Opinion of the European Central Bank of 9 March 2009 at the request of the Polish Minister for Finance on a draft law on recapitalisation of certain financial institutions (CON/2009/19)
Date: 2009-03-09
Institutions: European Central Bank
Subjects: EU financial instrument, Poland, State aid, capital increase, financial institution, financial intervention, financial solvency, financial stability, national law

EN 

OPINION OF THE EUROPEAN CENTRAL BANK 

of 9 March 2009 

at the request of the Polish Minister for Finance  

on a draft law on recapitalisation of certain financial institutions 

(CON/2009/19) 

Introduction and legal basis 

On 19 February 2009 the European Central Bank (ECB) received a request from the Polish Minister for 

Finance for an opinion on a draft law on the recapitalisation of certain financial institutions (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  sixth  indent  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 contains 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 provides for public intervention instruments to address potential liquidity or solvency 

difficulties  that  may  arise  in  the  financial  market  by  way  of  enabling  public  authorities  to: 

(i) provide  a  State  guarantee  to  market-initiated  recapitalisation  operations  (hereinafter  a  ‘State 

recapitalisation  guarantee’);  and  (ii)  initiate  compulsory  State  takeovers  of  a  distressed  financial 
institution (hereinafter a ‘compulsory State takeover’)2. The measures provided for in the draft law 
may  be  adopted  until  31  December  20103  in  relation  to  two  categories  of  financial  institutions 
established  in  Poland:  domestic  banks4  and  domestic  insurance  companies5,  excluding  mutual 

1  
2  
3  
4  

OJ L 189, 3.7.1998, p. 42. 
See Article 1 of the draft law. See explanatory memorandum to the draft law, p. 1. 
See Article 25 of the draft law. 
Article 2(1) of the draft law, referring to Article 4(1)(1) of the Law on banking of 29 August 1997 (consolidated text: 
Dziennik  Ustaw  (Dz.U.)  of  12  June  2002  No  72,  Item  665,  as  amended).  The  term  ‘bank’  covers  credit  institutions 
registered in Poland, excluding Polish 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). The term ‘credit institutions’ as used in Polish law 
only relates to European Economic Area (EEA) credit institutions from outside Poland. Non-EEA credit institutions are 

 
 
 
 
                                                 
insurance  associations.  They  will  complement  other  measures,  which  will  be  introduced  on  the 

basis of the Law on State Treasury support to financial institutions (hereinafter the ‘Law on State 

support’).  

1.2  Specifically, the draft law will enable the Minister for Finance to provide State Treasury guarantees 

facilitating recapitalisation by market entities of distressed financial institutions in relation to which 
rehabilitation proceedings have been initiated6. Such State recapitalisation guarantees will result in 

the  State  Treasury  acquiring  shares,  bonds  or  other  debt  instruments  issued  by  the  recapitalised 

financial institution in cases where such instruments are not acquired by market entities (existing 
shareholders  or  third  persons)7.  The  Minister  for  Finance  will  issue  State  recapitalisation 

guarantees under the following cumulative conditions: (a) on application by the financial institution 

and  by  way  of  an  agreement  with  the  institution  concluded  after  consultation  with  the  Financial 

Supervision  Commission  (FSC)  and  the  President  of  Narodowy  Bank  Polski  (NBP);  (b)  on 
approval  by  the  FSC  of  the  relevant  rehabilitation  plan8;  and  (c)  subject  to  certain  statutory 
limitations  as  to  the  scope  and  amount  of  the  guarantees9.  The  provision  of  a  guarantee  will  be 

remunerated by way of commission charged to the recapitalised financial institution, the amount of 

which  will  be  determined  in  accordance  with  the  rules  specified  in  the  draft  law  and  the 
implementing provisions to be adopted by the Minister for Finance10. 

1.3  According to conditions linked to the provision of State recapitalisation guarantees, the guarantee 

agreement  will  also  determine,  inter  alia,  the  power  of  the  Minister  for  Finance  to  appoint 

members  of  the  recapitalised  financial  institution’s  bodies  and  the  Minister’s  influence  on  the 

financial  policy  of  such  institution,  as  well  as  limitations  on  the  remuneration  that  the  institution 
may  offer  to  its  management11.  Where  a  State  recapitalisation  guarantee  is  exercised,  i.e.  if  the 

State  Treasury  acquires  financial  instruments  issued  by  the  recapitalised  financial  institution,  the 

FSC  may,  acting  on  a  request  of  the  Minister  for  Finance,  appoint  a  guardian  to  oversee  the 
realisation of the rehabilitation plan12. Furthermore, in the event of a breach of the conditions of a 

State recapitalisation guarantee, the State Treasury may demand the redemption of its holdings of 

financial  instruments  issued  by  the  recapitalised  financial  institution  and/or  apply  to  the  FSC  to 

referred to under Polish law as ‘foreign banks’ (Article 2, Article 4(1) and (3) and Article 4(17) to (20) of the Law on 
banking of 29 August 1997.  
Article  2(1)  of  the  draft  law,  referring  to  Article  2(1)(5)  of  the  Law  of  22  May  2003  on  insurance  activities  (Dz.  U. 
No 124, item 1151, as amended). 
See Article 1(1) and Articles 3 to 13 of the draft law. 
In cases where a maximum of 50% of the total amount of issue has been acquired by other investors, the State Treasury 
will  acquire  the  shares,  bonds  or  debt  instruments  which  were  not  acquired  by  other  investors.  Alternatively,  in  cases 
where other investors have acquired more than 50% of the total, the State Treasury will purchase additional bonds or debt 
securities issued by the financial institutions in the value of the difference between the guaranteed amount and the total 
value of shares acquired by other investors. See Article 5(1) and (2) of the draft law. 
See Articles 3(1), 4(1) and 6(1) of the draft law. 
An issue of bonds or bank debt securities may only be covered by a State recapitalisation guarantee if the issue fulfils the 
criteria for subordinated debt. The amount of the State recapitalisation guarantee may not exceed the amount of increase 
of the financial institution’s own funds, as provided for in the rehabilitation plan; see Article 4 of the draft law. 
See Articles 11 and 12 of the draft law. 
See Article 6(5) of the draft law. 
See Article 8 of the draft law. 

5  

6  
7  

8  
9  

10  
11  
12  

2 

                                                                                                                                                             
place the institution under compulsory administration, or carry out a compulsory State takeover of 
the institution13.  

1.4  Finally,  the  draft  law  permits  a  compulsory  takeover  of  a  distressed  financial  institution  by  the 

State  Treasury  if  there  is  a  threat  to  the  solvency  of  a  financial  institution  and  such  takeover  is 
justified  on  the  grounds  of  financial  system  stability14.  A  compulsory  State  takeover  requires  the 

adoption  of  a  decision  by  the  Council  of  Ministers  following  consultation  with  the  FSC  and  the 
President of the NBP15. The State Treasury has to dispose of the shares it has acquired as a result of 

a takeover once financial stability is restored, and in any event no later than within three years of 
their acquisition with up to two additional extensions of one year each being possible16. 

2. 

General observations 

2.1  The ECB notes that the draft law is the second Polish law providing for State intervention in the 
financial sector to mitigate the current financial turmoil alongside the Law on State support17, and 

therefore  reminds  the  consulting  authority  of  the  statements  expressed  in  ECB  Opinion 
CON/2008/8018 on the Law on State support and in its other recent opinions on draft national laws 
in  other  Member  States  relating  to  emergency  measures19.  The  ECB  also  notes  that  the  common 

principles  to  guide  State  actions  have  been  highlighted  in  the  conclusions  adopted  at  the  Ecofin 
meeting  on  7 October 200820.  On  12 October  2008  the  Heads  of  State  of  the  euro  area  issued  a 
‘Declaration  on  a  concerted  European  action  plan  of  the  euro  area  countries’21  (hereinafter  the 

‘Declaration’), in which they agreed on common principles to be followed by the EU and euro area 

governments,  central  banks  and  supervisors  to  avoid  national  measures  adversely  affecting  the 

functioning  of  the  single  market  and  other  Member  States.  This  coordinated  approach  includes 

initiatives  aimed  at  ensuring  appropriate  liquidity,  facilitating  the  funding  of  banks  by  various 

means, providing additional capital resources to financial institutions and recapitalising distressed 

banks.  The  European  Council  endorsed 

these  principles 

for  all  Member  States  on 

13  
14  
15  
16  
17  

18  

19  
20  

21  

See Article 9(1) of the draft law. 
See Article 14(1) of the draft law. 
See Article 14(1) of the draft law. 
See Article 14(9) of the draft law. 
This law, as adopted by the Parliament on 12 February 2009 and signed by the President on 25 February 2009, provides 
for  the  following  measures:  a  State  guarantee  for  repayment  of  a  refinancing  loan  extended  to  a  bank  by  NBP  or  of  a 
credit facility or loan provided within a line of credit extended by a bank to another bank, loans of Treasury securities to 
financial institutions and preferential sales of Treasury securities to financial institutions. 
ECB Opinion CON/2008/80 of 28 November 2008 at the request of the Polish Minister of Finance on a draft law on the 
provision of State Treasury support to financial institutions.  
See in particular the ECB opinions listed in footnote 29 below.  
According to these principles: (a) interventions should be timely and the support should in principle be temporary; (b) the 
interests of taxpayers should be protected; (c) existing shareholders should bear the due consequences of the intervention; 
(d) the Government should be in a position to bring about a change of management; (e) management should not retain 
undue benefits; (f) governments may have, inter alia, the power to intervene in remuneration; (g) legitimate interests of 
competitors  must  be  protected,  in  particular  through  the  State  aid  rules;  and  (h) negative  spillover  effects  should  be 
avoided. 
Available on the website of the French Presidency at www.ue2008.fr. 

3 

 
                                                 
16 October 200822. The ECB notes that coordination of national measures is already taking place at 
European and international level23.  

2.2  Concerning the issue of the application of State aid rules to measures taken by the Member States 

in connection with financial institutions in the context of the ongoing financial crisis, the ECB also 

draws  the  consulting  authority’s  attention  to  the  importance  of  ensuring  that  the  proposed 

arrangements  comply  with  the  relevant  Community  law  provisions,  in  particular  that  they  avoid 

undue distortions of competition, and with the criteria recently laid down by the Commission in its 
guidance on compliance by financial sector support schemes with EU State aid rules24, as well as 
the subsequent Commission’s guidance specifically targeting recapitalisation measures25. 

2.3  The ECB notes that under the draft law the Ministry of Finance proposes to consult the President of 

NBP prior to deciding to support a domestic financial institution. While appreciating the draft law’s 

recognition of NBP’s expertise in this field, the ECB also expects that NBP’s involvement in the 

procedure provided for in the draft law should not extend beyond the provision of advice and that it 

will otherwise comply fully with the prohibition on monetary financing laid down in Article 101(1) 

of the Treaty, read in conjunction with Council Regulation (EC) No 3603/93 of 13 December 1993 

specifying definitions for the application of the prohibitions referred to in Articles 104 and 104b(1) 
of  the  Treaty26.  In  addition,  it  is  also  expected  that  NBP  will  perform  these  advisory  tasks  in 

connection  with  State  support  measures  in  a  manner  fully  compatible  with  its  institutional  and 

financial independence, thereby safeguarding the proper performance of its tasks under the Treaty 
and the Statute of the European System of Central Banks and of the European Central Bank27. 

22  

23  
24  

25  

26  
27  

See also paragraph 2.2 of ECB Opinion CON/2008/81 of 1 December 2008 at the request of the Hungarian Ministry of 
Finance on a draft law on strengthening the financial intermediary system. 
See paragraph 2.1 of ECB Opinion CON/2008/80. 
See  the  ‘Communication  from  the  Commission  –  The  application  of  State  aid  rules  to  measures  taken  in  relation  to 
financial institutions in the context of the current global financial crisis’ of 13 October 2008, OJ C 270, 25.10.2008, p. 8 
(hereinafter  the  ‘Commission’s  communication  on  rescue  measures’),  in  particular  its  Section  4  (Recapitalisation  of 
financial institutions). See also the following: (a) paragraph 3.8 of ECB Opinion CON/2008/68 of 13 November 2008 at 
the  request  of  the  Finnish  Ministry  of  Finance  on  a  draft  government  proposal  for  laws  amending  the  Law  on  the 
Government  Guarantee  Fund  and  the  Law  on  credit  institutions;  (b)  paragraph  3.1.3  of  ECB  Opinion  CON/2009/3  of 
8 January 2009 at the request of the Slovenian Ministry of Finance on a draft decree laying down criteria and conditions 
for  the  implementation  of  State  capital  investments  and  for  the  conversion  of  State  claims  into  capital  shares  under 
Article 81.a of the Law on public finance; and (c) paragraph 3.3 of ECB Opinion CON/2009/6 of 26 January 2009 at the 
request of the Danish Ministry of Economic and Business Affairs on a proposal for a Law on State investments in credit 
institutions and a proposal for a Law amending the Law on financial stability. 
‘Communication  from  the  Commission  –  The  recapitalisation  of  financial  institutions  in  the  current  financial  crisis: 
limitations  of  aid  to  the  minimum  necessary  and  safeguards  against  undue  distortions  of  competition’,  OJ  C  10, 
15.1.2009, p. 2 (hereinafter the ‘Commission’s communication on recapitalisation measures’). 
OJ L 332 , 31.12.1993, p. 1. 
See paragraph 3.3 of ECB Opinion CON/2008/79 of 27 November 2008 at the request of the Greek Ministry of Economy 
and  Finance  on  a  draft  law  on  enhancing  liquidity  of  the  economy  to  address  the  impact  of  the  international  financial 
crisis and on a draft decision on its implementation. Also paragraph 3.10 of ECB Opinion CON/2008/81 and paragraphs 
3.2.2 and 3.2.3 of paragraph 3.1.3 of ECB Opinion CON/2009/3. 

4 

 
                                                 
3. 

Specific observations 

3.1  Eligibility for support and takeover measures  

The ECB understands that subsidiaries of foreign financial institutions are included in the scope of 

‘financial institutions’ as defined in Article 2(1) of the draft law and that they are eligible to benefit 

from the measures provided for by the draft law. This is in line with the Commission’s guidance on 
compliance by the financial sector support schemes with State aid rules28. The ECB welcomes the 

above provision, as it avoids distortion of the level playing-field for domestic financial institutions 

and subsidiaries of foreign institutions. 

3.2  The draft law and coordination of the policy of the Member States 

In line with the Declaration, Member States have to act in a coordinated manner to avoid the risk of 

significant  differences  in  national  implementation  creating  distortions  in  global  banking  markets. 

The euro area Heads of State also acknowledged the need to work in cooperation with the ECB so 

as  to  ensure  consistency  with  the  management  of  liquidity  by  the  Eurosystem  and  compatibility 

with  the  operational  framework  of  the  Eurosystem.  In  this  respect,  the  ECB  emphasises  that 

uncoordinated decisions among Member States should be avoided as they may lead to significant 

differences  in  the  treatment  of  financial  institutions  between  Member  States.  This  remark  also 

applies to measures relating to state capital investments. 

3.3  Conditions for State capital investments 

The  ECB  takes  the  opportunity  to  reiterate  the  points  made  in  its  previous  opinions  regarding 
recapitalisations29, as also subsequently published in a separate document30. In this respect the ECB 

notes  that  the  recapitalisation  measures  considered  in  Member  States  should  be  aimed  at 

strengthening the capital position of fundamentally sound financial institutions in order to improve 

the  functioning  and  stability  of  the  banking  system  and  to  ensure  the  proper  financing  of  the 

28  

29  

30  

See the Commission’s communication on rescue measures, paragraph 18 of which specifies that ‘The eligibility criteria 
of  financial  institutions  …  must  be  objective,  taking  due  account  of  their  role  in  the  relevant  banking  system  and  the 
overall economy, and non-discriminatory so as to avoid undue distortive effects on neighbouring markets and the internal 
market  as  a  whole.  In  application  of  the  principle  of  non  discrimination  on  the  grounds  of  nationality,  all  institutions 
incorporated in the Member State concerned, including subsidiaries, and with significant activities in that Member State 
should  be  covered  by  the  scheme’.  See  also  paragraph  3.1  of  ECB  Opinion  CON/2008/79  and  paragraph  3.1  of  ECB 
Opinion CON/2008/81. 
See  ECB  Opinion  CON/2008/44  of  3  October  2008  at  the  request  of  the  Irish  Minister  for  Finance  on  a  draft  Credit 
Institutions (Financial Support) Bill 2008; ECB Opinion CON/2008/54 of 17 October 2008 at the request of the Danish 
Ministry  of  Economic  and  Business  Affairs  on  a  proposed  Law  on  financial  stability;  ECB  Opinion  CON/2008/55  of 
20 October 2008 at the request of the Austrian Ministry of Finance on draft legal measures to ensure the stability of the 
Austrian financial market; ECB Opinion CON/2008/58 of 23 October 2008 at the request of the Banca d’Italia on behalf 
of  the Italian Ministry for Economic Affairs and Finance on two Decree-Laws containing urgent measures to guarantee 
the  stability  of  the  banking  system  and  the  continuity  of  the  provision  of  credit;  ECB  Opinion  CON/2008/75  of 
24 November 2008 at the request of the Finnish Ministry of Finance on a draft law on state capital investment in deposit 
banks;  ECB  Opinion  CON/2008/79;  ECB  Opinion  CON/2008/81;  ECB  Opinion  CON/2009/3;  ECB  Opinion 
CON/2009/6; ECB Opinion CON/2009/11 of 9 February 2009 at the request of the Latvian Ministry of Finance on a draft 
regulation on fair compensation granted to a bank or its shareholders; and ECB Opinion CON/2009/16 of 25 February 
2009  at  the  request  of  the  Irish  Minister  for  Finance  on  a  draft  National  Pensions  Reserve  Fund  (Amendment)  and 
Miscellaneous Provisions Bill 2009. 
See  Recommendations  of  the  Governing  Council  of  the  European  Central  Bank  on  the  pricing  of  recapitalisations  of 
20 November  2008,  as  published  on  19  December  2008  on  the  ECB’s  website  at  www.ecb.europa.eu  (section 
‘Publications’) (hereinafter the ‘Recommendations’). 

5 

 
 
                                                 
economy.  In  particular,  a  consistent  approach  should  be  adopted  in  defining  the  conditions  for 

recapitalisations  and  the  pricing  of  the  instruments  intended  to  provide  Tier 1  capital  to  financial 

institutions. The ECB underlines the importance of appropriate pricing for recapitalisations in terms 

of the goals of enhancing the stability of the financial system, facilitating a return to normal market 

conditions  and  ensuring  the  proper  financing  of  the  economy.  The  ECB  also  highlights  that  the 

pricing  conditions  for  capital  support  should  be  risk-based  and  market-oriented,  determined  by 

taking  into  consideration  the  specific  risk  of  both  the  specific  instrument  chosen  for  injecting 

capital and the institution concerned. Specific features of the instruments for capital injections, such 

as preference shares, should be appropriately chosen so that, while encouraging an early end to the 

State’s  capital  support  of  banks,  they  should  not  result  in  an  excessive  increase  in  the  cost  of 

capital. 

3.4  Against this background, the ECB has the following remarks. First, the ECB notes that pursuant to 

the draft law the State may issue guarantees in order to facilitate recapitalisation by market entities 

of  distressed  financial  institutions  in  relation  to  which  rehabilitation  proceedings  have  been 

initiated. The ECB therefore understands that these guarantees, if activated, would lead to capital 

injections by the State into distressed financial institutions. In this respect, the ECB underlines that, 

according  to  the  Recommendations  and  in  line  with  paragraph  9  of  the  Declaration,  the 

recapitalisation measures considered by Member States should be aimed at strengthening the capital 

position of distressed but fundamentally sound financial institutions. 

3.5  Second, as regards the pricing of State recapitalisation guarantees, the ECB reminds the consulting 

authority  that  it  is  crucial  to  ensure  a  level  playing-field  for  the  harmonisation  of  the  price 

determination  of  such  guarantees  within  the  euro  area  and  the  EU;  moreover,  that  the  price  of  a 

State  recapitalisation  guarantee  is  risk-based  and  market-oriented  and  determined  on  the  basis  of 

the costs of a corresponding guarantee in the market. In this context, the ECB welcomes Articles 11 

and 12 of the draft law and the implementing provisions to be adopted by the Minister for Finance, 

which make the applicable commission dependent, inter alia, on the beneficiary’s risk rating.  

3.6  Third,  the  ECB  also  reminds  the  Polish  authorities  that  beneficiary  financial  institutions  may  not 

profit  from  undue  use  of  their  guaranteed  status  to  engage  in  a  heightened  level  of  activities  that 

distort  the  market.  In  this  regard,  the  ECB  reiterates  the  importance  of  establishing  appropriate 

safeguards such as limits on the marketing of financial products or on the expansion of activities on 

the basis of State guarantees. 

3.7  Fourth,  in  line  with  the  Declaration,  the  ECB  also  emphasises  that  harmonisation  regarding  the 

expiry  of  national  financial  support  schemes  across  the  EU  is  crucial,  as  application  of  such 

schemes  is  aimed  at  restoring  normal  market  conditions.  In  this  context,  reiterating  its  position 
taken in previous opinions31, the ECB welcomes the fact that the draft law expressly provides that 

31  

See e.g. paragraph 3.1.3 of ECB Opinion CON/2009/3, paragraph 3.3 of ECB Opinion CON/2009/6 and paragraph 3.1.3 
of ECB Opinion CON/2009/16 of 25 February 2009 at the request of the Irish Minister for Finance on a draft National 
Pensions Reserve Fund (Amendment) and Miscellaneous Provisions Bill 2009. 

6 

                                                 
the  State’s  participation  in  financial  institutions  resulting  from  a  compulsory  State  takeover  is 

temporary and that the State’s role as a shareholder is limited both on the basis of a period of time 
and the development of market conditions32. The ECB also welcomes the introduction of a precise 

deadline, 31 December 2010, for the issuance of State recapitalisation guarantees and carrying out 
compulsory  State  takeovers33.  In  this  context,  the  ECB  suggests  introducing  a  more  precise 

reference to issuance of State recapitalisation guarantees in Article 25 of the draft law by extending 

the reference to Article 3(1) in conjunction with Article 4(1). 

In contrast, it appears from the draft law that once State recapitalisation guarantees are exercised, 

the  related  capital  injection  by  the  State  into  the  financial  institutions  is  not  intended  to  be  a 

temporary measure that would only remain in force for the duration of the present crisis or until a 

given point in time in the future. In this respect, the ECB suggests introducing limitations on State 

ownership  of  shares  acquired  as  a  result  of  exercising  the  recapitalisation  guarantee  pursuant  to 

Article 5(1) of the draft law, which are similar to those applicable to shares acquired by the State in 

result  of  a  compulsory  State  takeover  pursuant  to  Article  14  of  the  draft  law.  In  this  context,  the 

ECB  notes  that  the  step-up  clause  in  Article  7(3)  of  the  draft  law  regarding  dividends  paid  on 

preferred  shares  of  the  State  Treasury  provides  an  incentive  for  the  issuer  to  redeem  the  shares 
acquired by the State Treasury as soon as possible34. However, for such a step-up clause to be fully 

effective,  a  specific  provision  in  the  articles  of  association  of  the  financial  institution  in  question 

would be necessary to enable it to redeem such shares at its own discretion if the capital injection 
provided  by  the  State  Treasury  is  no  longer  needed35.  The  ECB  notes  that  in  this  regard,  by 

establishing  such  an  open-ended  scheme,  the  draft  law  is  not  fully  in  line  with  the  Declaration, 

which  clearly  draws  attention  to  the  need  for  any  domestic  support  schemes  and  for  the  legal 

framework  that  provides  for  them  to  be  temporary  in  nature,  even  if  these  can  be  extended  or 
renewed36. 

3.8  Technical remarks 

The ECB points to a possible omission in Article 15(2) of the draft law, which applies some effects 

of  placing  the  financial  institution  under  compulsory  administration  only  to  bodies  of  a  bank.  It 

seems that insurance companies are also intended to be covered by this provision. For reasons of 

32  
33  
34  

35  

36  

See Article 14(9) of the draft law. 
See Article 25 of the draft law. 
See  the  Commission’s  communication  on  recapitalisation  measures,  paragraph  19  of  which  specifies  that  ‘…pricing 
conditions should provide an incentive for the bank to redeem the State as soon as the crisis is over’. See also paragraph 7 
of the Recommendations and paragraph 3.2 of ECB Opinion CON/2008/79.  
One  possible  way  of  achieving  this  effect  would  be  amend  the  list  of  required  elements  in  the  guarantee  agreement 
specified in Article 6(5) of the draft law to include a clause enabling compulsory redemption of shares held by the State 
Treasury,  as  provided  for  under  Article  359  of  the  Code  of  Commercial  Companies  of  15  September  2000  (Dz.U.  of 
8 November 2000 No 94, item 1037, as amended). 
See statement in the Declaration that ‘… In all cases, these actions will be designed in order to avoid any distortion in the 
level playing-field and possible abuse at the expense of non beneficiaries of these arrangements. As a consequence the 
scheme  will  be  limited  in  amount,  temporary  (emphasis  is  ours)  and  will  be  applied  under  close  scrutiny  of  financial 
authorities …’. See also Commission’s communication on rescue measures, paragraph 24. 

7 

 
                                                 
clarity the ECB therefore suggests replacing the references to ‘bank’ in Article 15(2) by references 

to ‘financial institution’. 

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

Done at Frankfurt am Main, 9 March 2009. 

[signed] 

The President of the ECB 

Jean-Claude TRICHET 

8