Opinion of the European Central Bank of 9 July 2014 on the legal framework for credit institutions (CON/2014/52)
Date: 2014-07-09
Institutions: European Central Bank
Subjects: Poland, credit institution, financial stability, financial supervision, national law

EN 

ECB-PUBLIC 

OPINION OF THE EUROPEAN CENTRAL BANK 

of 9 July 2014 

on the legal framework for credit institutions  

(CON/2014/52) 

Introduction and legal basis 

On  28  April  2014,  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  banking  and  certain  other  legal  acts 

(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 sixth indent of Article 2(1) of Council Decision 98/415/EC1, 

as the draft law relates 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 main purpose of the draft law is to transpose Directive 2013/36/EU of the European Parliament 
and  of  the  Council2  and  to  give  effect  to  the  streamlining  resulting  from  Regulation  (EU) 
No 575/2013 of the European Parliament and of the Council3. In that regard, the draft law amends 
the Law on banking of 29 August 19974 and several other legal acts. Some of these amendments go 

further than transposition or implementation of Union law. 

1.2   The  draft  law  makes  a  number  of  changes  to  the  current  law  having,  inter  alia,  the  following 

effects. 

(a)  The Polish Financial Supervision Authority (KNF) is designated  as the national competent 

authority  (NCA)  for  the  purposes  of  Article  4(1)  of  Directive  2013/36/EU.  However,  in 

accordance with limitations imposed by the Polish Constitution on the range of binding legal 

acts  of  general  application  that  may  be  adopted  and  the  power  of  administrative  bodies  to 

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Council Decision 98/415/EC of 29 June 1998 on the consultation of the European Central Bank by national authorities 
regarding draft legislative provisions (OJ L 189, 3.7.1998, p. 42). 
Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit 
institutions  and  the  prudential  supervision  of  credit  institutions  and  investment  firms,  amending  Directive  2002/87/EC 
and repealing Directives 2006/48/EC and 2006/49/EC (OJ L 176, 27.6.2013, p. 338).  
Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements 
for credit institutions and investment firms and amending Regulation (EU) No 648/2012 (OJ L 176, 27.6.2013, p. 1).  
Consolidated text published in Dziennik Ustaw (Dz. U.) of 2012, item 1376.  

 
 
 
 
                                                 
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adopt  them,  the  KNF  will  not  have  the  power  to  adopt  such  legal  acts;  this  power  will  be 

conferred on the Minister for Finance.  

(b)  Under  the  provisions  of  a  draw  law  on  which  the  ECB  has  recently  delivered an  opinion5, 

and in line with the second sentence of Article 458(1) of Regulation (EU) No 575/2013, the 

body responsible for the conduct of macroprudential oversight is not the NCA, but a newly-

created  authority,  the  Systemic  Risk  Board,  which  will  obtain  the  status  of  designated 

authority within the meaning of Article 458(1). 

(c)  The  Minister  for  Finance  will  no  longer  be  consulted  by  the  KNF  on,  or  involved  in,  the 

authorisation  of  banks  from  third  countries  that  open  branches  in  Poland.  This  aligns  the 

authorisation procedure with the procedure applicable to domestic banks, where no provision 
is made for the involvement of the Minister for Finance6. 

(d)  The  legislation  governing  Bank  Gospodarstwa  Krajowego  (BGK)  is  to  be  amended7, 

providing  for  the  payment  of  levies  by  BGK  towards  the  Polish  deposit  guarantee  scheme 
and facilitating its investment activities8. 

2. 

Authority to adopt binding legal acts of general application 

The ECB takes note of the limitations imposed by the Polish Constitution on the range of binding legal 

acts of general application that may be adopted and on the power of administrative bodies to adopt them. 

The ECB also takes note of the reasons why the draft law confers such power on the Minister for Finance, 

instead of the NCA. At the same time, the power under national legislation of any national authority other 

than the NCA to exercise an option granted to the NCA under Regulation (EU) No 575/2013 is without 

prejudice to the ECB’s power to exercise such  an option if it is or becomes the competent authority in 
accordance with Council Regulation (EU) No 1024/20139. Regulation (EU) No 575/2013 remains directly 

applicable in relation to any option provided to the NCA by the Regulation and, therefore, the ECB would 

be  competent  to  exercise  such  an  option  if  it  is  or  becomes  the  competent  authority  according  to 

Regulation (EU) No 1024/2013.  

3. 

Capital buffers 

The ECB notes that Directive 2013/36/EU, insofar as it concerns procedures for the imposition of capital 
buffers, is to be implemented by a draft law on the macroprudential oversight of the financial system10.  

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See  Article  4(3)  of  a  draft  law  on  the macroprudential  oversight  of  the  financial  system  on  which  the  ECB  has  issued 
Opinion CON/2014/18. All ECB opinions are published on the ECB’s website at www.ecb.europa.eu. 
See Article 1(22)(a) of the draft law. 
BGK is the only credit institution in Poland established by legislation as a State-owned bank to support the Government’s 
policies. It is exempted from Directive 2013/36/EU in accordance with Article 2(5)(18) thereof. 
See in particular Articles 3 and 4 of the draft law. 
Council  Regulation  (EU)  No  1024/2013  of  15  October  2013  conferring  specific  tasks  on  the  European  Central  Bank 
concerning policies relating to the prudential supervision of credit institutions (OJ L 287, 29.10.2013, p. 63). 
See Opinion CON/2014/18. 

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4.  

Board member requirements 

Board  member  requirements  for  credit  institutions,  including  requirements  relating  to  the  suitability  of 

board members, are set out in Articles 13(1) and 91(1) of Directive 2013/36/EU and are further detailed 

in the European Banking Authority’s Guidelines on the assessment of the suitability of members of the 
management  body  and  key  function  holders11.  The  requirement  in  the  draft  law  that  all  members  of  a 

credit  institution’s  management  board  and  supervisory  board  demonstrate  a  proven  knowledge  of  the 

Polish language goes far beyond such Union requirements on the suitability of board members. Member 

States  are  subject  to  the  general  principle  of  non-discrimination  on  grounds  of  nationality  enshrined  in 
Article 18 of the Treaty12 and this requirement could be considered discriminatory.   

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

Done at Frankfurt am Main, 9 July 2014. 

[signed] 

The President of the ECB 

Mario DRAGHI 

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12  

EBA/GL/2012/06,  22  November  2012,  available  on 
https://www.eba.europa.eu/. 
See, further, the principle of non-discrimination in Article 21(1) of the Charter of Fundamental Rights of the European 
Union which has the same legal value as Union primary law according to Article 6 of the Treaty on European Union. 

the  European  Banking  Authority’s  website  at 

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