Opinion of the European Central Bank of 21 September 2012 on a consolidated legal framework for payment services (CON/2012/72)
Date: 2012-09-21
Institutions: European Central Bank
Subjects: Poland, electronic money, financial supervision, national law, payment system

EN 

ECB-PUBLIC 

OPINION OF THE EUROPEAN CENTRAL BANK 

of 21 September 2012 

on a consolidated legal framework for payment services 

(CON/2012/72) 

Introduction and legal basis 

On 20 August 2012, 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  payment  services  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  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 draft law amends the Law of 19 August 2011 on payment services2 (hereinafter the ‘Law on 

payment  services’)  to  fully  transpose  in  the  Polish  legal  system  Directive  2009/110/EC  of  the 

European  Parliament  and  of  the  Council  of  16  September  2009  on  the  taking up,  pursuit  and 

prudential  supervision  of  the  business  of  electronic  money  institutions  amending  Directives 
2005/60/EC and 2006/48/EC and repealing Directive 2000/46/EC3.  

1.2 

In  addition  to  transposing  Directive  2009/110/EC,  the  draft  law  introduces  certain  other 

amendments. The main areas where the proposed amendments go beyond the strict transposition of 

Union directives include, inter alia:  

(a)  

recast of the various legal provisions concerning payment services currently contained in 

several  legal  acts,  and  consolidation  in  the  Law  on  payment  services,  thereby  creating  a 

single  act  which  comprehensively  regulates  the  payment  services  market,  including  the 

operation and supervision of electronic money institutions. To this end, the draft law: 

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2  
3 

OJ L 189, 3.7.1998, p. 42. 
Dziennik Ustaw (Dz. U.) of 2011 No 199, item 1175. 
OJ L 267, 10.10.2009, p. 7. 

 
 
 
 
                                                 
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(i) 

repeals  the  Law  of  12 September 2002  on  electronic  payment  instruments4 

(hereinafter the ‘Law on  electronic payment instruments’) and transfers most of its 

provisions  to  the  Law  on  payment  services.  Following  such  consolidation,  general 

provisions  concerning  payment  institutions  will  apply  to  electronic  money 

institutions, while issues requiring detailed electronic money-specific regulation will 

be included in the proposed new Chapter VIIa of the Law on payment services; 

(ii) 

transfers  to  the  Law  on  payment  services  those  provisions  of  the  Law  of 
29 August 1997 on banking5 which regulate certain aspects of the payment services 
market6;  

(iii)  amends and aligns payment services-related definitions and terminology; 

(b)  with a view to ensuring that NBP, as the  overseer of payment systems, has access to the 
relevant  payment  services  market  data,  the  data  reporting  obligations7  of  acquirers, 
electronic  money  issuers  and  payment  instrument  issuers  are  extended8  to  also  cover 
certain  services  exempted  from  the  application  of  the  Law  on  payment  services9.  At  the 

same  time,  the  draft  law  provides  for  the  sharing  of  such  information  with  the  Financial 
Supervision Authority (KNF)10; 

(c) 

under  the  provisions  currently  in  force,  NBP’s  oversight  and  licensing  powers  over 
payment  systems11  are  applied  mutatis  mutandis  to  non-banking  providers  of  acquiring 

services; the draft law redefines the concept of acquiring services and replaces these NBP 
oversight and licensing powers with consultative powers12.  

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 systems which go beyond the strict transposition of Union directives. While 

acknowledging  the  importance  of  Directive  2009/110/EC,  its  transposition  into  national  law  is  not 

addressed in this opinion. 

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9 

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11 

12  

Dz. U. of 2002 No 169, item 1385. 
Dz. U. of 2002 No 72, item 665. 
The  transferred  provisions  regulate,  inter  alia,  the  settlement  of  direct  debit  transactions  where  one  of  the  providers 
comes from outside the European Union.  
Articles 15a–c of the Law on payment services as inserted by Article 1(5)(b) of the draft law. 
See proposed Article 6a of the Law on payment services. 
Services based on instruments that can be used to acquire goods or services only in the premises used by the issuer or 
under a commercial agreement with the issuer either within a limited network of service providers or for a limited range 
of goods or services, exempted under Article 6(11) of the Law on payment services. 
Proposed Articles 15a(3), 15b(3) and 15c(3) of the Law on payment services. 
Exercised under the Law of 24 August 2001 on settlement finality in payment systems and securities settlement systems 
and supervision over such systems (Dz. U. of 2010 No 112, item 743); see Article 16(1).  
According to proposed Article 60(3) of the Law on payment services, the KNF Chair  would be obliged to consult the 
NBP  President  whenever  an  application  for  authorisation  as  a  payment  institution  covers  the  provision  of  acquiring 
services. 

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3.  

Specific observations 

3.1  The  ECB  welcomes  the  consolidation  of  the  various  legal  provisions  concerning  the  payment 

services market in a single act, as it will increase the clarity and consistency of interpretation and 

application of the entire legal framework for payment services in Poland.  

3.2  The ECB understands that, as a result of abolishing NBP’s oversight and licensing powers over 

non-banking providers of acquiring services, such providers will no longer be subject to a dual 

licensing  regime,  consisting  of:  (i)  authorisation  as  payment  services  providers  –  by  the  KNF; 
and (ii) authorisation as operators of acquiring systems 13 – by NBP. This change will result in a 

single  supervisory  and  licensing  regime  for  all  payment  institutions,  including  those  providing 

acquiring  services,  and  should  remove  doubts currently  arising  over  the application of  the  dual 

licensing regime. At the same time, the central bank’s role has been clearly defined by enabling 

its involvement in licensing acquirers, in the form of opinions to be issued by the NBP President, 

and  by  defining  the  scope  of  acquiring  services  to  exclude  any  elements  of  clearing  and 

settlement, thereby ensuring that the new framework is without prejudice to NBP’s oversight and 
licensing powers over payment systems 14. 

3.3  The draft law amends the rules on the redeemability of electronic money15. In this context, the 

ECB  refers  to  the  importance  of  redeemability  as  a  means  to  ensure  confidence  in  electronic 

money as an effective and reliable substitute for coins and banknotes, and the relevant provisions 
of Directive 2009/110/EC which provide for unlimited redeemability16. 

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

Done at Frankfurt am Main, 21 September 2012. 

[signed] 

The President of the ECB 

Mario DRAGHI 

13 
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15 

16 

Referred to in Polish legislation as ‘authorisation and clearing systems’. 
See  the  proposed  definition  of  ‘acquiring’  in  Article  3(1)(5)  of  the  Law  on  payment  services  as  amended  by 
Article 1(3)(b) of the draft law; see also the explanatory memorandum to the draft law, p. 13. 
According to Article 60(1) of the Law on electronic payment instruments, ‘during the period of validity of the contract’ 
the  holder  of  electronic  money  may  demand  that  the  issuer  redeem  the  electronic  money  ‘at  any  time’.  The  draft  law 
removes the qualification relating to the period of the contract (see proposed Article 59i of the Law on payment services). 
At the same time, the draft law modifies the time limit for such requests for redemption by replacing the 10-year time 
limit (applicable under the general rules of civil law) with a five-year time limit (applicable specifically to the requests 
for  redemption  of  electronic  money)  running  from  when  the  relevant  contract  concerning  the  issuance  of  electronic 
money is terminated (see proposed Article 59l of the Law on payment services). 
See Article 11(2) of Directive 2009/110/EC. 

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