Opinion of the European Central Bank of 17 August 2011 on the introduction of omnibus accounts in the legal framework for clearing and settlement systems (CON/2011/63)
Date: 2011-08-17
Institutions: European Central Bank
Subjects: Poland, financial stability, foreign investment, intra-EU payment, national law, securities

EN 

ECB-PUBLIC 

OPINION OF THE EUROPEAN CENTRAL BANK 

of 17 August 2011 

on the introduction of omnibus accounts in the legal framework for clearing and settlement systems 

(CON/2011/63) 

Introduction and legal basis 

On  19  July  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 trading in financial instruments and certain 

other laws (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  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  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  29  July  2005  on  trading  in  financial  instruments2  and  several 

other  laws  with  a  view  to  extending  the  securities  registration  system  in  Poland  to  omnibus 
accounts,  to  be  opened  and  operated,  within  the  Polish  central  securities  depository3  (CSD)  or 

within a system for the registration of securities operated by Narodowy Bank Polski, for the benefit 

of eligible institutions from outside Poland. 

1.2  Under the current securities registration system4, foreign investors may only hold Polish securities 
on  a  dedicated  securities  account  opened  in  their  own  name  by  a  local  intermediary  or  KDPW5. 

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OJ L 189, 3.7.1998, p. 42. 
Consolidated text published in Dziennik Ustaw (Dz. U) of 2010 No 211, item 1384. 
As operated by the national depository for securities (Krajowy Depozyt Papierów Wartościowych (KDPW)) or KDPW’s 
subsidiary  to  which  it  delegated  the  operation  of  the  central  securities  depository  under  Article  48(7)  of  the  Law  on 
trading in financial instruments. 
The current set-up is characterised by two levels of records. The first level is deposit accounts maintained by KDPW for 
investment firms, custodian banks and other entities authorised to maintain securities accounts, and the second level is 
securities  accounts,  maintained by  the  holders  of  deposit  accounts  (and  to  a  limited  extent  also  by  KDPW),  where  the 
identity of the holders of specific securities can be established (see explanatory memorandum to the draft law, p. 1). 

 
 
 
 
                                                 
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The introduction of omnibus accounts will remove the additional administrative burden and costs 

incurred  by  foreign  investors  as  a  result  of  this  restriction  by  offering  other  holding  options.  In 

particular, foreign institutions holding an account with a foreign CSD will have the possibility of 

executing transactions in Polish financial instruments through an omnibus account of that foreign 

CSD  with  KDPW,  which  will  foster  the  establishment  of  operational  links  between  KDPW  and 
foreign CSDs6. 

1.3  To  this  end,  the  draft  law  defines,  inter  alia:  (i)  the  concept  of  omnibus  accounts7;  (ii)  eligible 
omnibus  account  holders  and  operators8;  and  (iii)  reporting  obligations  for  omnibus  account 
holders9.  In  addition,  the  draft  law  accordingly  amends  legal  provisions  contained  in  laws  other 

than  the  Law  on  trading  in  financial  instruments,  such  as  taxation  provisions,  to  enable  the  full 
integration of the omnibus account in the Polish legal framework10.  

2.  

Specific observations 

2.1  The ECB understands that the adoption of the draft law will, as one of its outcomes, remove a legal 

barrier preventing access by KDPW to TARGET2-Securities (T2S) to be offered on the basis of the 

Eurosystem platform. Specifically, the proposed Article 8a(2)(1) of the Law on trading in financial 

instruments  provides  that  ‘legal  persons  or  other  entities  established  outside  Poland  which 

discharge duties in relation to central registration of securities’ will be among the entities eligible to 

hold omnibus accounts with KDPW. The ECB understands that this provision will enable KDPW 

to open omnibus accounts for the benefit of foreign CSDs. The ECB welcomes this alignment of 

the Polish legal framework with one of the T2S eligibility criteria, requiring the participating CSDs 

to make  each security/International Securities Identification Number for which they are an issuer 
CSD (or technical issuer CSD) available to other CSDs in T2S upon request11.  

2.2  The ECB also notes that to allow for KDPW’s participation in T2S, the Law on trading in financial 

instruments  should  be  further  adapted  in  the  future  so  that  it  cannot  be  interpreted  as  preventing 

KDPW from outsourcing certain functions related to securities settlement to the Eurosystem acting 

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In particular, under the current set-up, foreign investors are prevented from holding Polish securities on an account with 
an intermediary located in the same country as the investor, the former holding the securities through an omnibus account 
either directly with KDPW or with an institution in Poland which holds the securities through an account opened for it by 
KDPW.  
See explanatory memorandum to the draft law, pp. 1-3.  
The draft law defines omnibus accounts as accounts in which dematerialised securities may be registered where they do 
not belong to the persons for whom these accounts are maintained; see Article 8a(1) of the Law on trading in financial 
instruments, as amended by the draft law. 
The group of eligible holders of omnibus accounts includes, inter alia (subject to further qualifications): foreign central 
securities depositories, foreign investment firms and brokerage houses, as well as credit institutions outside the Union; 
see Article 8a(2) of the Law on trading in financial instruments, as amended by the draft law.  
See Article 8b of the Law on trading in financial instruments, as amended by the draft law. 
See in particular Article 4 of the draft law amending the Law of 26 July 1991 on personal income tax (Dz. U. of 2010 
No 51, Item 307); Article 5 of the draft law amending the Law of 15 February 1992 on corporate income tax (Dz. U. of 
2011 No 74, Item 397). 
See  in  particular  Article  15(1)(c)  of  Guideline  ECB/2010/2  of  21  April  2010  on  TARGET2-Securities  (OJ  L  118, 
12.5.2010, p. 65). 

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as operator of the T2S platform. Particular attention in this regard needs to paid to Article 48(7) and 

Article  150(1)(13a)  of  the  Law  on  trading  in  financial  instruments,  which  may  be  interpreted  as 

allowing KDPW to transfer information related to securities settlement solely to its subsidiaries to 
which  it  has  delegated  operation  of  the  central  securities  depository12.  The  ECB  recommends 

adequately amending or supplementing the above provisions to allow KDPW to outsource certain 

securities settlement functions to a third-party service provider, and to transfer relevant information 

to them. 

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

Done at Frankfurt am Main, 17 August 2011. 

[signed] 

The President of the ECB 

Jean-Claude TRICHET 

12 

See  also  paragraph  4  in  Opinion  CON/2008/20  and  paragraph  2.2  in  Opinion  CON/2009/55.  All  ECB  opinions  are 
published on the ECB’s website at www.ecb.europa.eu. 

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