Opinion of the European Central Bank of 16 March 2009 at the request of the Polish Minister for Finance on a draft law amending the Law on guarantees and endorsements granted by the Treasury and certain legal persons, the Law on Bank Gospodarstwa Krajowego and certain other laws (CON/2009/22)
Date: 2009-03-16
Institutions: European Central Bank
Subjects: Poland, credit institution, financial stability, national law, public bank

EN 

OPINION OF THE EUROPEAN CENTRAL BANK 

of 16 March 2009 

at the request of the Polish Minister for Finance  

on a draft law amending the Law on guarantees and endorsements granted by the Treasury and 

certain legal persons, the Law on Bank Gospodarstwa Krajowego and certain other laws 

(CON/2009/22) 

Introduction and legal basis 

On 18 February 2009 the European Central Bank (ECB) received a request from the Polish Minister for 

Finance for an opinion on a draft law (hereinafter ‘the draft law’) amending the Law of 14 March 2003 on 
Bank Gospodarstwa Krajowego (hereinafter the ‘Law on BGK’)1.  

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 provisions2, 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  Bank  Gospodarstwa  Krajowego  (BGK)  is  the  only  Polish  credit  institution  established  by 
legislation as a State bank3. Its main activities include supporting the government’s socioeconomic 

programmes,  as  well  as  local  self-government  and  regional  development  projects.  Within  this 

scope,  BGK  provides  banking  services  to  public  entities  and  several  public  funds  established  for 

special  purposes,  including  those  established  to  distribute  EU  funds.  As  a  specific  financial 

1  
2  
3  

Dz. U. of 2003, No 65, item 594. 
OJ L 189, 3.7.1998, p. 42. 
See Article 2(1) of the Law on BGK together with Article 1 of the Regulation of the President of Poland of 30 May 1924 
merging  the  State  credit  institutions  into  Bank  Gospodarstwa  Krajowego  (Dziennik  Ustaw  (Dz.  U.)  of  1924  No  46, 
item 477). See also Article 46(1) of the Law on banking of 13 April 1960 (Dz. U. of 1960 No 20, item 121) together with 
Article 64(2) of the Law on banking of 12 June 1975 (Dz. U. of 1975 No 20, item 108) and Article 64(2) of the Law on 
banking of 26 February 1982 (Dz.U. of 1982 No 7, item 56). See also Article 14(1) of the Law on banking of 29 August 
1997  (consolidated  text:  Dz.U.  of  2002  No  72,  item  665)  (hereinafter  the  ‘Law  on  banking’).  See  Regulation  of  the 
Minister for the Treasury of 27 August 2003 laying down the articles of incorporation for Bank Gospodarstwa Krajowego 
(Dz. U. of 2003 No 156, item 1526). 

 
 
 
 
                                                 
institution  created  for  public  purposes,  BGK  is  exempted  from  Directive  2006/48/EC  of 
14 June 2006 relating to the taking up and pursuit of the business of credit institutions (recast)4. 

1.2  According  to  the  draft  law’s  explanatory  memorandum5,  the  planned  changes  are  related  to  ‘the 

need to ensure the transparency of Bank Gospodarstwa Krajowego’s operations to better perform 

its  tasks  and  implement  government  programmes’  and  aim  to  ‘create  a  legal  framework  within 

which BGK, as a State-owned bank, will conduct banking operations as part of its own operations, 

and at the same time support the government’s social and economic programmes, as well as local 

self-government and regional development programmes which are being implemented with the use 

of  public  funds’.  The  draft  law  streamlines  the  Law  on  BGK,  extends  the  legal  framework  for 

BGK’s  implementation  of  government  programmes  and  winds  up  some  special  public  funds, 

transferring  their  assets  to  BGK.  Furthermore,  some  formal  requirements  applying  to  the  BGK’s 

operations are relaxed. 

1.3  The draft law modifies BGK’s activities. It extends support for Polish exports to also include the 
implementation  of  government  programmes6.  It  creates  a  new  task  of  issuing  endorsements  and 

guarantees  within  the  framework  of  carrying  out  government  programmes,  on  BGK’s  or  the 
Treasury’s behalf7. The draft law also allows the Minister for Finance to increase BGK’s statutory 

funds,  by  way  of  providing  BGK  with  Treasury  bonds  issued  specifically  for  this  purpose.  Their 

issuance will be exempt from budget limits, but their value will be included in the calculation of 
government  debt8.  Furthermore,  the  draft  law  amends  Article  128b  of  the  Law  on  banking  by 

allowing  the  Financial  Supervision  Commission  to  exempt  BGK  from  some  requirements  of  the 
Law  on  banking9.  Such  a  possibility  is  extended  to  funds  provided  to  BGK  for  government 

programme purposes. Additional conditions are dropped, including the requirement for the separate 

management of such funds and exclusion of the bank’s own risk in relation to this activity. 

1.4  The  draft  law  provides  for  the  winding  up  of  several  special  public  funds,  including  the  EU 
Guarantee  Fund  and  the  transfer  of  their  assets  to  BGK’s  statutory  fund10.  The ECB  understands 

that this will result in a significant increase in BGK’s funds compared to the relative size of other 

financial institutions. 

4  
5  

6  
7  

8  
9  
10  

OJ L 177, 30.6.2006, p. 1. See Article 2. 
Parliamentary  document  No  1638  of  6  February  2009,  available  on  the  lower  chamber  of  Parliament’s  website  at 
www.sejm.gov.pl. 
Article 2(3)(a) of the draft law, amending Article 5(1)(3) of the Law on BGK. 
Article 2(3)(a) of the draft law, introducing a new Article 5(1)(5) to the Law on BGK, in conjunction with Article 1(9) of 
the draft law, introducing a new Chapter 8a to the Law of 8 May 1997 on guarantees and endorsements granted by the 
Treasury and certain legal persons (Dz.U. of 2003, No 174, item 1689). 
Article 2(4) of the draft law, introducing new Article 5a of the Law on BGK. 
Article 7 of the draft law. 
Articles 15 to 17 and 25 of the draft law. 

2 

 
                                                 
2. 

General observations  

2.1  Since the main aim of the draft law is to improve the transparency of BGK’s operations, inter alia 

to  better  implement  government  programmes,  the  ECB  understands  that  BGK  will  play  a 

substantial  role  in  assisting  the  government’s  economic  programmes  relating  to  the  current 

financial  crisis.  In  this  context,  and  to  the  extent  that  the  broadened  scope  of  BGK’s  activities 

relates  to  the  crisis,  the  ECB  reiterates  its  statements  expressed  in  its  previous  opinions  on 
measures adopted in Poland to mitigate the financial turmoil11 and emphasises the need to provide 

for  the  temporary  character  of  such  measures  to  meet  their  aim  of  restoring  normal  market 

conditions. 

2.2 

In view of the BGK’s specific status due to its public sector role and its exemption from Directive 

2006/48/EC,  the  ECB  underlines  the  need  to  maintain  a  level  playing  field  and  avoid  undue 

distortions of competition between financial institutions as a result of increasing BGK’s statutory 

funds and broadening the scope of its activities. In particular, the ECB notes that enhancing BGK’s 

activity on the credit market by providing additional funds and relaxing the requirements applying 

to  its  activities,  including the  possibility of  obtaining  an  exemption  from  the  requirements  of  the 
Law  on  banking12,  should  not  lead  to  the  crowding  out  of  credit  provided  by  other  credit 

institutions operating in the market. Furthermore, the ECB notes that the implementation of BGK’s 

tasks within the framework of government programmes must respect the Community rules on State 

aid. Appropriate safeguards, including risk management and control measures, need also to be put 

in place to ensure that BGK’s enhanced role does not impair the stability of the financial markets.   

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

Done at Frankfurt am Main, 16 March 2009. 

[signed] 

The President of the ECB 

Jean-Claude TRICHET 

11  

12  

See ECB Opinion CON/2008/80 of 28 November 2008 at the request of the Polish Minister for Finance on a draft law on 
the provision of Treasury support to financial institutions and ECB Opinion CON/2009/19 of 9 March 2009 at the request 
of the Polish Minister for Finance on a draft law on the recapitalisation of certain financial institutions.  
Article 128b of the Law on banking, as amended by Article 7 of the draft law. 

3