Opinion of the European Central Bank of 1 September 2008 at the request of the Polish Minister for Finance on a draft law on the Financial Stability Committee (CON/2008/39)
Date: 2008-09-01
Institutions: European Central Bank
Subjects: Poland, exchange of information, financial stability, financial supervision, national law

EN 

OPINION OF THE EUROPEAN CENTRAL BANK 

of 1 September 2008 

at the request of the Polish Minister for Finance  

on a draft law on the Financial Stability Committee 

(CON/2008/39) 

Introduction and legal basis 

On  10  July  2008  the  European  Central  Bank  (ECB)  received  a  request  from  the  Polish  Minister  for 

Finance for an opinion on a draft law on the Financial Stability Committee (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 provisions1, 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 will establish the Financial Stability Committee (hereinafter the ‘Committee’) in the 

following  composition:  (i)  the  Minister  for  Finance  (as  Chairman);  (ii)  the  NBP  President;  and 
(iii) the  Chairman  of  the  Financial  Supervision  Commission  (FSC)2.  The  Committee  is  to  pursue 

the  objective  defined  in  the  draft  law  as  ‘fostering  and  protection  of  the  stability  of  the  national 

financial system through the exchange of information, opinions and assessments of the situation in 
the  financial  system  in  the  country  and  abroad  and  the  coordination  of  activities  in  this  area’3. 
Acting unanimously, the Committee may adopt ‘positions’ and ‘conclusions’4. The Committee may 

also establish working groups, composed of staff from the Ministry of Finance, NBP and the FSC 
(hereinafter the ‘three represented institutions’) as well as invited external experts5. The Committee 

1  
2 

3 
4 
5 

OJ L 189, 3.7.1998, p. 42. 
All  members  are  required  to  participate  in  person  in  meetings  of  the  Committee,  with  the  possibility  to  indicate  an 
alternate in the event that participation in person is impossible. Any member may also invite other persons to participate 
in the meetings, in an advisory capacity (see Articles 3-4 of the draft law). The draft law will supersede as the legal basis 
for  the  establishment  of  the  Committee  the  Memorandum  of  Understanding  of  21  December  2007,  in  which  the 
abovementioned  parties  agreed  on  the  establishment  of  the  Financial  Stability  Committee  (see  press  releases  of  27 
December 2007 and 8 February 2008, as published on the NBP website, www.nbp.pl). 
See Article 1(2) of the draft law. 
See Article 6 of the draft law. ‘Conclusions’ are not formal administrative decisions.  
See Article 7 of the draft law. 

 
 
 
 
                                                 
meetings are convened by the Minister for Finance, at least once every 6 months, and are prepared 
by Ministry of Finance staff6. 

1.2  Specifically, the Committee’s tasks will include:  

(i) 

Analytical  activity,  i.e.  producing  assessments  of  the  situation  in  the  national  financial 

system  and  on  international  markets,  and  ensuring  a  proper  flow  of  information  between 

members of the Committee regarding major events and trends which could constitute a threat 
to the stability of the national financial system7;  

(ii)  Development of crisis management procedures to be applied in the event of a threat to the 

stability of the national financial system. After adoption, the crisis management procedures 
are submitted by the Committee to the three represented institutions for implementation8;  

(iii)  Crisis management coordination in situations where an immediate threat to the stability of 

the national financial system  materialises. In such cases, the FSC  Chairman submits to the 

Committee an opinion on the solvency of the threatened entities, the NBP President submits 

an  opinion  on  the  liquidity  of  the  banking  sector  and  the  Minister  for  Finance  submits  an 

opinion  on  the  possibility  of  support  for  the  threatened  entities  from  public  funds. 

Furthermore,  the  NBP  President  and  the  FSC  Chairman  submit  opinions  on  the  systemic 
significance of the threatened entities9; and 

(iv) 

International cooperation, as the draft law provides that the members of the Committee may, 

for  the  purpose  of  strengthening  international  cooperation  in  support  of  financial  stability, 

conclude agreements with institutions carrying out tasks in this area in the member states of 

the European Economic Area and in particular with the ECB, national central banks within 

the  European  System  of  Central  Banks  (ESCB),  the  relevant  ministries  and  supervisory 
agencies10.  

2. 

Central bank participation in the Financial Stability Committee 

2.1  Central bank independence 

In  one  of  its  previous  opinions11,  the  ECB  advocated  the  creation  of  the  Committee  and  NBP’s 

participation in it as one possible measure to ensure that NBP can continue to provide the necessary 

contribution  to  financial  stability,  following  the  implementation  of  the  supervisory  reform  in 

Poland transferring the banking supervision responsibilities from NBP to a newly-created separate 

6 
7 
8 
9 
10 

11 

See Article 5 of the draft law. 
See Article 2(1)(1) of the draft law. 
See Article 2(1)(2) and Article 2(2) of the draft law. 
See Article 2(1)(3) and Article 2(3)-(4) of the draft law. 
Such agreements must describe the principles of cooperation, the extent of the exchange of information and the principles 
for the protection of such information. See Article 10 of the draft law. 
See  paragraphs 3.1.2 and  3.4  of  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;  cf.  paragraph  7  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]. 

2 

 
                                                 
authority (the current FSC). Therefore the ECB welcomes the establishment of the Committee, as it 

responds to the need to take coordinated action in financial crisis situations. However, in line with 

another  of  its  previous  opinions,  the  ECB  recommends  that:  (i)  the  tasks  attributed  to  the 

Committee  must  not  compromise  NBP’s  independence  with  regard  to  its  central  bank  tasks;  and 

(ii) the  legal  framework  of  the  Committee  should  be  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  bodies12.  The  ECB  recommends  that  such  principles  are 
followed, inter alia, in internal regulations of the Committee, to be adopted under the draft law13. 

2.2  Financial stability role of the central bank 

The  ECB  acknowledges  that  under  the  draft  law,  certain  specific  responsibilities  in  the  field  of 

financial  stability  will  be  assigned  to  NBP.  In  particular,  the  draft  law  amends  the  Law  on 
Narodowy Bank Polski14 by including among NBP’s tasks the ‘task in support of the stability of the 

national financial system referred to in Article 1(4) of the [draft law]’, i.e. preparation of opinions 
addressed to the Committee on the systemic significance of the threatened entities15. Additionally, 

it will become one of the tasks of NBP’s Management Board to produce analyses of the stability of 
the financial system16. Moreover, NBP will be empowered to request credit institutions to provide 
information relevant to the assessment of the banking system’s financial stability17, in addition to 

the  current  obligation  of  credit  institutions  to  report  on  data  relevant  to  the  assessment  of  their 
financial  condition  and  the  banking  sector  risk18.  Such  new  powers  are  welcomed  as  they  would 

facilitate  NBP’s  effective  performance  of  its  financial  stability  role.  However,  all  the 

abovementioned  amendments  fall  short  of  introducing  an  explicit  financial  stability  function  for 
NBP, encompassing the broad range of central bank contributions to financial stability19. Therefore, 
the  ECB  reiterates  its  previous  recommendation20  that  the  Law  on  NBP  should  be  amended  to 

specify that NBP has formal responsibility for contributing to financial stability by monitoring and 

assessing  the  financial  system  as  a  whole,  as  a  separate  function  from  hands-on  supervision  and 

financial regulation.  

12  

13 
14 

15 
16 
17 

18 
19 
20 

See paragraph 3.1 of the ECB Opinion CON/2007/31 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;  cf.  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 Article 8 of the draft law. 
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 ‘Law on NBP’). 
See point 6a inserted in Article 3(2) of the Law on NBP by Article 13(1) of the draft law.  
See point 5a inserted in Article 17(4) of the Law on NBP by Article 13(2) of the draft law. 
Details  of  such  reporting  obligations  are  to  be  further  specified  by  NBP.  See  Article  23(3)  of  the  Law  on  NBP,  as 
amended by Article 13(4)(a) of the draft law. 
See the current wording of Article 23(3) of the Law on NBP. 
See the ECB’s Financial Stability Review, December 2004, p. 7.  
See paragraph 2.2 of ECB Opinion CON/2006/15 and paragraph 3.1 of ECB Opinion CON/2007/31; see also paragraph 
4.2 of 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 and paragraph 3.3 of ECB Opinion CON/2008/32 of 23 July 2008 at the request of the 
Polish Minister for Finance on a draft law amending the Law on the Bank Guarantee Fund.  

3 

 
                                                 
3. 

Rules on exchange of information  

3.1   The draft law provides that all persons participating in Committee meetings, or in working groups 

established by the Committee, may exchange information necessary for the proper functioning of 
the Committee, while being obliged to keep such information confidential21. The Committee may 

also publish public statements on its work, including as regards its ‘findings’. Committee members’ 
legal  liability  for  information  published  in  this  way  is  excluded22.  Furthermore,  the  draft  law 

provisions  amending  the  Law  on  NBP  define  more  precisely  the  exclusions  from  NBP’s 
confidentiality obligations, as contained, inter alia, in the Law on NBP and the Law on banking23. 

In  particular,  NBP  will  be  entitled  to  provide  the  Minister  for  Finance  and  the  FSC  with 
information obtained from individual credit institutions, as relevant to the work of the Committee24. 

Reciprocally, the FSC Chairman will be entitled to provide information to NBP and the Minister 
for Finance25.  

3.2   The ECB welcomes the aim of ensuring effective exchange of information between members of the 

Committee with a view to allowing the Committee to be an efficient means of communication and 

coordination while respecting each institution’s responsibility. Furthermore, in line with its earlier 
opinion26,  the  ECB  notes  that  provisions  relating  to  information-sharing  within  the  Committee 

should be: (i) consistent with Community law regulating the exchange of supervisory and statistical 
information  and  professional  secrecy27,  as  well  as  with  the  Law  on  NBP;  and  (ii)  capable  of 

facilitating  the  operation  of  relevant  EU  Memoranda  of  Understanding  to  which  the  Polish 
authorities  are  signatories28.  The  ECB  considers  in  particular  that,  as  part  of  the  proposed 

amendments  relating  to  exchange  of  information,  appropriate  procedures  and  amendments  to  the 

Law  on  the  NBP  should  be  considered  ensuring  that  correctness  and  accuracy  of  information 

submitted  by  individual  credit  institutions  could  be  verified  by  NBP.  This  would  allow  NBP  to 

exercise its powers in the field of financial stability effectively and safeguard the high quality of 

21 
22 
23 
24 
25 

26 
27 

28 

Such confidentiality obligations are protected by criminal sanctions. See Article 9(1) of the draft law. 
See Articles 11-12 of the draft law. 
Law on banking of 29 August 1997 (consolidated text: Dz.U. of 12 June 2002 No 72, item 665, as amended). 
See paragraphs 8-9 added to Article 23 of the Law on NBP by Article 13(4)(d) of the draft law.  
See  Article  17a  of  the  Law  on  supervision  of  financial  market  (Dz.U.  of  4  September  2006  No  157,  item  1119,  as 
amended, hereinafter, the ‘Law on supervision of financial market’), as inserted by Article 14 of the draft law.  
See paragraph 3.2 of ECB Opinion CON/2007/31.  
In particular, Articles 44 - 52 of 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) (Text with EEA relevance), OJ L 177, 
30.6.2006,  p.  1  (hereinafter,  the  ‘Banking  Directive’).  Directive  as  last  amended  by  Directive  2008/24/EC  of  the 
European Parliament and of the Council (OJ L 81, 20.3.2008, p. 38); 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 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); Guideline ECB/1998/NP28 of 22 December 1998 concerning the common rules 
and minimum standards to protect the confidentiality of the individual statistical information collected by the European 
Central Bank assisted by the national central banks (OJ L 55, 24.2.2001, p. 72). 
In  particular,  the  ‘Memorandum  of  understanding  on  cooperation  between the  financial  supervisory  authorities, central 
banks and finance ministries of the European Union on cross-border financial stability’ of 1 June 2008, as published on 
the ECB website, www.ecb.europa.eu (the ‘June 2008 MoU’). 

4 

                                                 
information exchanged within the Committee29. In this respect the ECB also points to the published 

draft amendments to the Banking Directive, which may result in the introduction of an obligation 

for the supervisory authorities of the Member States to alert the relevant national central banks of 
arising crisis situations and to provide them with relevant information30. 

3.3  The  ECB  notes  that  the  draft  law  stipulates  explicitly  that  information  exchanged  within  the 
Committee may be disclosed to members of the FSC who are not represented on the Committee31. 

Should  this  provision  be  maintained  in  the  draft  law,  equivalent  access  rights  will  need  to  be 

safeguarded  for  members  of  NBP’s  governing  bodies  and  staff  who  perform  financial  stability 

tasks but do not directly participate in the work of the Committee.  

3.4  Finally, the ECB notes that separate amendments to the Law on NBP will allow NBP to disclose 

data  collected  from  individual  credit  institutions,  inter  alia,  to:  (i)  the  ECB,  in  connection  with 

NBP’s  obligations  stemming  from  its  participation  in  the  ESCB;  (ii)  foreign  entities,  in 

performance of Poland’s international obligations; (iii) the Minister for Finance, for the purposes of 
management  of  the  public  debt;  and  (iv)  other  entities,  as  specified  in  separate  provisions32.  As 

stated  in  paragraph  3.2  of  this  opinion,  the  ECB  would  underline  the  fact  that  Community  law 

provisions  not  only  apply  to  NBP’s  provision  of  information  to  the  ECB  but  also  to  other  listed 

instances  of  exchange  of  supervisory  and  statistical  information.  It  could  be  advisable  to  define 

such  other  allowed  instances  of  information  disclosure  by  NBP  more  precisely  in  the  draft  law 

including a reference to compliance with Community law in this respect.  

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

Done at Frankfurt am Main, 1 September 2008. 

[signed] 

The President of the ECB 

Jean-Claude TRICHET 

29 

30 

31 

32 

See  paragraphs  5.1,  5.2  and  5.7  of  the  June  2008  MoU,  together  with  Paragraph  1(5)  of  Annex  1  (Common  Practical 
Guidelines)  to  the  June  2008  MoU  as  well  as  Annex  B  (Content  of  the  common  database)  to  the  Voluntary  Specific 
Cooperation Agreement attached to the June 2008 MoU. 
See  amendments  to  Articles  49  and  130  of  the  Banking  Directive,  as  proposed  in  the  Commission’s  consultation 
document ‘Public consultation on possible changes to the Capital Requirements Directive (CRD, consisting of Directives 
2006/48/EC and 2006/49/EC’ of 30 June 2008  
(available at http://ec.europa.eu/internal_market/bank/docs/regcapital/consultation_en.pdf). 
I.e.  the  members  of  the  FSC  appointed  by  the  President  of  the  Republic,  the  Minister  for  Finance,  the  Minister 
responsible for the state pension system and the NBP President (see Article 7 of the draft law and Article 5(2) of the Law 
of 21 July 2006 on supervision of financial market). 
See Article 23(7) of the Law on NBP, as amended by Article 13(4)(c) of the draft law.  

5