Opinion of the European Central Bank of 9 October 2007 at the request of the Polish Minister for Finance on a draft law amending the Law on the supervision of financial markets (CON/2007/31)
Date: 2007-10-09
Institutions: European Central Bank
Subjects: Poland, banking supervision, central bank, financial supervision, national law

EN 

OPINION OF THE EUROPEAN CENTRAL BANK 

of 9 October 2007 

at the request of the Polish Minister for Finance  

on a draft law amending the Law on the supervision of financial markets 

(CON/2007/31) 

Introduction and legal basis 

On  16  August  2007  the  European  Central  Bank  (ECB)  received  a  request  from  the  Polish  Minister  for 

Finance for an opinion on a draft law amending the Law of 21 July 2006 on the supervision of financial 
markets1. On 23 August 2007, the ECB received a revised version of a draft law amending the Law on the 

supervision of financial markets (hereinafter the ‘draft law’). 

The  ECB’s  competence  to  deliver  an  opinion  is  based  on  Article  105(4)  of  the  Treaty  establishing  the 

European  Community  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 Narodowy Bank Polski (NBP) and 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  The  draft  law  modifies  certain  elements  of  the  supervisory  reform,  which  was  initiated  in 

September 2006  and  originally  scheduled  to  be  implemented  by  1  January  2008.  Prior  to  the 

introduction of the reform, financial supervision was carried out by sectoral supervisors, including, 
for  the  banking  sector,  the  Banking  Supervision  Commission3  chaired  by  NBP’s  President  and 

assisted by the General Inspectorate for Banking Supervision (a specialised supervisory unit within 

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Dz.U. of 4 September 2006 No 157, Item 1119, as amended (hereinafter the ‘Law on the supervision of financial markets’). 
OJ L 189, 3.7.1998, p. 42. 
The composition of the Banking Supervision Commission before 19 September 2006 was as follows: (i) NBP’s President, 
as Chairman; (ii) the Minister for Finance or his representative, as Vice-Chairman; (iii) another representative appointed by 
the Minister for Finance; (iv) the representative of the President of the Republic; (v) the Chairman of the Bank Guarantee 
Fund; (vi) the Chairman of the Securities and Exchange Commission or deputy thereof; and (vii) the General Inspector for 
Banking Supervision (Article 26(1) of the Law on Narodowy Bank Polski of 29 August 1997 (consolidated text: Dz.U. of 
1 April 2005 No 1, Item 2, as amended; hereinafter the ‘NBP Statute’)) . 

 
 
 
 
 
                                                 
NBP)4. The reform introduced a single consolidated supervisory authority, the Financial Supervision 
Commission (FSC)5, which is gradually taking over supervisory responsibility for all segments of the 
financial  markets6.  One  result  of  this  process  is  that  the  Banking  Supervision  Commission  is 

scheduled to be dissolved on 31 December 2007, following which its powers will be allocated to the 
FSC7. At the same time, the supervisory staff of the General Inspectorate for Banking Supervision 
will  be  transferred  to  the  FSC’s  office8.  During  the  transitory  period  from  19  September  2006  to 

31 December  2007  the  FSC  Chairman  replaces  NBP’s  President  as  the  Banking  Supervision 
Commission Chairman9.  

1.2  The draft law modifies the supervisory framework as follows10: 

(a) 

the transfer of banking supervision responsibility from the Banking Supervision Commission 
to  the  FSC  will  be  delayed  until  1  January  201311.  During  the  transitory  period  from  the 
effective date of the draft law12 until 31 December 2012: (i) NBP’s President will take over as 
Chairman  of  the  Banking  Supervision  Commission13;  and  (ii)  the  General  Inspectorate  for 

Banking  Supervision  will  remain  within  NBP  and  will  assist  the  Banking  Supervision 
Commission in its work14; 

(b) 

as of the effective date of the draft law, the FSC will include three FSC Vice-Chairmen who 

will be appointed and dismissed by the President of the Council of Ministers on the motion of 

the Minister for Finance, NBP’s President and the FSC Chairman, respectively (currently the 
two FSC Vice-Chairmen are appointed and dismissed on the motion of the FSC Chairman)15; 

and 

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14  
15  

Article 25(1) and Article 29 of the NBP Statute. 
The  current  composition  of  the  FSC  is  as  follows:  (i)  the  FSC  Chairman,  appointed  by  the  President  of  the  Council  of 
Ministers  for  a  five  year  term  in  office;  (ii)  two  FSC  Vice-Chairmen,  appointed  and  dismissed  by  the  President  of  the 
Council  of  Ministers  on  the  motion  of  the  FSC  Chairman;  (iii)  the  minister  responsible  for  financial  institutions  or  his 
representative;  (iv)  the  minister  responsible  for  social  security  (participating,  among  other  things,  in  the  regulation  of 
pension funds) or his representative; (v) NBP’s President or the delegated Vice-President; and (vi) the representative of the 
President of the Republic (Article 5 and Articles 7 to 9 of the Law on the supervision of financial markets). 
The  FSC  was  established  on  19  September  2006  and  on  this  date  took  over  non-banking  supervision  responsibilities 
(supervision of capital markets and insurance firms/pension funds: Article 67(1) together with Article 65(1) of the Law on 
the supervision of financial markets). 
Articles 66 and Article 67(2) of the Law on the supervision of financial markets. 
Article 74(4) together with Article 75(2) of the Law on the supervision of financial markets. 
Article  77(2)  of  the  Law  on  the  supervision  of  financial  markets.  The  Law  provides  that  NBP’s  President  (or  delegated 
Vice-President) will continue to participate in the Banking Supervision Commission as an ordinary member. 
The  proposed  amendments  affect  the  Law  on  the  supervision  of  financial  markets  as  well  as,  among  others,  the  NBP 
Statute  and  the  Law  on  banking  of  29  August  1997  (consolidated  text:  Dz.U.  of  12  June  2002  No  72,  Item  665,  as 
amended, hereinafter the ‘Law on banking’). 
Article 1(6) of the draft law, amending Article 67(2) of the Law on the supervision of financial markets. 
Entry into force is 14 days after the draft law is published (Article 17). 
Article  14(1)  together  with  Article  1(12)  of  the  draft  law,  which  repeals  Article  77(2)  of  the  Law  on  the  supervision  of 
financial markets. 
Article 1(5) of the draft law, amending Article 66(2) of the Law on the supervision of financial markets. 
Article 1(1) and (2) of the draft law, amending Articles 5(1) and 9(1) of the Law on the supervision of financial markets 
(the change does not have any foreseen end date). The candidates for the positions of FSC Vice-Chairmen have to comply 
with the same statutory criteria as the candidate for the position of the FSC Chairman. The FSC Chairman will be consulted 
on candidates for the FSC Vice-Chairmen presented by the Minister for Finance and NBP’s President. 

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(c)  NBP will become responsible for establishing a Financial Stability Committee, which will act 

on the basis of an agreement between NBP, the Banking Supervision Commission, the FSC, 

the  Bank  Guarantee  Fund  and  the  Minister  for  Finance,  with  the  view  to  ensuring  the 

exchange  of  information  and  coordination  between  the  parties  to  the  agreement  as  regards 
implementation of their respective statutory tasks16. 

2. 

Central bank contribution to prudential supervision 

2.1  Organisation of the supervisory framework 

The ECB commented on the original reform proposals in 200617. In its opinions, the ECB stressed its 

positive  assessment  of  the  model  of  prudential  supervision  existing  in  Poland  prior  to 

September 2006,  in  which  banking  supervision  was  carried  out  by  the  Banking  Supervision 

Commission,  chaired  by  NBP’s  President  and  assisted  by  the  General  Inspectorate  for  Banking 

Supervision. The ECB considered this model particularly well-suited to facilitate NBP’s contribution 

to  the  prudential  supervision  of  credit  institutions  and  to  the  stability  of  the  financial  system,  as 

required  under  Article  105(5)  of  the  Treaty  in  the  context  of  the  future  introduction  of  the  euro  in 
Poland18. This is in particular relevant for financial markets such as the Polish one, where banking is 
a  dominant  sector  and  where  banks  remain  key  agents  of  financial  intermediation19.  The  ECB 

emphasised the central banks’ pivotal role in the financial system on many occasions, stressing that 

their close involvement in prudential supervision is necessary to allow central banks to adequately 
monitor  financial  stability  risks20.  Therefore,  the  ECB  welcomes  the  draft  law  provisions  that 

strengthen  NBP’s  involvement  in  financial  market  supervision  by  reassigning  the  chairmanship  of 

the  Banking  Supervision  Commission  to  NBP’s  President.  Moreover,  by  maintaining  NBP’s 

President  as  a  member  of  the  FSC  and  giving  him  the  power  to  designate  one  of  the  FSC  Vice-

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17  

18  
19  

20  

Article 4(2)(b) of the draft law, adding Article 131(8) to (11) to the Law on banking. The Financial Stability Committee 
will  include  the  following  members:  (i)  NBP’s  President;  (ii)  the  General  Inspector  for  Banking  Supervision;  (iii)  one 
further  representative  appointed  by  NBP’s  President;  (iv)  the  minister  responsible  for  financial  institutions  or  his 
representative; (v) the FSC Chairman; (vi) the Chairman of the Management Board of the Bank Guarantee Fund; and (vii) 
the representative of the President of the Republic. 
ECB  Opinion  CON/2006/15  of  9  March  2006  at  the  request  of  the  Polish  Minister  of  Finance  on  a  draft  Law  on  the 
supervision  of  financial  institutions  (an  early  version  of  the  Law  on  the  supervision  of  financial  markets).  The  ECB 
specifically  recommended:  (i)  that  NBP  appoint  members  to  the  supervisory  authority’s  decision-making  body;  (ii) 
establishing  express  duties  of  cooperation  and  information-sharing  between  NBP  and  the  supervisory  authority;  and  (iii) 
that NBP participate in major supervisory decisions or in selected types of supervisory operations (see paragraphs 2.3, 2.4, 
3.2,  3.3  and  3.5  of  Opinion  CON/2006/15). The  ECB  had the  opportunity to  repeat its  comments  on  the  reform  in  ECB 
Opinion CON/2006/39 of 2 August 2006 at the request of Poland’s Sejm Marshall on a draft law amending the Law on 
Narodowy Bank Polski. 
See paragraph 3.1.1 of Opinion CON/2006/15 and paragraph 4.1 of Opinion CON/2006/39. 
See  paragraph  2.1.4  of  Opinion CON/2006/15;  see  also  European  Central  Bank,  ‘Financial  Sectors  in  the  EU  Accession 
Countries’, 19 August 2002, p. 172 and ‘Banking structures in the new EU Member States’, 31 January 2005, p. 38. Both 
publications are available on the ECB’s website at www.ecb.int. 
See, e.g. paragraph 6 of ECB Opinion CON/2003/23 of 24 October 2003 at the request of the Ministry of Finance of the 
Netherlands on a draft law on provisions concerning the merger of De Nederlandsche Bank and the Pensions and Insurance 
Supervisory  Authority  Foundation;  paragraph  4  of  ECB  Opinion  CON/2001/10  of  25  May  2001  at  the  request  of  the 
Austrian  Ministry  of  Finance  on  a  draft  article  of  the  Federal  law  establishing  and  organising  the  financial  market 
supervisory authority (title shortened); and paragraph 2.1.2 of Opinion CON/2006/15. 

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Chairmen,  the  draft  law’s  provisions  will  enhance  coordination  between  NBP  and  the  FSC, 
facilitating consistent macro-prudential monitoring of the increasingly integrated financial markets21. 

2.2  Ensuring a stable, long-term supervisory environment 

The explanatory memorandum states that the additional delay (until 1 January 2013) in transferring 

banking  supervision  responsibility  from  the  Banking  Supervision  Commission  to  the  FSC  is 

necessary  in  order  to,  among  other  things:  (i)  ensure  the  smooth  continuation  of  the  follow-up 
supervisory  work  related  to  the  transposition of  the  Capital  Requirements  Directives  (CRD)22;  and 

(ii) mitigate operational risks arising in connection with the supervisory reform process, in particular 
as regards maintaining the expertise of NBP’s supervisory staff23. The consulting authority’s remarks 
mirror  the  ECB’s  concerns  which  were  expressed  in  its  earlier  opinions24.  It  is  important  to 

emphasise  that  the  supervisory  reform  process  should  ensure  the  uninterrupted  continuation  of 

NBP’s  involvement  in  prudential  supervision  as  well  as  sustainability  of  the  supervisory  expertise 

developed  by  NBP  staff.  As  already  noted  by  the  ECB  in  the  specific  context  of  Member  States 

preparing for the introduction of the euro, the independence, credibility and experience that national 

central  banks  can  contribute  to  the  conduct  of  prudential  policies  should  be  recognised  as  an 
important institutional asset25.  

2.3 

In  this  context,  the  provisions  of  the  draft  law  concerning  the  transfer  of  the  Banking  Supervision 

Commission’s  powers  to  the  FSC  on  1  January  2013  and  the  coincident  assignment  of  NBP’s 
supervisory  staff  to  FSC’s  office26  may  not  provide  the  necessary  incentives  for  NBP  and  its 

supervisory  staff  to  continue  developing  the  supervisory  function.  Therefore,  the  temporary 

arrangements  provided  for  by  the  draft  law,  while  mitigating  the  above  mentioned  short-  and 

medium-term risks, may not ensure the creation of a stable, long-term supervisory environment. An 

essential precondition for an efficient and effective supervisory framework is its capacity to build a 

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25  

26  

See, e.g. paragraph 5 of ECB Opinion CON/2004/16 of 11 May 2004 at the request of the Italian Ministry of Economic 
Affairs and Finance on a draft law on the protection of savings and paragraph 2.1.3 of Opinion CON/2006/15. 
Section  2  of  the  explanatory  memorandum  to  the  draft  law.  The  ‘Capital  Requirements  Directives’  are  Directive 
2006/48/EC  of the  European  Parliament and  of  the  Council of  14  June  2006  relating to  the  taking  up  and  pursuit  of  the 
business of credit institutions (recast) (OJ L 177, 30.6.2006, p. 1). Directive as last amended by Directive 2007/44/EC (OJ 
L 247, 21.9.2007, p.1) and Directive 2006/49/EC of the European Parliament and of the Council of 14 June 2006 on the 
capital  adequacy  of  investment  firms  and  credit  institutions  (recast)  (OJ  L  177,  30.6.2006,  p.  201).  The  Capital 
Requirements Directives have been implemented in Poland by the Law of 26 January 2007 amending the Law on banking 
(Dz.U. of 9 March 2007 No 42, Item 272) and by resolutions of the Banking Supervision Commission (Nos 1 to 6/2007 of 
13 March 2007). 
Section 3 of the explanatory memorandum to the draft law. 
The  ECB  pointed  out  risks  related  to  interrupting  long-term  supervisory  work  stemming  from  the  CRD  reform  and 
emphasised  the  importance  of  preserving  continuity  in  supervisory  expertise  possessed  by  the  staff  of  NBP’s  General 
Inspectorate for Banking Supervision (see paragraphs 6.1 and 6.3 of Opinion CON/2006/1 and paragraph 2.2 of Opinion 
CON/2006/39). 
See  paragraph  7  of  ECB  Opinion  CON/2004/31  of  22  September  2004  at  the  request  of  Národná  banka  Slovenska  on  a 
draft law on the supervision of the financial market and on amendments to certain laws. 
NBP’s supervisory staff of the General Inspectorate for Banking Supervision will be transferred to the FSC’s office as of 1 
January  2013  and  their  employment  contracts  will  expire  after  a  six-month  period,  unless  they  receive  and  accept  new 
employment  conditions  (Article  1(9)  and  (10)  of  the  draft  law,  amending  Articles  74(4)  and  75(2)  of  the  Law  on  the 
supervision of financial markets). 

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long-term  relationship  of  mutual  trust  between  supervisors  and  market  participants  providing  the 

latter  with  confidence  in  the  expertise  and  competence  of  the  supervisory  authority.  Hence,  any 

reform of the institutional supervisory setting should aim at comprehensive long-term arrangements 

that are conducive to a stable economic climate.  

2.4  This opinion is based on the most recent version of the draft law, which the ECB understands may 

not be the final legislative proposal concerning the supervisory reform. In case new legislative drafts 

are  proposed  which  constitute  ‘draft  legislative  provisions’  within  the  meaning  of  Decision 

98/415/EC,  the  ECB  should  be  consulted  and  stands  ready  to  provide  its  comments.  This  is 

particularly  important  where  newly  proposed  drafts  fundamentally  change  legislation  in  areas  in 
which the ECB has a specific interest27. 

2.5 

Supervision and oversight over payment and settlement infrastructure 

The  draft  law  corrects  the  provisions  of  the  law  transposing  Directive  98/26/EC  of  the  European 

Parliament  and  of  the  Council  of  19  May  1998  on  settlement  finality  in  payment  and  securities 
settlement  systems28  that  refer  to  a  defunct  sectoral  supervisor  as  the  body  supervising  securities 

settlement systems. The draft law corrects these references by inserting the name of the FSC in the 
relevant  provisions,  while  not  further  affecting  any  substantive  rules29.  The  ECB  welcomes  the 

correction  and  notes  that  it  would  need  to  be  further  consulted  on  any  substantive  legislative 

proposals in this area falling within its scope of competence; this applies in particular to provisions 
on the supervision and oversight of market infrastructure30. 

3. 

Establishment of the Financial Stability Committee 

3.1  The  ECB  welcomes  the  draft  law  provisions  under  which  NBP  will  establish  a  Financial  Stability 
Committee31.  The  explanatory  memorandum  to  the  draft  law  explains  that  this  is  necessary  in  the 

context  of  building  the  institutional  framework  for  the  prevention,  forecasting  and  management  of 

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31  

See paragraph 3 of Opinion CON/2004/16.  
OJ  L  166,  11.6.1998,  p.  45.  The  Directive  was  transposed  by  the  Law  of  24  August  2001  on  settlement  finality  in  the 
payment and settlement systems and on the supervision of such systems (Dz.U. of 25 October 2001 No 123, Item 1351, as 
amended, hereinafter, the ‘Law on settlement finality’). 
Article  1(15)  of  the  draft  law  amends  Article  82(2)  of  the  Law  on  the  supervision  of  financial  markets  by  deleting  the 
reference to the Law on settlement finality from the list of legislative provisions to be amended on the date the Banking 
Supervision Commission is dissolved. Consequently, the day on which the draft law enters into force will be the day the 
changes to the Law on settlement finality enter into force. 
See the fifth indent of the Article 2 of Council Decision 98/415/EC on the consultation of the European Central Bank by 
national authorities regarding draft legislative provisions (OJ L 189, 3.7.1998, p. 42), requiring consultation with the ECB 
on draft legislative provisions concerning ‘payment and settlement systems’. Article 1(2) of Decision 98/415/EC specifies 
that  the  term  ‘draft  legislative  provisions’  does  not  include  ‘draft  provisions  the  exclusive  purpose  of  which  is  the 
transposition  of  Community  directives  into  national  law’.  In  May  2007,  a  legislative  draft  was  submitted  to  the  Polish 
Parliament which substantially amended provisions of the Law on settlement finality, including the definition of a ‘system’ 
and the scope of the President of NBP’s powers in the area of the supervision of payment and settlement infrastructure (see 
Article  13  of  the  draft  law  on  amendments  to  the  law  on  trading  in  financial  instruments  and  to  certain  other  laws,  as 
submitted by the Council of Ministers to Sejm (Parliament) on 23 May 2007 (Sejm print No 1789)). The legislative process 
related to this legislative draft is currently at a standstill. 
Article 4(2)(b) of the draft law, adding Article 131(8) to (11) to the Law on banking. See also paragraph 3.4 of Opinion 
CON/2006/15. 

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financial crises. The ECB supports this statutory intent; however, the ECB recommends that the legal 

framework  of  the  Financial  Stability  Committee  be  more  precisely  formulated  to  ensure  that  the 

effectiveness of the coordination process is not affected by possible uncertainties regarding the role 
of  the  Committee  and  its  participating  bodies32.  In  particular,  it  should  be  clarified  that  the  tasks 

attributed  to  this  Committee  must  not  compromise  NBP’s  independence  with  regard  to  its  central 

bank  tasks.  In  addition,  the  NBP  Statute  should  expressly  recognise  NBP’s  responsibility  for 

contributing to financial stability by monitoring and assessing the financial system as a whole, which 
is a separate function from financial supervision and regulation33.  

3.2  Moreover, the composition of the Committee should reflect the contribution of each of its members 

in  respect  of their  specific  supervisory powers;  the  existing discrepancy  between  the  list of parties 

adopting  the  agreement  establishing  the  Financial  Stability  Committee  and  the  list  of  Committee 
members should be resolved34. At the same time, the Financial Stability Committee tasks should be 
more  clearly  specified35.  Finally,  the  current  provisions  relating  to  information-sharing  within  the 
Committee36 should be complemented with appropriate information disclosure standards consistent 
with Community law provisions regulating the exchange of supervisory and statistical information37 
and  the  NBP  Statute38.  Such  provisions  should  also  be  capable  of  facilitating  the  operation  of 

relevant EU Memoranda of Understanding that the Polish authorities are signatories to.  

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34  

35  

36  

37  

38  

See paragraph 11 of ECB Opinion CON/2002/13 of 24 April 2002 at the request of the Belgian Ministry of Finance on a 
draft proposal for a law on prudential supervision of the financial sector and financial services. 
See paragraph 2.2 of Opinion CON/2006/15 and paragraph 4.2 of Opinion CON/2006/39. 
In  particular,  the  Banking  Supervision  Commission  is  a  party  to  the  agreement  establishing  the  Committee  although  its 
representation  in  the  Committee  is  not  clearly  set  out  (the  participation  of  NBP’s  President  in  the  Committee  is  not 
expressly linked to his chairmanship of the Banking Supervision Commission) (paragraphs (8) and (9) added to Article 131 
of the Law on banking by Article 4(2)(b) of the draft law). 
Article 131(8) of the Law on banking, as added by Article 4(2)(b) of the draft law limits the Financial Stability Committee 
tasks  to  co-ordination  and  information-sharing.  However,  Article  131(10)(1)  of  the  Law  on  banking,  as  added  by  the 
Article 4(2)(b) of the draft law makes it possible for the Financial Stability Committee to ‘adopt arrangements’ in relation 
to the statutory tasks of the parties establishing the Committee. Furthermore, the explanatory memorandum to the draft law 
seems to give the Committee an active role in ‘managing’ financial crises. 
See Article 1(3) of the draft law adding Article 17(5) to the Law on the supervision of financial markets (data disclosure by 
the  FSC);  Article  3  of  the  draft  law,  amending  Article  38(10)  of  the  Law  of  14  December  1994  on  the  Bank  Guarantee 
Fund  (consolidated  text:  Dz.U.  of  19  April  2007  No  70,  Item  474)  (data  disclosure  by  the  Bank  Guarantee  Fund);  and 
Article 5(2) of the draft law, adding Article 23(8) and (9) to the NBP Statute (data disclosure by NBP). 
See,  in  particular,  Articles  44  to  52  of  Directive  2006/48/EC;  Article  13  of  Council  Regulation  (EC)  No  322/97  of 
17 February 1997 on Community Statistics (OJ L 52, 22.2.1997, p. 1). Regulation as last amended by Regulation (EC) No 
1882/2003  of  the  European  Parliament  and  the  Council  (OJ  L  284,  31.10.2003,  p.  1);  Article  8(1)  to  (3)  of  Council 
Regulation  (EC)  No  2533/98  of  23  November  1998  concerning  the  collection  of  statistical  information  by  the  European 
Central Bank (OJ L 318, 27.11.1998, p. 8); and Article 3 of Council Regulation (Euratom, EEC) No 1588/90 of 11 June 
1990 on the transmission of data subject to statistical confidentiality to the Statistical Office of the European Communities 
(OJ L 151, 15.6.1990, p. 1). Regulation as last amended by Regulation (EC) No 1882/2003 of the European Parliament and 
of the Council (OJ L 284, 31.10.2003, p. 1). 
See Article 23(6) and (7) of the NBP Statute.  

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This opinion will be published on the ECB’s website. 

Done at Frankfurt am Main, 9 October 2007. 

[signed] 

The Vice-President of the ECB 

Lucas D. PAPADEMOS 

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