Opinion of the European Central Bank of 24 June 2009 on amendments to the rules governing the central securities depository (CON/2009/55)
Date: 2009-06-24
Institutions: European Central Bank
Subjects: Poland, financial stability, national law, payment system, securities

EN 

OPINION OF THE EUROPEAN CENTRAL BANK 

of 24 June 2009 

on amendments to the rules governing the central securities depository 

(CON/2009/55) 

Introduction and legal basis 

On 11 May 2009 the European Central Bank (ECB) received a request from the Marshall of the Polish 

Parliament for an opinion on a draft law amending the Law on trading in financial instruments and certain 
other laws1 (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, fifth 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), payment and settlement 

systems and 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 and scope of the consultation 

1.1  The  draft  law  replicates  the  Law  of  4  September  2008  on  amendments  to  the  Law  on  trading  in 
financial instruments and to certain other laws3 (hereinafter, the ‘Law of 4 September 2008’) which 

1  

2  
3  

The proposed amendments amend the Law of 29 July 2005 on trading in financial instruments (Dz. U. (Dziennik Ustaw) 
of 2005, No 183, Item 1538); the Law of 24 August 2001 on settlement finality in payment and settlement systems and 
on  the  supervision  of  such  systems  (Dz.  U.  2001,  No  123,  item  1351;  the  Law  of  29  August  1997  on  banking 
(consolidated text: Dz. U. 2002, No 72, item 665); the Law of 25 July 2005 on supervision of the capital market (Dz. U. 
of 23 September 2005 No 183, Item 1537); and the Law of 21 July 2006 on supervision of the financial market (Dz. U. of 
4 September 2006 No 157, Item 1119). 
OJ L 189, 3.7.1998, p. 42. 
As adopted together with the Law of 4 September 2008 on amendments to the Law on public offering and conditions for 
introducing  financial  instruments  to  the  organised  trading  system,  on  public  companies  and  on  amendments  to  certain 
other laws (Dz. U. of 29 December 2008 No 231, Item 1547); the Law of 4 September 2008 on amendments to the Law 
on  investment  funds,  the  Law  on  banking  and  the  Law  on  supervision  of  the  financial  market  (Dz.  U.  of 
29 December 2008 No 231, Item 1546). 

 
 
 
 
 
                                                 
aimed to transpose a number of Community directives into the Polish legal system4, as well as to 

make other amendments to the Polish capital market regulation. The Law of 4 September 2008 has 

undergone the full legislative procedure in the Parliament but has not yet entered into force due to a 

challenge before the Constitutional Tribunal against some of its provisions relating to NBP’s share 
ownership in the Polish central securities depository5. According to the explanatory memorandum 
to the draft law6, the aim of the draft law currently presented for consultation is to re-enact those 
provisions of the Law of 4 September 2008 which are not subject to the constitutional challenge7. 

1.2  The ECB has previously commented on the draft versions of the Law of 4 September 2008 in its 
Opinions CON/2008/20 and CON/2006/538 as regards draft provisions other than those transposing 

Community  directives.  The  present  opinion  refers  to  those  previous  ECB  opinions.  In  particular, 

the provisions affecting the NBP’s share ownership in the Polish central securities depository (i.e. 

the now constitutionally challenged provisions of the Law of 4 September 2008) were commented 

on in paragraphs 3.1 to 3.3 of ECB Opinion CON/2008/20.  

2. 

General observations 

2.1  The ECB reiterates some of its comments in its opinions CON/2008/20 and CON/2006/53, to the 

extent they have not been incorporated in the Law of 4 September 2008, and now in the draft law. 

Such  ECB  comments  relate  in  particular  to:  (i)  the  need  to  adapt  the  statutory  definition  of 

‘settlement’ to standards developed by the Committee on Payment and Settlement Systems of the 
Bank for International Settlements and by the ECB9; (ii) the need to prevent spillover of risks from 

the  entity  providing  central  counterparty  services  to  the  entity  providing  security  settlement 
services10; (iii) the need to assign tasks related to ensuring the proper operation of the clearing and 

4 

5  

6  
7  

8  
9  

10  

The Directives to be implemented by the draft law include: (i) Directive 2004/39/EC of the European Parliament and of 
the Council of 21 April 2004 on markets in financial instruments amending Council Directives 85/611/EC and 93/6/EEC 
and  Directive  2000/12/EC  of  the  European  Parliament  and  of  the  Council  and  repealing  Council  Directive  93/22/EEC 
(OJ L 145, 30.4.2004, p. 1); (ii) 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);  (iii) 
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);  and  (iv)  Commission  Directive 
2006/73/EC of 10 August 2006 implementing Directive 2004/39/EC of the European Parliament and of the Council as 
regards organisational requirements and operating conditions for investment firms and defined terms for the purposes of 
that Directive (OJ L 241, 2.9.2006, p. 26). 
See Article 19 of the Law of 4 September 2008. The constitutionality of that provision was challenged before the Polish 
Constitutional Tribunal by Poland's President on 23 September 2008 (see pending Case Kp 4/08). 
See page 2 of the explanatory memorandum to the draft law. 
See also judgment of the Court of Justice of the European Communities of 19 March 2009 in Case C-143/08 Commission 
of the European Communities v Republic of Poland declaring that, ‘by failing to adopt, within the period prescribed, all 
the laws, regulations and administrative provisions necessary to comply with Commission Directive 2006/73/EC …, the 
Republic of Poland has failed to fulfil its obligations under that directive’. 
All ECB opinions are available on the ECB’s website at www.ecb.europa.eu. 
See paragraph 2.3 of ECB Opinion CON/2006/53 and Article 45b(2) of the Law on trading in financial instruments, as 
amended by the draft law. The ECB notes, however, an amendment to the definition of ‘clearing’ which, following the 
ECB’s  suggestion,  was  broadened  to  include  activities  other  than  the  establishment  of  mutual  obligations  of  the 
counterparties to the transaction, as performed by entities providing third-party services to such direct counterparties. 
See paragraph 2.4 of ECB Opinion CON/2006/53 and Article 68a(11) of the Law on trading in financial instruments, as 
amended by the draft law. 

2 

 
                                                 
settlement  process  not  only  to  Krajowy  Depozyt  Papierów  Wartościowych  (KDPW,  the  Polish 

central securities depository) but also to other clearing or settlement system operators which may 
be  established  in  Poland11;  (iv) the  need  for  clearing  and  settlement  system  operators  to  submit 

rules  on  business  continuity  measures  and  on  secondary  sites  as  a  prerequisite  for  obtaining  a 
licence12; (v) the need to ensure express coverage of clearing houses under the Law on settlement 
finality13;  (vi)  the  need  ‘for  NBP  to  be  expressly  made  responsible,  as  one  of  its  tasks,  for  the 

oversight  of  all  securities  clearing  and  settlement systems  that  operate  or  will  operate  in  Poland, 

including  the  systems’  rules,  and  given  access  to  all  information  and  data  relevant  to  the 
performance of such oversight tasks’14. 

2.2  Specifically,  the  ECB  reiterates  paragraph  4  of  Opinion  CON/2008/20  on  the  draft  provision 

foreseeing that certain KDPW tasks may be delegated outside KDPW but solely to KDPW’s own 
subsidiaries15.  The  ECB  noted  in  this  context  that,  while  national  laws  may  provide  for 

authorisation or review requirements in respect of delegating or outsourcing to third parties of the 

activities of the central securities depositories (CSDs) conducting settlement functions, such laws 

normally do not require legal dependence by the CSD on third parties to which CSD activities are 

delegated or outsourced. It may also be desirable for the CSD to have more flexibility to outsource 

certain  technical  operations  where  the  CSD  retains  management  and  control  over  the  outsourced 

functions, which would not prejudice further evolution of the securities infrastructure in Poland, its 

integration with the European securities infrastructure and further market harmonisation. 

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

Done at Frankfurt am Main, 24 June 2009. 

The President of the ECB 

Jean-Claude TRICHET 

11  

12  
13  
14  
15  

See  paragraph  2.5  of  ECB  Opinion  CON/2006/53  and  Articles  48  and  68a-68e  of  the  Law  on  trading  in  financial 
instruments, as amended/introduced by the draft law. 
See paragraph 2.6 of ECB Opinion CON/2006/53. 
See paragraph 2.10 of ECB Opinion CON/2006/53. 
See paragraph 3(5)(i) of ECB Opinion CON/2008/20.  
See Article 48(7) of the Law on trading in financial instruments, as amended by the draft law. 

3