EN ECB -PUBLIC  
 
OPINION OF THE EUROPEAN CENTRAL BANK  
of 28 May 2015  
on the legal framework for the deposit guarantee scheme and  resolution  in the financial market s 
(CON/20 15/17)  
 
Introduction and legal basis  
On 10 April 2015 the European Central Bank (ECB) received a request from the Polish Ministry of 
Finance  for an opinion on  a draft law  on the Bank Guarantee Fund, the deposit guarantee scheme and 
compulsory restructuring  (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 third and sixth indent s of Article  2(1) of Council Decision 
98/415/EC1, as the draft law relates to Narodowy Bank Polski  (‘NBP’)  and rules applicable to financial 
institutions ins ofar as they materially influence the stability of financial institutions and markets . For 
elements of the draft law , where the exclusive purpose is the implementation of Union law, the ECB’s 
competence to deliver an opinion is based on Article 25.1 of the Statute of the European System of 
Central Banks and of the European Central Bank. 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 modify the legal framework of the current deposit guarantee 
scheme in Poland, operated by the Bank  Guarantee Fund (the ‘Fund’) , and develop a framework 
allowing for the resolution of entities subject to this scheme. To this end, the draft law i mplement s 
Directive 2014/59/EU of the European Parliament and of the Council2 and Directive 2014/49/EU of 
the European Parliament and of the Council3 through a new, separate legal act repea ling the 
current Law  on the Bank Guarantee Fund4 (hereinafter the ‘Law on BFG’) . The draft law  also 
repeals existing restructuring and support measures under Polish law to bring the relevant 
provisions in line with the new resolution framework . In this respect the draft law amends several 
other related legal acts, including legislation on financial instruments, insolvency, financial market 
supervision and recapitalisation of financial institutions.  
                                                 
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  Directive 2014/59/EU of the European Parliament and the Council of 15 May 2014 establishing a framework for the 
recovery and resolution of credit institutions and investment firms and amendin g Council Directive 82/891/EEC, and 
Directives 2001/24/EC, 2002/47/EC, 2004/25/EC, 2005/56/EC, 2007/36/EC, 2011/35/EU, 2012/30/EU and 
2013/36/EU, and Regulations (EU) No 1093/2010 and (EU) No 648/2012, of the European Parliament and of the 
Council (OJ L 173, 12.6.2014, p. 190) . 
3  Directive 2014/49/EU of the European Parliament and of the Council of 16 April 2014 on deposit guarantee schemes 
(OJ L 173, 12.6.2014, p. 149) . 
4  Consolidated text Dz.U. of 2014, item 1866.  
ECB -PUBLIC  
2 1.2 Under  the draft law , the Fund, which is a legal person,  is designated as th e national resolution 
authority  and administrator of the deposit guarantee scheme,  and Komisja Nadzoru Finansowego  
(KNF, The Financial Supervisory Authority)  retains its supervisory tasks as the national supervisory 
authority. The most important characteri stics of the redesigned framework are the following:  
(a) the newly established deposit guarantee scheme and resolution framework  is obligatory and 
covers , inter alia,  domestic banks, branches of non- EU credit institutions and Polish credit 
unions ; 
(b) the purpose of the Fund’s  activities is to take measures aimed at stabilising the domestic 
financial system, in particular by ensuring the functioning of the compulsory deposit 
guarantee scheme and conduct ing compulsory restructuring proceedings ; 
(c) as the resolution authority, the Fund is conferred with resolution powers and has access to 
resolution tools , in particular the sale of business tool, the bridge institution tool, the asset 
separation tool and the bail -in tool;  
(d) when performing its tasks, the Fu nd cooperates with other bodies and institutions concerned 
with the stability of the domestic financial system, as  well as other c ompetent authorities ; 
(e) the governing bodies of the Fund are the Fund Council and the Fund Management Board.  
The Fund Counci l consists of the chairperson and seven members, including two 
representatives of NBP, nominated by its President . The Fund Management Board is 
composed of three to five members ( including the President and the Vice-President ) and is 
appointed by the Fund Council ; and 
(f) the main sources of the Fund’s financing include mandatory ex-ante annual contributions, 
extraordinary ex-post contributions,  income from financial assets of the Fund, funds from 
short -term loans granted by NBP, funds from loans granted fr om the S tate budget , and funds 
received as a result of borrowing and issuing bonds . 
1.3 Under Article 251(7) of the draft law, the sources of the Fund’s financing include funds from the 
short -term loans granted by NBP in accordance with Article 273. According to this Article, in the 
event of a threat to financial stability and in order to cover any urgent needs of the Fund related to 
the disbursement of guaranteed funds,  NBP may, at the request of the Fund Council , and subject 
to the provision of adequate c ollateral, grant short -term credit to the Fund. The ECB understands 
that the circumstances and conditions under which such credit will be granted are similar to those 
governing short -term credit under the current Law on BFG ..The ECB also understands that , if 
approved by  NBP at its sole discretion, such  temporary credit would be provided under a contract 
between NBP  as creditor,  and the Fund as debtor. The draft law does not stipulate further the 
material terms and conditions (e.g. pricing terms) of such credit.  
1.4 The Fund is designated as  a resolution authority  and, as a result , the role of NBP  in administrative 
resolution matters is mainly consultative and cooperative.  This role include s:  
(a) consultative powers, including the requirement imposed on the Minister  for Finance to 
consult the NBP President on certain implementing measures as well as on a decision to 
provide a recapitalisation guarantee in respect of  a distressed financial institution or to apply 
any of the government financial stabilisation t ools;  
ECB -PUBLIC  
3 (b) an obligation to conclude separate agreements for the cooperation and the exchange of 
information between NBP, the Fund, KNF and the Minister  for Finance,  which would 
establish an obligation to exchange information necessary for the performance of the 
statutory tasks  of the respective entit ies; and 
(c) involvement in resolution proceedings , where NBP : (i) is informed by KNF of any  cases that 
have been identified of institutions that are likely to fail , and (ii) informs the Fund of any 
institutions it is aware of whose economic situation may have a negative impact on the 
continuation of critical functions, financial stability  or the protection of depositors . 
 
2. General observations   
2.1 The ECB welcomes the draft law  which  strengthens the tools and procedures available to the 
national authorities , thereby allowing for early intervention and, if necessary, effective resolution of 
institutions, in line with the common framework of intervention powers and rules laid down in 
Directive 2014/59/EU  . The resolution tools and procedures will, in particular, help to resolve failing 
banks while preserving financial stability, and help shield the public budget from  the resolution 
costs.  
2.2 The ECB stresses, however, that it does not opine on whether the draf t law effectively discharges  
the obligations of Poland to implement Directive 2014/59/EU  and Directive 2014/49/EU  into Polish 
law. Rather, the ECB focus es on those provisions that may impact on the role and tasks of NBP as 
a central bank and as a member of  the European System of Central Banks (ESCB).  
 
3. The Fund  as the resolution authority  
3.1 Directive 2014/59/EU  does not prescribe the type of authority or authorities that Member States 
should appoint as  resolution authorit ies, leaving this to the discret ion of Member States. In this 
respect, the ECB notes that the Fund is designated as the national resolution authority and 
administrator of the deposit guarantee scheme as well as administrator of the resolution financing 
arrangement . 
3.2 The ECB understands  that the Fund is therefore e ntrusted with different functions , in particular : 
(i) management of the deposit guarantee scheme;  (ii) management of the resolution fund;  and 
(iii) resolution  functions . In this respect , the ECB observes that , under Directive 2014/59/EU , 
adequate structural arrangements must be in place to ensure operational independence and avoid 
conflicts of interest between the resolution function  and the other functions of the relevant 
authority5. 
 
4. Liquidity provision from NBP  to the Fun d 
4.1 The ECB emphasises the importance of alignment of national provisions  with the monetary 
financing prohibition under Article 123 of the Treaty. The ECB underlines that national legislation 
which provides for the financing by a national central bank (N CB) within the ESCB of a national 
                                                 
5  See Article 3(3) of the Directive 2014/59/EU . 
ECB -PUBLIC  
4 deposit guarantee scheme for credit institutions will only be compatible with the monetary financing 
prohibition if such financing is short -term, addresses urgent situations, systemic stability issues are 
at stake and deci sions are made at  the NCB’s discretion6. To this end, inserting references to 
Article 123 of the Treaty in national legislation should be considered. When exercising its discretion to grant a loan, the NCB must ensure that it is not in effect taking over a government task. In 
particular, central bank support for deposit guarantee schemes should not amount to a systematic 
‘pre-funding’ operation.  
4.2 The ECB notes that short-term credit granted by NBP to the Fund under Article 273 of the draft law  
is not explicitly  excluded from being  used to replenish the resolution fund, even though Article 273 
provides  that NBP may only grant such short -term credit in order to cover urgent needs of the Fund 
related to the disbursement of guaranteed funds. The provision of such financing to the resolution 
fund would constitute a government task, and any such loan or financing by NBP  would therefore 
breach the monetary financing prohibition under the Treaty . For the sake of legal certainty, t he ECB 
therefore recommends that an explicit  provision be inserted into the draft law specifying that the 
short -term credit granted under Article 273 may not be used to supplement the bank resolution 
fund, the credit unions’ resolution fund or for  any other  resolution purposes. Directive 2 014/59/EU  
provides that resolution costs should in principle be borne by shareholders and creditors and, where these funds are not sufficient, by financing arrangements. In line with the monetary financing prohibition, NCBs may not fund these financing arr angements
7 and replenish the resolution fund by 
providing credit to it.  
 
5. Cooperation and exchange of information  between the Fund and other relevant authorities, 
including NBP  
5.1 The ECB notes that the draft law provides for cooperation between the Fu nd (as the resolution 
authority and the deposit guarantee scheme administrator ) and other relevant authorities, including 
NBP, in performing their respective tasks, each keeping in mind the impact of their performance on 
the other. In particular, th is is r eflected in Section V of the draft law refer ring to the information 
requirements, data exchange and protection.  
5.2 The ECB welcomes these provisions as they will enable the relevant  entities to perform their 
statutory tasks  in a coordinated fashion. In particular , they facilitate the performance by  NBP of its 
financial stability mandate.  Such arrangements  are also in line with current ECB doctrine and 
requirements under Directive 2014/59/EU , pursuant to which  Member States must ensure that, 
where the centr al bank is not itself the resolution authority, the competent authority  (i.e. the 
authority responsible for the prudential supervision of institutions ) and the resolution authority 
engage in an adequate exchange of information with the NCB8. 
 
                                                 
6  See the ECB’s June 2014 Convergence Report, p. 30. 
7  See paragraph 3.4 of ECB Opinion CON/2012/99, paragraph 4 of ECB Opinion CON/2011/103, paragraph 4.3 of 
ECB Opinion CON/2011/93, paragraph 3.6 of ECB Opinion CON/2011/39 and paragraph 3.2 of ECB Opinion 
CON/2008/59.  All ECB Opinions are available on the ECB’s website at www.ecb.europa.eu. See the ECB’s 
June 2014 Convergence Report, p. 28.   
8  See paragraph 3.1 of ECB Opinion CON/2012/99.  
ECB -PUBLIC  
5 6.  Extending  the resolution regime to credit unions  
6.1 Under the draft law, Polish credit unions will be subject to both the regular deposit guarantee 
scheme and the resolution scheme. T o that end,  the draft law  creates separate sub- funds, i.e. the 
credit unions’ guarantee fund and the credit unions’ resolution fund,  and includes specific 
provisions related to the resolution of credit unions and safeguarding their depositors.  
6.2 The ECB was consulted on the existing Law on credit unions several times9. In its opinions , the 
ECB especially recommended the inclusion of credit unions in NBP’s minimum reserves regime 
and within the scope of KNF’s financial supervision10. The ECB notes that these elements are now 
part of the credit unions’ regulatory framework , together with the inclusion of credit unions in the 
current deposit guarantee scheme.  
6.3 The ECB understands that the draft law aims to complement the existing legal provisions in order 
to establish a comprehensive legal framework for credit unions in view of their in creasing 
importance in the Polish banking sector. In view of the above, the ECB welcomes  the extens ion of 
the resolution regime to credit unions, as a natural consequence of their being subject to KNF 
supervision and the deposit guarantee scheme.  
 
This opinion will be published on the ECB’s website.  
  
Done at Frankfurt am Main, 28 May 2015.  
 
[signed]  
 The President of the ECB  
Mario DRAGHI  
                                                 
9 See ECB Opinions CON/2009/60 and CON/2013/5.   
10 See paragraphs 2.5 and 2.7 of ECB Opinion CON/2009/60. See also paragraph 2.1 of ECB Opinion CON/2013/ 5.