Opinion of the European Central Bank of 27 January 2011 on closed-end investment funds issuing non-public investment certificates (CON/2011/4)
Date: 2011-01-27
Institutions: European Central Bank
Subjects: Poland, financial stability, financial supervision, investment company, national law

EN 

OPINION OF THE EUROPEAN CENTRAL BANK 

of 27 January 2011 

on closed-end investment funds issuing non-public investment certificates 

(CON/2011/4) 

Introduction and legal basis 

On 20 December 2010, the European Central Bank (ECB) received a request from the Polish Minister for 

Finance for an opinion on a draft law amending the Law on investment funds (hereinafter the ‘draft law’). 

The ECB’s competence to deliver an opinion is based on Articles 127(4) and 282(5) of the Treaty on the 

Functioning of the European Union 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  amends  the  Law  of  27  May  2004  on  investment  funds2  (hereinafter  the  ‘Law  on 

investment  funds’),  which  defines  the  rules  for  the  creation  and  operation  of  investment  funds 

registered in Poland and the rules under which foreign funds and foreign management companies 

may operate in Poland. 

1.2  The Law on investment funds provides that an investment fund may be created as: (a) an open-end 

investment fund, which sells and redeems units at the request of a unit-holder, or (b) a closed-end 

investment  fund,  which  issues  either  public  investment  certificates  or  non-public  investment 

certificates. The creation of any investment fund requires the authorisation of the Polish Financial 

Supervision Commission (FSC). 

1.3  The  draft  law  is  aimed  at  implementing  new  rules  for  the  supervision  of  closed-end  investment 

funds issuing only investment certificates which, pursuant to the fund’s articles of association, will 

not be: (a) offered by way of a public offering; (b) admitted to trading on a regulated market; or 

1 
2 

OJ L 189, 3.7.1998, p. 42. 
Dziennik Ustaw of 2004 No 146, Item 1546. 

 
 
 
 
                                                 
(c) introduced to an alternative trading system. In particular, the draft law proposes that the FSC’s 
authorisation  should  not  be  required  to  establish  such  a  fund3  as  it  issues  only  non-public 

investment  certificates  addressed 

to  professional 

investors.  Pursuant 

to 

the  explanatory 

memorandum  to  the  draft  law,  professional  investors  do  not  require  such  extensive  protection  of 

their interests by the regulator given their experience and knowledge. 

1.4  The  draft  law  also  adapts  the  requirements,  including  the  capital  requirements,  relating  to  such 

funds  to  the  new  supervision  model.  In  addition,  there  are  changes  relating  to  the  conversion  of 

non-public  investment  certificates  into  public  certificates,  taking  into  account  the  new  rules  for 
establishing closed-end investment funds which have issued non-public investment certificates4. 

2.   General observations 

2.1  The  ECB  takes  note  of  the  reasons  underlying  the  new  rules  for  the  supervision  of  closed-end 

investment  funds  as  described  in  paragraph  1.3,  and  in  particular  that  the  currently  applicable 

supervision model governing such funds does not meet the expectations and needs of professional 
investors5. The ECB also notes that pursuant to the draft law the FSC’s authorisation will no longer 
be required to establish such closed-end investment funds6. 

2.2  Although  the  draft  law  refers  to  funds  to  which  harmonised  Union  rules  do  not  apply,  the 

consulting  authorities  could  consider  using  the  experience  of  other  Member  States  in  which 

authorisation  requirements  for  closed-end  investment  funds  exist  at  a  national  level.  As  far  as 

safeguards against misassessment of investment risks are concerned, the minimum investment level 
provided for by the draft law7 could be complemented with adequate information requirements to 

ensure  that  investors  are  aware  of  and  are  able  to  assess  the  risks  connected  to  the  conducted 

transactions.  Such  information  requirements  could  include  references  to  the  risk  profile  of  the 

acquired instruments and to the supervisory regime which applies to the fund.  

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

Done at Frankfurt am Main, 27 January 2011. 

3 
4 
5 
6 
7 

See Article 1(3)-(4) of the draft law. 
See Article 1(19) of the draft law. 
See the explanatory memorandum to the draft law, p. 1. 
See Article 1(4) of the draft law. 
See Article 1(18) of the draft law. 

2 

[signed] 

Vice-President of the ECB 

Vítor CONSTÂNCIO