Opinion of the European Central Bank of 15 March 2011 on payment services (CON/2011/23)
Date: 2011-03-15
Institutions: European Central Bank
Subjects: Poland, banking, electronic money, national law, payment system, provision of services

EN 

OPINION OF THE EUROPEAN CENTRAL BANK 

of 15 March 2011 

on payment services 

(CON/2011/23) 

Introduction and legal basis 

On 15 February 2011, the European Central Bank (ECB) received a request from the Polish Minister for 

Finance for an opinion on a draft law on payment services (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  third  and  fifth  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 provisions1, as the draft law relates to Narodowy Bank Polski (NBP) 

and to payment systems. 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 purpose of the draft law is to transpose into Polish law Directive 2007/64/EC of the European 

Parliament  and  of  the  Council  of  13 November  2007  on  payment  services  in  the  internal  market 

amending  Directives  97/7/EC,  2002/65/EC,  2005/60/EC  and  2006/48/EC  and  repealing 
Directive 97/5/EC2.  

1.2  The main provisions of the draft law that go beyond the strict implementation of Union directives 

include:  

(a)   Article  48  of  the  draft  law  transposing  Article  63  of  Directive  2007/64/EC.  Under  this 

Article, the payer is entitled, subject to certain conditions, to the refund from his payment 

service provider (PSP) of an executed payment transaction initiated by or through a payee. 

This provision provides for an exemption under which NBP, when acting as a payer’s PSP, 
may withhold such refund until funds are returned by the payee’s PSP3; 

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OJ L 189, 3.7.1998, p. 42. 
OJ L 319, 5.12.2007, p. 1. 
See Article 48(3) of the draft law. 

 
 
 
 
                                                 
(b)   Article  165(7)  of  the  draft  law  amending  Article  16  of  the  Law  of  21  July  2006  on  the 
supervision  of  financial  market4.  This  provision  relates  to  the  members  of  the  Polish 

Financial  Supervision  Authority  (FSA)  and  enables  them  to:  (i)  exchange  information, 

including  information  protected  under  other  legal  provisions,  to  the  extent  necessary  for 
the  appropriate  performance  of  financial  market  supervision5;  and  (ii)  make  available  to 

their  staff  information  obtained  by  virtue  of  their  participation  in  the  FSA’s  work, 
including information protected under other legal provisions6. 

2.   General observations 

In  accordance  with  Decision  98/415/EC,  this  opinion  only  addresses  those  provisions  of  the  draft  law 

relating to NBP and payment and settlement systems which go beyond the strict implementation of Union 

directives. While acknowledging the importance of Directive 2007/64/EC, its transposition into national 
law is not addressed in this opinion. Similarly, the provisions of the draft law7 which amend the national 

measures transposing Directive 98/26/EC of the European Parliament and of the Council of 19 May 1998 
on settlement finality in payment and securities settlement systems8 are not considered in this opinion. 

3.  

Specific observations 

3.1  NBP’s role as payment service provider 

The proposed Article 48(3) aims to prevent a situation whereby NBP, acting in the capacity of a 

payer’s PSP, is obliged to refund to the payer an authorised payment transaction executed as part 

of  a direct  debit  arrangement  before the  respective  funds  are returned  by  the  payee’s  PSP. The 

ECB understands that the rationale for this provision is the concern of the Polish legislator that 

such  bridge  financing  by  NBP  might  otherwise  be  interpreted  as  providing  credit,  in  breach  of 

Article 123 of the Treaty. 

3.2  Exchange and sharing of information by FSA members 

In  its  previous  opinions  on  Polish  legislation,  the  ECB  has  specifically  encouraged  measures 

promoting  the  exchange  of  information,  including  information  subject  to  confidentiality  and 

professional  secrecy  requirements,  between  the  key  public  authorities  in  the  financial  markets, 

such  as  NBP,  the  FSA  and  the  Financial  Stability  Committee,  as  well  as  the  sharing  of  such 
information with the members of their decision-making bodies and their staff9. In this regard, the 

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Dz. U. of 2006 No 157, item 1119. 
See new paragraph 2 in Article 16 of the Law on the supervision of the financial market. 
See new paragraph 3 in Article 16 of the Law on the supervision of the financial market. 
See Article 160 of the draft law amending the Law of 24 August 2001 on settlement finality in payment and settlement 
systems and on the supervision of such systems (consolidated text: Dz. U. of 2010 No 112, item 743).  
OJ L 166, 11.6.1998, p. 45. 
See,  for  instance,  the  recommendation  to  introduce  legal  provisions  authorising  the  exchange  of  information  between 
NBP  and  the  FSA  and  removing  possible  legal  obstacles  to  such  information  sharing,  in  particular  as  regards  the 

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ECB  welcomes  the  aim  of  ensuring  the  effective  exchange  of  information  between  FSA 

members, as well as the possibility for FSA members to share information with their staff. 

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

Done at Frankfurt am Main, 15 March 2011. 

[signed] 

The President of the ECB 

Jean-Claude TRICHET 

exchange of information subject to confidentiality and professional secrecy requirements (see paragraphs 2.4.1 and 2.4.2 
of Opinion CON/2006/15); see also the recommendation to enable access to information exchanged within the Financial 
Stability Committee to the members of NBP’s governing bodies and its staff who perform financial stability tasks but do 
not directly participate in the work of the Financial Stability Committee (see paragraph 3.3 of opinion CON/2008/39). 

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