Opinion of the European Central Bank of 13 November 2007 at the request of the President of Narodowy Bank Polski on a draft resolution amending Resolution 15/2004 of the Management Board of Narodowy Bank Polski of 13 April 2004 on the rules and procedures for calculating and holding minimum reserves by banks (CON/2007/34)
Date: 2007-11-13
Institutions: European Central Bank
Subjects: Poland, foreign-exchange reserves, monetary policy, national law

EN 

OPINION OF THE EUROPEAN CENTRAL BANK 

of 13 November 2007 

at the request of the President of Narodowy Bank Polski  

on a draft resolution amending Resolution 15/2004 of the Management Board of Narodowy Bank 

Polski of 13 April 2004 on the rules and procedures for calculating and holding minimum reserves 

by banks 

(CON/2007/34) 

Introduction and legal basis 

On  28  September  2007  the  European  Central  Bank  (ECB)  received  a  request  from  the  President  of 

Narodowy Bank Polski (NBP) for an opinion on a draft resolution amending Resolution 15/2004 of the 

Management  Board  of  Narodowy  Bank  Polski  of  13  April  2004  on  the  rules  and  procedures  for 
calculating and holding minimum reserves by banks1 (hereinafter the ‘draft resolution’). 

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

European  Community  and  Article 2(2)  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 resolution relates to an instrument of monetary policy of a non-participating Member State. 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 resolution 

1.1  The  draft  resolution  complements  NBP’s  current  minimum  reserves  regime  by  providing  for  the 

treatment  of  minimum  reserves  held  by  a  bank  undergoing  division  (hereinafter  the  ‘divided 
bank’)3.  The  need  for  these  rules  stems  from  recent  changes  made  to  the  Polish  banking  regime, 

which makes it possible for banks established in Poland in the form of a joint stock company to be 

divided.  Under  the  applicable  procedure,  part  of  the  divided  bank’s  assets  and  liabilities  are 

1 
2 
3  

Dz.Urz. NBP of 23 April 2004 No 3, Item 4, as amended.  
OJ L 189, 3.7.1998, p. 42.  
Credit institutions registered in Poland are legally referred to as ‘banks’ (this definition does not cover the Polish version 
of  credit  unions,  operating  pursuant  to  the  Law  of  14  December  1995  on  cooperative  savings  and  loan  associations 
(Dz.U.  of  4  January  1996  No 1,  Item  2,  as  amended)).  The  term  ‘credit  institutions’  under  Polish  law  only  relates  to 
European  Economic  Area  (EEA)  credit  institutions  from  outside  Poland.  Non-EEA  credit  institutions  are  referred  to 
under Polish law as ‘foreign banks’ (Article 2, Article 4(1), Article 4(3) and Articles 4(17) to (20) of 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’)).  

 
 
 
 
                                                 
transferred  to  another  existing  or  newly  established  entity  or  entities,  i.e.  the  divided  bank 
continues  to  operate  after  the  division,  retaining  part  of  its  original  assets4.  The  recipient  entities 
can be any EEA credit institution that obtains necessary supervisory approval5.  

1.2  The draft resolution provides the following rules for calculating minimum reserves in relation to a 

divided bank and the banks receiving the assets and liabilities of the divided bank (hereinafter the 

‘recipient banks’): 

(i) 

In  the  reserve  maintenance  period  in  which  the  division  takes  effect,  the  divided  bank’s 

minimum  reserve  obligations  are  allocated  to  the  banks  participating  in  the  division  (the 

recipient bank(s) and the divided bank), in proportion to the part of the original reserve base 

of the divided bank that is allocated to each of them; if a recipient bank already exists, such 

newly  allocated  minimum  reserves  obligations  increase  the  amount  of  its  own  minimum 

reserve requirements for that period. 

(ii) 

In  the  following  maintenance  periods,  each  bank  participating  in  the  division  continues  to 

bear its (additional) minimum reserve obligations in proportion to the part of the reserve base 

allocated  to  it  as  a  result  of  the  division,  until  such  time  as  such  bank  submits  complete 
reporting data regarding its total updated reserve base figures6.  

2. 

The ECB’s comments 

2.1  The  draft  resolution  provisions  are  similar  to  the  ECB’s  own  minimum  reserve  rules  that  apply 
when a credit institution is subject to division7. The ECB welcomes this approach as it takes into 

account the need for the gradual adaptation of the Polish legislative framework in view of the future 
adoption  of  euro8.  However,  the  following  elements  of  the  draft  resolution  should  be  further 

clarified: 

(i) 

paragraph  9(3a)  should  specify  that  the  maintenance  period  referred  to  in  that  provision  is 

the maintenance period in which the division takes effect, rather than generally referring to 

the maintenance period in which a bank is ‘subject to division’ (which could be interpreted 

4  

5  

6  
7  

8  

Article  124c  of  the  Law  on  banking,  as  added  by  the  Article  1(3)  of  the  amending  law  of  18  October  2006  (Dz.U.  of 
19 October  2006  No  190,  Item  1401),  together  with  Article  529(1)(4)  of  the  Commercial  Companies  Code  of 
15 September  2000  (Dz.U.  of  8  November  2000,  No  94,  Item  1037,  as  amended).  The  ECB  commented  on  the  early 
version of the above referred amendments to the Law on banking in ECB Opinion CON/2006/31 of 20 June 2006 at the 
request of the Polish Minister of Finance on a draft law amending the Law on banking. 
Article  124c(2)  of  the  Law  on  banking.  Supervisory  approval  for  a  proposed  division  may  be  denied  under  certain 
circumstances. 
Paragraph 9(3a) and (3b) of Resolution 15/2004, as added by the paragraph 1 of the draft resolution. 
See  Article  13(3)  and  (4)  of  Regulation  ECB/2003/9  of  12  September  2003  on  the  application  of  minimum  reserves 
(OJ L 250, 2.10.2003, p. 10) together with Article 19 of the Statute of the European System of Central Banks and of the 
European Central Bank. The ECB’s concept of ‘division’ as regards a credit institution differs from the one that applies 
under  the  draft  resolution  in  that  the  ECB  rules  assume  that  all  assets  and  liabilities  of  a  divided  credit  institution  are 
acquired  by  the  recipient  entities,  i.e.  the  divided  credit  institution  ceases  to  exist  after  the  division  (Article  1  of 
Regulation ECB/2003/9). 
See also paragraph 5 of ECB Opinion CON/2005/14 of 31 May 2005 at the request of the Magyar Nemzeti Bank on a 
draft regulation on the calculation, method of allocation and placement of minimum reserves. 

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as  potentially  spanning  over  several  maintenance  periods  in  which  activities  preceding  the 

legally defined date of division take place). In this context, the draft resolution may refer to 

the maintenance period in which the legally defined ‘date of division’ occurs (as specified in 

Article 530(2) of the Commercial Companies Code); 

(ii) 

the  draft  resolution  should  specify  the  way  in  which  current  account  holdings9  held  by  a 

divided bank from the start of the maintenance period in which the division takes effect until 

the  day  the  division  takes  effect  are  to  be  allocated  between  the  banks  participating  in  the 

division; 

(iii)  

the draft resolution should expressly state the manner in which the banks participating in a 

division  apply  the  general  lump  sum  allowance  provisions  of  NBP’s  minimum  reserves 

regime  (a  fixed  amount  which  an  institution  deducts  in  the  calculation  of  its  reserve 

requirement)  in  the  maintenance  period  in  which  the  division  takes  effect  and  the 

maintenance  period  immediately  following  the  maintenance  period  in  which  the  division 
takes effect10. Such express regulation of the required treatment of the lump sum allowance 

in the case of the division of a credit institution is contained in the ECB’s minimum reserve 
regime, which may be used as a model in this regard11. 

2.2  The ECB limits its comments in this opinion to NBP’s minimum reserve regime as it relates to the 

division  of  banks.  It  notes,  however,  that  parallel  minimum  reserve  provisions  relating  to  bank 
acquisitions  and  mergers  should  be  harmonised  with  the  draft  resolution  provisions12.  This  is 

particularly  relevant  to  corporate  restructurings  involving  interlinked  merger  and  division 

operations affecting the same group of banks. In such situations, the applicable rules should ensure 

consistent treatment of the affected banks’ minimum reserve holdings throughout the restructuring 

process.  

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

Done at Frankfurt am Main, 13 November 2007. 

[signed] 

The President of the ECB 

Jean-Claude TRICHET 

9  
10  

11  
12  

Funds held by the credit institution in its reserve account at the central bank.  
Paragraph  4(1)  of  Resolution  15/2004  together  with  the  Article  39a  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). 
See Article 13(3), last sentence and Article 13(4), last sentence of Regulation ECB/2003/9. 
See paragraphs 9(1) to (3) of Resolution 15/2004. See also Article 13(1) and (2) of the Regulation ECB/2003/9. 

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