EN ECB -PUBLIC  
 
OPINION OF THE EUROPEAN CENTRAL BANK  
of 9 August  2019  
on restrictions on transfer s of mortgage claims  
(CON/20 19/29) 
 
Introduction and legal basis  
On 10 July 2019 the European Central Bank (ECB) received a request from the Polish Sejm  (Parliament ) 
for an opinion on a draft law amending the Law on banking (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/EC1, as 
the draft law relates to rules applicable to financial institutions insofar as they  materially influence the 
stability of financial institutions  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 Under t he Law on banking2, in order to establish a mortgage  for the benefit of a bank,  the owner of 
an immovable property (hereinafter the ‘property owner’) must submit a written statement of 
consent, confirming the creation of a mortgage in favour of the bank . This statement  is necessary 
in order to record  a mortgage in the land and mortgage register . 
1.2 The draft law provid es that th e requirement to submit such a written statement of consent applies, 
mutatis mutandis , in the case of the transfer of a mortgage in connection with the disposal of bank 
claims .  
 
2. General  observations   
2.1 The ECB understands that the amendment introduced by the draft law should  be interpreted as 
requiring the written consent  of a property owner to transfer a ny bank claim  secured by a mortgage  
established for the benefit of a bank, without distinguishing between the purpose and the means of 
the transfer.  This would include,  inter alia , transfers for the purpose of creating asset -backed 
securities  or security over pools of credit claims  or transfers to specialised institutions for the 
purpose of issuing covered bonds . 
                                                 
1  Council Decision 98/415/EC of 29 June 1998 on the consultation of the European Central Bank by national 
authorities regar ding draft legislative provisions ( OJ L 189, 3.7.1998, p. 42) . 
2  Ustawa z dnia 29 sierpnia 1997 r. Prawo bankowe (Dz. U. z 2018 r., poz. 2187, z późn. zm.).  
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2  
2.2 The effect of the draft law would be to render the type of asset transfers required to utilise these 
financial instruments and techniques significantly more difficult  for Polish credit institutions . 
However, all of these instruments and techniques are important for the funding and, thus , the 
functio ning of the Polish  banking sector.  
2.3 The ECB also understands that the provisions of the draft law are limited to the banking sector . 
This implies that only transfer s of mortgage claim s established for the benefit of a credit institution  
would require the wr itten consent of the property owner. This places Polish credit institutions in a 
disadvantageous position compared to other market participants , who would be able to acquire or 
dispose of mortgage claims without the need to obtain the consent of the proper ty owner for such a 
transaction.  
2.4 The ECB also understands that the draft law applies not only to the transfer of ‘new’ mortgages , i.e. 
those created after the enactment of the draft law , but also to transfers of ‘existing’ mortgages , i.e. 
those created  prior to the enactment of the draft law.  Hence, the draft law may raise issues of legal 
certainty in respect of the validity of such transfers.  
 
3. Specific observations  
3.1 Impact on securitisation and covered bond markets  
3.1.1  The ECB has a strong interest in the sustainable revival of the European securitisation market. 
Securitisation i s a form of asset -based financing with the capacity both to channel flows of credit to 
the real economy and to transfer risk3. A healthy European securitisation market is important to 
ensure  well-functioning capital markets in the Union. Particularly where credit institutions’ capacity  
to lend to the real economy is constrained, securitisation can act as a fresh source of funding and 
free up capital for lending4.  
3.1.2  At Union level, t he ECB support s the proposal for a directive of the European Parliament and the 
Council on the issue of covered bonds and covered bond public supervision5, aim ed at facilitating 
the creation of a developed, harmonised, high -quality and transparent covered bond ma rket in the 
Union, which is important for promoting further integration of Union financial markets and 
deepening the Capital Markets Union (CMU)6. At national level, in the case of Poland, the ECB has 
welcomed the legal framework introduced in the past  to promote the development of the Polish 
covered bond market7. 
3.1.3  In this context , the draft law must carefully balance the benefits of well -functioning securitisation 
and covered bond markets against the impetus to protect debtors.  In this respect , the ECB note s 
                                                 
3  See paragraph 1.1 of Opinion CON/2016/11.  All ECB opinions are published on the ECB’s website at 
www.ecb.europa.eu . 
4  See paragraph 3.1.1 of Opinion CON/2018/16 and paragraph 2.3.1 of Opinion CON/2018/31.  
5  Proposal for a directive of the European Parliament and of the Council on the issue of covered bonds and covered 
bond public supervision and amending Directive 2009/65/EC and Directive 2014/59/EU ( COM(2018) 94 final ).  
6  See the first paragraph under ‘General observations ’ in Opinion CON/2018/37 . 
7  See paragraph 2.1 of Opinion CON/ 2015/11. 
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3 that the draft law is being introduced without the benefit of a thorough impact assessment. It is only 
by making such a prior assessment that it may be possible both to determine whether the draft law 
could achieve its aim, and to mitigate any negative i mplications. In the absence of an impact 
assessment, however, it is difficult to ascertain whether  the objectives set by the draft law will be 
achieved8.  
3.1.4  The ECB has concerns that the draft law would, by making it more difficult for credit institutions to  
resort to  securitisation s or issue covered bonds, have significant adverse effects on Polish credit 
institutions’ funding situation and their capacity to properly manage their balance sheets.  In 
particular, the draft law would impac t the true sale securit isation structures  of Polish credit 
institutions.  
3.2 Compliance with Polish constitutional and other legal principles  
 It is for the Polish  authorities to assess whether the draft law, including its potentially retroactive  
character, complies with Polish  cons titutional and other legal principles, in particular property rights. 
For its part, the ECB notes that introducing measures with retroactive effect would undermine legal 
certainty and not be in line with the principle of legitimate expectations9.  
 
This opinion will be published on the ECB’s website.  
 
 
Done at Frankfurt am Main , 9 August  2019. 
 
[signed]  
 
The President of the ECB  
Mario DRAGHI  
                                                 
8  See paragr aph 2.4 of Opinion CON/2019/14, paragraph 2.4.4 of Opinion CON/ 2018/31, paragraph 2.2.2 of Opinion 
CON/2018/13,  paragraph 2.3 of Opinion CON/2012/40, paragraph 2.3 of Opinion CON/2012/70, and paragraph 2.2 
of Opinion CON/2010/34.  
9  See paragraph 3.8 of Opinion CON/2019/14,  paragraph 4.3 of Opinion CON/2017/9,  and paragraph 3.2 of Opinion 
CON/2016/50.