Opinion of the European Central Bank of 5 August 2011 on amendments to the legal framework for payment systems and clearing and settlement systems (CON/2011/62)
Date: 2011-08-05
Institutions: European Central Bank
Subjects: Poland, bankruptcy, cross-border dimension, financial stability, guarantee, national law, payment system, securities

EN 

ECB-PUBLIC 

OPINION OF THE EUROPEAN CENTRAL BANK 

of 5 August 2011 

on amendments to the legal framework for payment systems and clearing and settlement systems 

(CON/2011/62) 

Introduction and legal basis 

On  27  June  2011,  the  European  Central  Bank  (ECB)  received  a  request  from  the  Polish  Ministry  of 

Finance for an opinion on a draft law amending the Law on settlement finality in payment systems and 

securities  settlement  systems  and  the  rules  for  the  supervision  of  such  systems,  the  Law  on  financial 

collateral and the Law on bankruptcy and rehabilitation (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  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  provisions1,  as  the  draft  law  relates  to  Narodowy  Bank  Polski 

(NBP), to payment and settlement systems and to 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 24 August 2001 on settlement finality in payment systems and 
securities  settlement  systems  and  the  rules  for  the  supervision  of  such  systems2  (hereinafter  the 
‘Law  on  settlement  finality’),  the  Law  of  2  April  2004  on  financial  collateral3  and  the  Law  of 
28 February  2003  on  bankruptcy  and  rehabilitation4  (hereinafter  the  ‘Law  on  bankruptcy  and 

rehabilitation’). The main purpose of the draft law is the transposition of Directive 2009/44/EC of 

the  European  Parliament  and  of  the  Council  of  6  May  2009  amending  Directive  98/26/EC  on 

settlement  finality  in  payment  and  securities  settlement  systems  and  Directive  2002/47/EC  on 
financial  collateral  arrangements  as  regards  linked  systems  and  credit  claims5,  inter  alia,  by 

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OJ L 189, 3.7.1998, p. 42. 
Dz. U. (Dziennik Ustaw) of 2010 No 112, Item 743. 
Dz. U. of 2004 No 91, Item 871. 
Dz. U. of 2009 No 175, Item 1361. 
OJ L 146, 10.6.2009, p. 37. 

 
 
 
 
                                                 
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introducing into Polish law the concept of interoperable systems6 and extending the scope of assets 
eligible as financial collateral to include credit claims7. Furthermore, the draft law recasts certain 

provisions  previously  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  in 

order  to  take  into  account,  inter  alia,  the  possibility  of  opening  foreign  insolvency  proceedings 
against entities established in Poland9. Finally, several clarifying and streamlining amendments are 

introduced. 

1.2  The draft law introduces two specific amendments related to NBP. First, an express legal basis is 

provided  for NBP  to  request  from  entities  suspected  of  operating  payment  systems  on  a  de  facto 

basis,  i.e.  without  the  required  authorisation,  information  required  for  an  application  for  such 
authorisation10.  Second,  the  NBP’s  obligation  to  notify  systemically  important  systems  to  the 
Commission  is  extended  in  line  with  Directive  2009/44/EC11  to  include  also  information  on 
operators of such systems12.  

2.  

Transposition of Directives 2009/44/EC and 98/26/EC 

In line with Article 1(2) of Council Decision 98/415/EC this opinion does not address provisions of the 

draft law exclusively transposing Directive 2009/44/EC into Polish law. Nevertheless, the ECB welcomes 

the  intention  expressed  in  the  draft  law  of  additionally  reviewing  the  provisions  transposing  Directive 

98/26/EC into Polish law. In view of a substantial rise in the number of cross-border insolvency cases, 

including  foreign  insolvency  proceedings  against  entities  established  in  Poland,  the  possibility  of  such 

proceedings  against  participants  or  system  operators  needs  to  be  taken  into  account  to  ensure  the 

completeness  of  protection  given  by  the  Polish  legal  framework  with  regard  to  payment  systems  and 

securities settlement systems in line with Directive 98/26/EC.   

3.  

Specific observations 

3.1   The ECB welcomes the clarification in the draft law of NBP’s right to request information from the 

entities suspected of operating a payment system without the authorisation required by the Law on 

settlement  finality.  Providing  an  express  legal  basis  for  such  right  –  although  it  is  already 

acknowledged in practice – will enhance legal certainty and contribute to improving the efficiency 

of central bank oversight of payment systems. 

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See Articles 1(1)(b), 1(3), 1(5)-(8) of the draft law. 
See Articles 2(1), 2(3)-(9) of the draft law. 
OJ L 166, 11.6.1998, p. 45. 
See Articles 1(1)(e) and 1(4) of the draft law. 
See Article 1(9) of the draft law, introducing a new paragraph (6) to Article 18 of the Law on settlement finality; see also 
Articles  17  and  17a  of  the  Law  on  settlement  finality  which  define  the  scope  of  information  to  be  provided  in  an 
application for an authorisation to operate a payment system. 
See Article 1(11) of Directive 2009/44/EC amending Article 10(1) of Directive 98/26/EC. 
See Article 1(10) of the draft law, amending Article 23 of the Law on settlement finality. 

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3.2  As mentioned in previous ECB opinions13, payment systems and securities settlement systems are 

interlinked,  particularly  in  view  of  the  use  of  the  ‘delivery  versus  payment’  mechanism,  under 

which settlements of securities and transfers of funds take place simultaneously. Such interlinking 

is further enhanced by the acknowledgment of interoperable systems under Directive 2009/44/EC 

and  the  draft  law.  There  is  therefore  a  strong  argument  in  favour  of  the  model  used  in  some 

Member States of integrating the oversight of payment systems with the oversight of clearing and 

settlement  systems,  with  national  central  banks  performing  the  oversight  function.  In  this  regard, 
the ECB reiterates the observations made in previous ECB opinions14 regarding the need to ensure 

NBP’s responsibility for the oversight function in relation to clearing and settlement. An oversight 

function is inherent in the central banks’ task of promoting a sound market infrastructure, in order 

to safeguard the effectiveness of monetary policy and the overall stability of the financial system. 

Hence, the ECB reiterates its general recommendation that NBP is expressly made responsible for 

the  oversight  of  all  clearing  and  settlement  systems  operating  in  Poland,  including  the  systems’ 

rules, and given access to all information and data relevant to the performance of such oversight 

tasks.  Such  change  would  then  require  extending  the  proposed  powers  of  NBP  to  require 

information from de facto payment systems to cover also clearing and settlement systems. 

3.3  

In relation to the proposed amendment to Article 23 of the Law on settlement finality15, the ECB 

understands that the Polish legislator would shortly initiate another amendment in order to bring it 

in line with Directive 2010/78/EU of the European Parliament and of the Council of 24 November 

2010  amending  Directives  98/26/EC,  2002/87/EC,  2003/6/EC,  2003/41/EC,  2003/71/EC, 

2004/39/EC,  2004/109/EC,  2005/60/EC,  2006/48/EC,  2006/49/EC  and  2009/65/EC  in  respect  of 

the  powers  of  the  European  Supervisory  Authority  (European  Banking  Authority),  the  European 

Supervisory  Authority  (European  Insurance  and  Occupational  Pensions  Authority)  and  the 
European Supervisory Authority (European Securities and Markets Authority)16, providing for the 

European  Securities  and  Markets  Authority  to  replace  the  Commission  as  the  recipient  of 
notifications of payment systems and securities settlement systems17. 

3.4.  Article 67 of the Law on bankruptcy and rehabilitation18 excludes assets provided as collateral in 

connection  with  participation  in  a  system  from  the  bankruptcy  estate  of  the  bankrupt  system 

participant  or  any  other  entity  which  provided  the  collateral.  In  addition,  the  proposed  second 
sentence introduced by the draft law in Article 77(4) of the Law on bankruptcy and rehabilitation19, 

which refers to Article 67, exempts those assets from the general rule according to which legal acts 

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19 

See  ECB  Opinions  CON/2006/20,  CON/2007/7  and  CON/2007/20.  All  ECB  opinions  are  published  on  the  ECB’s 
website at www.ecb.europa.eu. 
See ECB Opinions CON/2006/15 and CON/2006/53. 
As amended by Article 1(10) of the draft law. 
OJ L 331, 15.12.2010, p. 120. 
See Article 10(1) of Directive 98/26/EC, as amended by Article 1(2) of Directive 2010/78/EU. According to Article 13(1) 
of Directive 2010/78/EU, this provision should be transposed by the Member States by 31 December 2011. 
As amended by Article 3(4) of the draft law.  
As introduced by Article 3(5) of the draft law. 

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of  the  bankrupt  entity  concerning  the  assets  included  in  the  bankruptcy  estate  are  null  and  void. 

Doubts may arise as to how these two provisions interact, in particular as regards the moment when 

such assets may be provided as collateral by the bankrupt participant or used for that purpose by the 

system operator. Articles 67 and 77 would benefit from some more clarity in this respect. 

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

Done at Frankfurt am Main, 5 August 2011. 

[signed] 

The President of the ECB 

Jean-Claude TRICHET 

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