Opinion of the European Central Bank of 14 February 2011 on amendments to the Polish Constitution concerning adoption of the euro (CON/2011/9)
Date: 2011-02-14
Institutions: European Central Bank
Subjects: Economic and Monetary Union, European Union membership, Poland, central bank, constitution, institutional activity, national law

EN 

OPINION OF THE EUROPEAN CENTRAL BANK 

of 14 February 2011 

on amendments to the Polish Constitution concerning adoption of the euro 

(CON/2011/9) 

Introduction and legal basis 

On  10  December  2010,  the  European  Central  Bank  (ECB)  received  a  request  from  the  Marshal  of  the 

Polish  Parliament  for  an  opinion  on  a  draft  law  amending  the  Constitution  of  the  Republic  of  Poland 
(hereinafter the ‘draft law’)1. 

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  (TFEU)  and  the  third  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  relates  to  Narodowy  Bank  Polski 

(NBP). 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  Constitution3  in  order  to  address  obligations  stemming  from  Poland’s 

membership in the European Union. In particular, the draft law: (a) introduces a new Chapter Xa 

that  consolidates  provisions  relating  specifically  to  Poland’s  membership  in  the  Union; 

and (b) amends  several  existing  provisions  of  the  Constitution  relating  to  NBP,  by  introducing 

‘changes necessary for the full performance of Poland’s obligations in respect of its participation in 
economic  and  monetary  union,  allowing  for  the  future  introduction  of  …  the  euro  in  Poland’4 

(hereinafter the ‘NBP amendments’). 

1.2  The  NBP  amendments  will:  (a)  redefine  NBP’s  institutional  status  and  objectives  by  introducing 

references  to  NBP’s  membership  in  the  European  System  of  Central  Banks  (ESCB),  to  price 
stability  as  NBP’s  primary  objective  and  to  NBP’s  independence  from  other  State  bodies5; 

(b) repeal the provisions granting NBP the exclusive authority to issue money and to formulate and 

implement  monetary  policy;  (c)  abolish  the  Monetary  Policy  Council  (MPC)  as  one  of  NBP’s 

1  
2  
3 
4 
5 

Published on the Parliament’s website at www.sejm.gov.pl, parliamentary print no 3598. 
OJ L 189, 3.7.1998, p. 42. 
Dziennik Ustaw (Dz. U.) of 1997, No 78, item 483 (hereinafter the ‘Constitution’). 
See the explanatory memorandum to the draft law, p. 4. 
See the amendments introduced in Article 227(1) of the Constitution by Article 1(7) of the draft law. 

 
 
 
 
 
                                                 
decision-making  bodies6;  (d)  modify  the  scope  of  the  Supreme  Audit  Office’s  (SAO)  audit  of 
NBP7;  and  (e)  remove  the  reference  to  the  NBP  President  from  the  list  of  State  officials  that  are 
accountable before the State Tribunal8.  

1.3  The  draft  law  provides  that  all  NBP  amendments  enter  into  force  upon  Poland’s  adoption  of  the 

euro9. 

2. 

General comments 

2.1  Since  2004,  in  its  Convergence  Reports,  the  ECB  has  been  assessing  the  compatibility  of  Polish 

legislation,  including  the  Constitution,  with  the  requirements  of  primary  Union  law  related  to 

NBP’s  participation  in  the  ESCB  and,  prospectively,  in  the  Eurosystem.  In  particular,  this 

assessment  focuses  on:  (a)  whether  national  law  is  compatible  with  Union  law  on  central  bank 

independence  and  confidentiality;  (b)  whether  national  law  is  compatible  with  the  Union  law 

prohibition on monetary financing and privileged access; and (c) the NBP’s legal integration into 

the  Eurosystem.  This  Opinion  follows  the  structure  of  the  relevant  assessments  in  the  ECB’s 

Convergence Reports. 

2.2  The  legal  provisions  identified  in  the  ECB’s  Convergence  Reports  as  being  incompatible  with 

Union requirements are found in the Constitution and in ordinary legislation, and in particular, in 
the Law on Narodowy Bank Polski of 29 August 199710. This Opinion focuses on the constitutional 

provisions  amended  by  the  draft  law  and  also  makes  necessary  references  to  directly  related 

provisions  of  ordinary  legislation.  The  ECB  invites  the  Polish  authorities  to  ensure  compatibility 

with  Union  requirements  at  all  levels  of  national  legislation  within  the  timeframe  provided  for 

under Union law. Union law does not prescribe the manner in which national legislation should be 

adapted to achieve compatibility with the relevant requirements under the TFEU and the Statute of 

the European System of Central Banks and of the European Central Bank (hereinafter the ‘Statute 

of the ESCB’). This may be achieved by referring to the TFEU and the Statute of the ESCB, by 

incorporating provisions thereof and referring to their source, by deleting any incompatibility, or by 
using a combination of these methods11. Depending on the national legislator’s decision, and in line 

with  the  hierarchical  structure  of  national  legislation,  such  changes  may  be  introduced  in 

constitutional provisions, ordinary legislation, or both. 

6 

7 

8 
9 
10 
11 

See  the  amendments  introduced  in  Articles  103(1)  and  144(3)  and  Article  227  (1),  (5)  and  (6)  of  the  Constitution  by 
Article 1(2), (3) and (7) of the draft law, together with Article 2 of the draft law. 
See the amendments introduced in Articles 203(1) and 204(1)(1) of the Constitution by Article 1(5) and (6) of the draft 
law. 
See the amendments introduced in Article 198(1) of the Constitution by Article 1(4) of the draft law. 
See Article 3 of the draft law. 
Consolidated text published in Dz. U. of 2005, No 1, item 2 (hereinafter the ‘Law on NBP’). 
See the ECB’s Convergence Report, May 2010, Section 2.2.2.2, p.17. 

2 

 
 
                                                 
3. 

Central bank independence 

Functional independence 

3.1  The principle of functional independence of a national central bank (NCB) requires that an NCB’s 

primary  objective  is  stated  clearly  and  that  it  is  fully  in  line  with  the  primary  objective  of  price 

stability  pursuant  to  Article  127(1)  TFEU.  Currently,  the  Constitution  specifies  that  NBP  ‘shall 

have  the  exclusive  right  to  issue  money  as  well  as  to  formulate  and  implement  monetary  policy’ 
and  ‘shall  be  responsible  for  the  value  of  the  Polish  currency’12.  Furthermore,  the  Law  on  NBP 

states that ‘The primary objective of the activity of NBP shall be to maintain price stability, while 

supporting the economic policies of the Government, insofar as this does not constrain the pursuit 
of the primary objective of NBP’13.  

3.2  The draft law introduces a constitutional provision specifying that NBP ‘shall ensure the stability of 

prices and shall perform the tasks and exercise the competences specified in the Treaties that form 
the basis of the European Union and in ordinary legislation14’. The ECB welcomes the inclusion of 

an explicit reference to ‘price stability’ in the Constitution, as this strengthens NBP’s independence 

and ensures consistency between the Constitution and the Law on NBP. From the perspective of an 

NCB’s functional independence, which is not linked to the Member State’s adoption of the euro, 

the ECB would welcome the entry into force of the provision explicitly referring to ‘price stability’ 

as soon as possible, and prior to Poland adopting the euro.  

Institutional independence 

3.3  The  principle  of  institutional  independence  referred  to  in  Article  130  TFEU  and  Article  7  of  the 

Statute of the ESCB refers to the exercise of central bank powers and the performance of relevant 

tasks and duties which is free from external instructions or government influence. In particular, in 

relation to the powers of a State audit office exercised vis-à-vis an NCB, the following central bank 
independence safeguards should apply to State audits15: (a) the scope of the audit should be clearly 

defined in the legal framework; (b) the activities of an NCB’s independent external auditors should 

not  be  prejudiced;  (c)  the  audit  should  comply  with  the  prohibition  on  giving  instructions  to  the 

NCBs and their decision-making bodies; (d) the audit should not interfere with the NCB’s ESCB-

related  tasks;  and  (e)  the  audit  should  be  performed  on  a  non-political,  independent  and  purely 
professional basis. The ECB’s Convergence Report 201016 identifies a few incompatibilities in the 

Polish legislation in the area of institutional independence, which include: (a) Article 203(1) of the 

Constitution  on  the  scope  of  the  SAO’s  powers  to  audit  NBP;  and  (b)  the  lack  of  an  express 

prohibition for NBP and members of its decision-making bodies to seek or take outside instructions 

and the lack of an express prohibition on the Government to seek to influence members of NBP’s 

12  
13 
14 
15  

16 

Second and third sentence of Article 227(1) of the Constitution. 
See Article 3(1) of the Law on NBP. 
See the second sentence of Article 227(1) of the Constitution introduced by Article 1(7) of the draft law. 
See the ECB’s Convergence Report 2010 pp. 22 and 253, the ECB’s Convergence Report, May 2006, pp. 66 and 74, and 
paragraph 2.3 of Opinion CON/2006/4. See also Opinions CON/2002/22 and CON/2006/50. 
See the ECB’s Convergence Report 2010, Section 6.7.2.1, pp. 252 and 253. 

3 

                                                 
decision-making  bodies  in  situations  where  this  may  have  an  impact  on  NBP’s  fulfilment  of  its 

ESCB-related tasks. 

3.4  The  draft  law  introduces  two  changes  to  the  Constitution  related  to  NBP’s  institutional 

independence. First, it introduces an express general principle according to which ‘In performing 
its activities, Narodowy Bank Polski is independent of other State bodies’17. Second, it modifies the 

SAO’s  powers  vis-à-vis  NBP  by  limiting  such  powers  to  ‘audit[ing]  the  activities  of  Narodowy 

Bank  Polski  regarding  their  legality,  economic  prudence,  efficiency  and  diligence,  to  the  extent 

such activities are not related to the performance of tasks and the exercise of competences specified 
in the Treaties that form the basis of the European Union’18.  

3.5  The  general  principle  of  central  bank  independence  has  already  been  extensively  defined  in  the 
Constitutional Tribunal’s decisions19, which refer to both the TFEU and the Statute of the ESCB, as 

well as to the specific aspects of central bank independence. The ECB understands, therefore, that 

in line with those decisions the rule expressed in the proposed third sentence of Article 227(1) of 

the  Constitution  will  be  interpreted  with  reference  to  all  established  aspects  of  central  bank 

independence, i.e. functional, institutional, personal and financial. Moreover, the ECB understands 

that this rule refers to all NBP activities, i.e. its ESCB-related tasks and its other tasks. At the same 

time, the ECB expects that this rule will be elaborated on in the Law on NBP and other relevant 
legislation20.  In  this  respect,  the  ECB  reiterates  its  remarks  relating  to  NBP’s  institutional 
independence in the ECB’s Convergence Report 201021.  

3.6  As regards the SAO, the proposed wording of Article 227(2) of the Constitution excludes ESCB-

related  tasks  and  competences  performed  by  NBP  from  the  scope  of  an  SAO  audit.  The  ECB 

considers the joint effect of both this exclusion and the express introduction into the Constitution of 

the general principle of central bank independence an important enhancement of legal certainty in 

the area of NBP’s institutional independence. This is subject to the following specific observations: 

(a)  in  order  to  achieve  full  compliance  with  the  principle  of  institutional  independence,  the 

prohibition on giving and taking instructions referred to in Article 130 TFEU and Article 7 of the 

Statute  of  the  ESCB  needs  to  be  expressly  referred  to  in  Polish  legislation  so  that  it  specifically 
applies to, inter alia, the SAO22; (b) the scope of the SAO’s audit of NBP should, for reasons of 

legal  certainty,  be  further  defined  to  safeguard  NBP’s  institutional  independence.  In  particular, 

relevant  legislation  should  ensure  that  when  auditing  NBP,  the  application  by  the  SAO  of  the 

17 
18 

19 

20 

21 
22 

See third sentence of Article 227(1) of the Constitution introduced by Article 1(7) of the draft law. 
See  Article  227(2)  of  the  Constitution,  as  amended  by  Article  1(7)  of  the  draft  law,  together  with  amendments  to 
Articles 103(1) and 144(3) of the Constitution introduced by Article 1(2) and (3) of the draft law. 
See  in  particular  the  following  judgements  of  the  Polish  Constitutional  Tribunal:  judgment  K  25/99  of  28  June  2000, 
(Orzecznictwo Trybunału Konstytucyjnego (OTK) ZU No 5/2000, item 141); judgement K 26/03 of 24 November 2003 
(OTK  ZU  No  9/A/2003,  item  95);  judgement  U  4/06  of  22  September  2006  (OTK  ZU  No  8/A/2006,  item  109);  and 
judgement Kp 4/08 of 16 July 2009 (OTK ZU No 7/A/2009, item 112).  
Compare, for example, solutions adopted in this respect by the Republic of Slovakia: Article 56(1)(1) of the Constitution 
of  Republic  of  Slovakia  (general  rule  of  central  bank  independence)  and  Article  7(7)  of  Law  on  Národná  banka 
Slovenska (prohibition for members of the central bank governing bodies to receive external instructions). 
See Section 6.7.2.1 of the ECB’s Convergence Report 2010. 
See the ECB’s Convergence Report, May 2010, Section 6.7.2.1, p. 252. 

4 

                                                 
‘efficacy  criterion’23  does  not  extend  to  an  evaluation  of  NBP’s  activities  related  to  its  primary 
objective of price stability24.  

Personal independence 

3.7  The principle of personal independence covers security of tenure and safeguards against arbitrary 

dismissal of members of the NCB’s decision-making bodies. The ECB’s Convergence Report 2010 
identified  several  provisions  of  the  Law  on  NBP  and  of  the  Law  on  the  State  Tribunal25  that  are 

incompatible  with  TFEU  requirements  in  this  respect.  In  particular,  these  laws  establish  grounds 

for  the  dismissal  of  NBP’s  President  and  other  members  of  NBP’s  decision-making  bodies 

involved in the performance of ESCB-related tasks which are in addition to the exclusive grounds 

for dismissal specified in Article 14.2 of the Statute of the ESCB. One such additional ground for 

dismissal  refers  specifically  to  the  NBP  President  who  may  be  suspended  as  a  result  of  an 
indictment  by  the  Parliament  before  the  State  Tribunal26,  and  may  ultimately  be  removed  from 
office by a decision of this Tribunal27. 

3.8  The  draft  law  removes  the  reference  to  NBP’s  President  from  the  constitutional  provision  listing 
State  officials  that  are  accountable  before  the  State  Tribunal28.  The  ECB  welcomes  this 

constitutional  amendment  as  it  eliminates  the  respective  incompatibly  with  Article  14.2  of  the 

Statute of the ESCB, and understands that it will be followed by relevant legislative amendments. 

At  the  same  time,  the  ECB  reiterates  the  remarks  made  in  the  ECB’s  Convergence  Report  2010 
which relate to the grounds for dismissal of members of NBP’s decision-making bodies29. 

4. 

Legal integration of NBP into the Eurosystem 

4.1  Legal  integration  of  NCBs  into  the  Eurosystem  requires  that  national  legislation  be  adapted  to 

allow  for  the  performance  of  Eurosystem-related  tasks  and  compliance  with  the  ECB’s  decisions 

once  the  Member  State  concerned  has  adopted  the  euro.  The  ECB’s  Convergence  Report  2010 

identifies  several  legislative  provisions  that  are  incompatible  with  TFEU  requirements,  in 

particular: (a) the provisions of the Constitution and of the Law on NBP which provide for NBP’s 

powers with regard to monetary policy and certain other fields, which do not recognise the ECB’s 

powers in those fields; and (b) the provision of the Law on NBP which defines NBP’s secondary 

objective  in  a  manner  that  does  not  reflect  the  secondary  objective  of  supporting  the  general 

economic policies in the Union, in accordance with Article 127(1) TFEU. 

23  
24 
25 
26 

27 
28 
29 

See the second sentence of Article 203 of the Constitution. 
See the ECB’s Convergence Report 2010, p. 22, and paragraph 2.3 of Opinion CON/2009/77. 
The Law on the State Tribunal of 26 March 1982; consolidated text published in Dz. U. of 2002, No 101, item 925. 
See Article 9(5) of the Law on NBP, together with the second sentence of Article 11(1) and Article 1(1)(3) of the Law on 
the State Tribunal. 
See Article 25(3) together with Article 3 and Article 1(1)(3) of the Law on the State Tribunal. 
See the amendments introduced in Article 198(1) of the Constitution by Article 1(4) of the draft law. 
See the ECB’s Convergence Report 2010, Section 6.7.2.2 recommending amendments to Articles 9(3), 9(5), 13(5) and 
second sentence of Article 17(2b) of the Law on NBP. 

5 

 
                                                 
4.2  The  draft  law:  (a)  reformulates  the  description  of  NBP’s  institutional  status  by  introducing  a 
reference  to  NBP’s  membership  in  the  ESCB30;  (b)  defines  NBP’s  objectives  by  providing  that 

NBP ‘shall ensure the stability of prices and shall perform the tasks and exercise the competences 
specified in the Treaties which form the basis of the European Union and in ordinary legislation’31; 

(c)  removes  NBP’s  exclusive  powers  to  issue  money  and  to  formulate  and  implement  monetary 
policy32; and (d) abolishes the MPC, an NBP decision-making body responsible for the formulation 
and  implementation  of  monetary  policy33.  The  ECB  welcomes  these  amendments,  with  the 

reservation  that,  for  reasons  of  legal  certainty,  the  Constitution  should  also  refer  in  a  sufficiently 

precise  manner  to  the  secondary  objective  of  the  ESCB  specified  in  Article 127(1)  TFEU  and 

Article  2  of  the  Statute  of  the  ESCB.  Those  provisions  provide  that,  without  prejudice  to  the 

primary  objective  of  price  stability,  an  NCB  must  support  the  general  economic  policies  of  the 

Union with a view to contributing to the achievement of Union objectives as laid down in Article 3 

of  the  Treaty  on  European  Union.  The  ECB  understands  that  the  above-mentioned  constitutional 

amendments  will  be  followed  by  the  necessary  amendments  in  the  Law  on  NBP,  which  are 
indicated in the ECB’s Convergence Report 201034.  

5. 

Entry into force of the NBP amendments 

The  draft  law  provides  that  all  NBP  amendments  are  to  enter  into  force  at  a  later  time  than  the 

remaining  amendments  introduced  in  the  Constitution  by  the  draft  law,  i.e.  only  when  Poland 

adopts the euro. The ECB draws the Polish authorities’ attention to the fact that, to comply with 

Article 131 TFEU requiring compatibility of Polish legislation with the TFEU and the Statute of 

the  ESCB,  relevant  Polish  legislation  had  to  be  adjusted  by  the  date  of  Polish  accession  to  the 

Union,  i.e.  1  May  2004.  Hence,  amendments  addressing  the  outstanding  issues  identified  in  the 

ECB’s  Convergence  Report  2010  concerning  central  bank  independence,  confidentiality  and 

compliance with the monetary financing prohibition need to be adopted and enter into force as soon 

as  possible,  irrespective  of  when  Poland  adopts  the  euro.  In  relation  to  the  constitutional 

amendments  introduced  by  the  draft  law,  this  applies  to  the  amendments  discussed  in 

paragraphs 3.3 to 3.8 of this Opinion. Adjustments necessary to ensure full integration of NBP into 

the Eurosystem, while they should also be adopted as soon as possible, must enter into force on the 

date Poland adopts the euro. This relates to the constitutional amendments discussed in paragraph 4 

of this Opinion. Specifically, as regards the introduction in the Constitution of an express reference 

to  price  stability  discussed  in  paragraphs  3.1  to  3.2 of  this  Opinion,  the  ECB would  welcome  its 

entering  into  force  before  the  date  Poland  adopts  the  euro,  since  it  strengthens  NBP’s  functional 

30 
31 
32 
33 

34 

See the amendments introduced in Article 227(1) of the Constitution by Article 1(7) of the draft law. 
See the second sentence of Article 227(1) of the Constitution introduced by Article 1(7) of the draft law. 
See the amendments introduced in Article 227(2), (5) and (6) of the Constitution by Article 1(7) of the draft law. 
See the amendments introduced in Articles 103(1), 144(3) and 227(1) of the Constitution by Article 1(2), (3) and (7) of 
the draft law, together with Article 2 of the draft law. 
See the ECB’s Convergence Report 2010, Section 6.7.5, p. 255. 

6 

 
                                                 
independence. The ECB recommends that Article 3 of the draft law be amended in accordance with 

the above comments.  

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

Done at Frankfurt am Main, 14 February 2011. 

[signed] 

The President of the ECB 

Jean-Claude TRICHET 

7