’s unlawful act would need to be established in order to hold NBP liable.   
4.3.8  Conclusion  
 Given the close link to  and complementarity with one of the principal functions of central banks  of 
promoting the smooth operation of payment systems,  the new tasks conferred on NBP are 
regarded as central banking tasks  for the purposes of assessing their compliance with the 
monetary financing prohibition.  
 
This opinion will be published on the ECB’s website.  
  
Done at Frankfurt am Main, 28 July 2016.  
 
[signed]  
 
The President of the ECB  
Mario DRAGHI