Opinion of the European Central Bank of 10 March 2015 on the legal framework for Narodowy Bank Polski (CON/2015/9)
Date: 2015-03-10
Institutions: European Central Bank
Subjects: Eurosystem, Poland, approximation of laws, central bank, institutional activity, money, national law

EN 

ECB-PUBLIC 

OPINION OF THE EUROPEAN CENTRAL BANK 

of 10 March 2015  

on the legal framework for Narodowy Bank Polski 

(CON/2015/9) 

Introduction and legal basis 

On 30 December 2014 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 Narodowy Bank Polski and the Law on higher 

education (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  first,  second  and  third  indents  of  Article 2(1)  of  Council 
Decision 98/415/EC1, as the draft law relates to currency matters, means of payment and national central 

banks.  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 August 1997 on Narodowy Bank Polski2 (hereinafter the ‘Law 

on NBP’) with a view to revising and updating the legal framework for the central bank in Poland.  

1.2  To this end, the draft law:  

(a) 

subject  to  a  transitional  period,  reduces  the  number  of  members  of  the  Monetary  Policy 

Council  (MPC),  NBP’s  independent  rate-setting  body,  and  introduces  a  rolling  membership 

system  with  overlapping  terms  of  office  for  MPC  members  appointed  by  the  various 

appointing  bodies,  in  order  to  enhance  the  stability  of  the  MPC’s  composition  and  the 

continuity of its decision-making process; 

(b) 

clarifies restrictions on the MPC members’ professional and public activities and introduces 

sanctions for non-compliance; 

(c) 

reorganises the portfolio of instruments available to NBP by categorising all existing and new 

NBP instruments as monetary policy instruments or financial stability instruments, as well as 

by  expanding  the  category  of  financial  stability  instruments  to  include:  (i) stability  loans, 

which  may  be  granted  to  banks  as  well  as  other  entities  subject  to  financial  market 

supervision; (ii) intraday loans, which may be granted to entities that are subject to financial 

market supervision and participate in payment systems operated by NBP; and (iii) sales and 

1  

2  

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). 

Consolidated text published in Dziennik Ustaw (Dz. U.) of 2013, item 908. 

 
 
 
 
                                                 
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purchases of debt securities outside open market operations, as part of transactions with the 

deposit guarantee scheme and the central securities depository.  

(d) 

amends the  provisions regarding the  issue  of currency,  in particular by: (i) limiting the NBP 

President’s task of determining the maximum volume of issuance of banknotes and coins so 

that it applies only to collector banknotes and coins; (ii) consolidating in the Law on NBP and 

expanding  the  rules  regarding  authenticity  and  fitness  checking,  and  the  criteria  for  the 

replacement  of  banknotes  and  coins;  and  (iii)  consolidating  in  the  Law  on  NBP  and 

expanding the rules regarding counterfeit banknotes and coins;  

(e)   enables NBP to cooperate with international organisations, international financial institutions 

and international banking institutions even if it is not a member thereof, and to participate in 

projects implemented in the context of such cooperation; 

(f)  

clarifies 

that  NBP  may  be  a  member  of  any 

international  organisation, 

including 

organisations whose area of activity goes beyond banking and finance; 

(g) 

clarifies  that  the  expenses  relating  to  Poland’s  membership  in  the  International  Monetary 

Fund (IMF) that are covered by NBP’s own funds include in particular expenses relating to: 

(i) quotas  assigned  to  Poland;  and  (ii)  Poland’s  participation  in  IMF  financial  initiatives 

addressed to its members; 

(h) 

streamlines the procedures for deputising for NBP’s President. 

2. 

General observations  

2.1  Since  2004,  in  its  Convergence  Reports,  the  ECB  has  assessed  the  compatibility  of  Polish 

legislation  with  the  requirements  of  primary  Union  law  relating  to  NBP’s  participation  in  the 
European  System  of  Central  Banks  (ESCB)  and,  prospectively,  in  the  Eurosystem3.  The  legal 

provisions  identified  in  the  ECB’s  Convergence  Reports  as  being  incompatible  with  Union 
requirements are found  both in  the  Polish  Constitution4 and in  ordinary legislation, in  particular  in 

the Law on NBP.  

2.2  The ECB welcomes the draft law to the extent that it addresses a number of these incompatibilities. 

However,  there  are  still  various  outstanding  issues  that  the  draft  law  does  not  remedy.  The  ECB 

therefore invites the Polish authorities to ensure compatibility with Union requirements at all levels 

of national legislation.  

3. 

Personal independence 

3.1  The  ECB’s  Convergence  Report  2014  identified  several  provisions  of  the  Law  on  NBP  and  other 

laws  that  are  incompatible  with  the  requirements  under  the  Treaty  on  the  Functioning  of  the 

European Union with respect to central bank personal independence. In particular, some of these 

provisions  in  the  Law  on  NBP  establish  grounds  for  the  dismissal  of  NBP’s  President  and  other 

3  

4  

See  in  particular  the  ECB’s  Convergence  Report  2014,  Section  6.6,  pp.  250  to  254,  and  paragraph  2  of  Opinion 
CON/2011/9. All ECB opinions are published on the ECB’s website at www.ecb.europa.eu. 

See Opinion CON/2011/9. 

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members of NBP’s decision-making bodies involved in the performance of ESCB-related tasks that 

go  beyond  the  exclusive  grounds  for  dismissal  specified  in  Article  14.2  of  the  Statute  of  the 

European System of Central Banks and of the European Central Bank (hereinafter the ‘Statute of 
the ESCB’)5.  

3.2 

In  this  respect,  the  draft  law  not  only  fails  to  remedy  the  above  incompatibilities  with  the  Union 

requirements but introduces an additional ground for dismissal of the MPC members, i.e. a breach 
of the restrictions imposed on their professional activities6. These restrictions include a prohibition 

on holding any other positions or engaging in commercial or public activities other than academic 

work, teaching or writing or engaging, without the MPC’s consent, in any activities of international 
organisations7. Such restrictions are welcomed since they represent safeguards against a conflict 

of interests, and such safeguards are an element of the personal independence of the members of 

NBP’s  decision-making  bodies.  However,  in  order  to  ensure  compliance  with  Article  14.2  of  the 

Statute of the ESCB, in conjunction with Article 130 TFEU and Article 7 of the Statute of the ESCB, 

the draft law should make clear that a breach of such restrictions does not constitute a ground for 

dismissal of MPC members in addition to the two grounds laid down in Article 14.2 of the Statute of 

the ESCB. This could be achieved, for example, if compliance with the abovementioned restrictions 

was subsumed under the conditions required for the performance of the duties of the members of 

NBP’s decision-making bodies. 

3.3  The sanction for non-compliance with the abovementioned restrictions is introduced with respect to 
the  MPC  members  only,  and  not  to  the  members  of  NBP’s  Management  Board8.  However,  the 

ECB has on many occasions noted that  personal independence would be jeopardised if the rules 

for the security of tenure and grounds for dismissal of governors of national central banks (NCBs) 
were not also to apply to other members of the NCBs’ decision-making bodies9, which in this case 

covers  the  NBP  Management  Board  and  MPC  members  alike.  In  that  respect,  the  ECB 

emphasises  that  the  grounds  for  dismissal  of  both  MPC  members  and  NBP  Management  Board 

members should be fully in line with Article 14.2 of the Statute of the ESCB. 

3.4  At  the  same  time,  the  ECB  reiterates  the  remarks made  in  the  ECB’s  Convergence  Report  2014 

and Opinion CON/2011/9, which relate to the grounds for dismissal of members of NBP’s decision-

making bodies. 

4. 

Monetary financing prohibition 

4.1  The ECB’s Convergence Report 2014 referred to the provisions of the Law on NBP that lay down 

NBP’s  powers  to  grant  refinancing  credit  to  banks.  In  particular,  reference  was  made  to 

Article 42(3)  of  the  Law  on  NBP,  which  allows  NBP  to  grant  refinancing  credit  for  the  purpose  of 

implementing bank rehabilitation proceedings that are initiated in the event of a bank suffering a net 

5 

6  
7  
8  

9  

See the ECB’s Convergence Report 2014, Section 6.6.2.2, p. 251, recommending amendments to Articles 9(3), 9(5), 
13(5) and the second sentence of Article 17(2b) of the Law on NBP. 

See Article 1(5)(b) of the draft law. 
See Article 1(6)(a) of the draft law. 
See Article 1(8) of the draft law and p. 5 of the explanatory memorandum. 

See the ECB’s Convergence Report 2014, Section 6.6.2.2, p.251, and related ECB opinions referred to therein. 

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loss, of being threatened with such a loss, or of insolvency10. The Convergence Report stated that 

safeguards aimed at ensuring timely repayment of such credit did not fully exclude an interpretation 

that would allow an extension of refinancing credit to a bank undergoing rehabilitation proceedings 

that  then  becomes  insolvent.  In  this  respect,  the  ECB  recommended  the  introduction  of  explicit 

safeguards to avoid incompatibility with the monetary financing prohibition under Article 123 of the 

Treaty  and  recommended  amending  the  Law  on  NBP  by  introducing  more  explicit  safeguards  in 

relation to all financial institutions receiving liquidity support. 

4.2  Therefore, the ECB welcomes the provisions proposed in Article 1(17)(b) of the draft law, repealing 

Article 42(3) of the Law on NBP and thus abolishing the possibility of granting refinancing credit to 

a  bank  for  the  purpose  of  implementing  a  rehabilitation  programme.  This  amendment  brings  the 

provisions related to refinancing credit into line with the monetary financing prohibition rules. 

4.3  Nevertheless,  the  ECB  would  welcome  two  further  clarifications  in  the  draft  law.  First,  it  is  noted 

that the draft law repeals Article 42(7) of the Law on NBP, which extends to refinancing credit the 

application  of  general  conditions  for  extending  credit  contained  in  the  Law  of  29  August  1997  on 
banking11,  including  in  particular  the  requirement  to  provide  adequate  collateral.  Therefore,  the 

requirement to provide adequate collateral is missing from the proposed wording of Articles 42(1) 

and 43(1) of the Law on NBP, i.e. the provisions related to refinancing credit and loans extended to 

the Bank Guarantee Fund. The ECB would recommend that the requirement that these loans may 

only  be  granted  against  adequate  collateral  be  reintroduced  in  these  provisions.  Secondly,  as 

regards the intraday loan facility introduced by the proposed Article 43a of the Law on NBP, which 

may be granted to entities subject to financial market supervision which participate in the payment 

systems  operated  by  NBP,  the  provision  could  specify  that  this  instrument  supports  the  smooth 

functioning  of  payment  systems  and  not  only  financial  stability.  The  ECB  understands  that  such 

intraday credit is not restricted to situations that threaten financial stability. 

5. 

Issuance of money 

5.1  The proposed Article 35b(2)(1)(a) of the Law on NBP excludes euro banknotes and coins from the 

scope of applicability of the rules on authenticity checking. With regard to the authenticity checking 

of  euro  banknotes  and  coins,  Article  35b(5)  then  refers  to  Article  6  of  Council  Regulation  (EC) 
No 1338/200112. However, Article 6 of Regulation (EC) No 1338/2001 is only applicable in Member 

States which have not adopted the euro as their single currency, due to the extension of the scope 
of  applicability  contained  in  Article  1  of  Council  Regulation  (EC)  No  1339/200113.  Moreover, 

Article 1 of Regulation (EC) 1339/2001 refers to a broader set  of  rules, so the reference made in 

the  proposed  Article  35b(5)  of  the  Law  on  NBP  appears  to  be  too  narrow  in  this  regard.  At  the 

10  

11  
12  

13  

See the ECB’s Convergence Report 2014, Section 6.6.4, pp. 252 and 253. 

Consolidated text published in Dz. U. of 2015, item 128. 
Council Regulation (EC) No 1338/2001 of 28 June 2001 laying down measures necessary for the protection of the 
euro against counterfeiting (OJ L 181, 4.7.2001, p. 6). 
Council  Regulation  (EC)  No  1339/2001  of  28  June  2001  extending  the  effects  of  Regulation  (EC)  No 1338/2001 
laying down measures necessary for the protection of the euro against counterfeiting to those Member States which 
have not adopted the euro as their single currency (OJ L 181, 4.7.2001, p. 11). 

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same time, Article 6 of Regulation (EC) No 1338/2001 encompasses references to other applicable 

rules, in particular concerning the method for carrying out authenticity checks. In this regard too, a 

reference to Article 6 of Council Regulation (EC) 1338/2001 could be too narrow. 

5.2  Therefore,  the  ECB  advises  amending  the  wording  of  the  proposed  Article  35b(5)  of  the  Law  on 

NBP to correctly reflect these references. 

6. 

Other incompatibilities with Union legislation  

6.1  The  ECB’s  Convergence  Report  2014  identified  several  provisions  in  the  Law  on  NBP  that  are 
incompatible  with  Treaty  requirements  regarding  central  bank  independence  and  confidentiality14. 

Although  the  draft  law  amends  some  of  those  provisions,  it  does  not  fully  remedy  all  of  the 

incompatibilities. This applies in particular to the following provisions. 

6.2  Firstly, 

the  ECB’s  Convergence  Report  2014  referred 

institutional 
independence  that  need  to  be  addressed  inter  alia  by  amending  Article  11  of  the  Law  on  NBP15. 

to  various 

issues  of 

Although  the  draft  law  introduces  some  amendments  to  this  Article,  it  does  not  remedy  its 

incompatibility with Article 130 of the Treaty and Article 7 of the Statute of the ESCB. Furthermore, 

the draft law amends Article 23 of the Law on NBP but it does not remove the obligation to forward 

draft  monetary  policy  guidelines  to  the  Council  of  Ministers  and  the  Minister  for  Finance.  These 

provisions  need  to  be  brought  into  line  with  the  relevant  requirements  of  the  Treaty  and  of  the 

Statute of the ESCB. 

6.3  With  respect  to  the  rules  on  the  confidentiality  of  information,  although  the  draft  law  introduces 

amendments  to  Article  23  of  the  Law  on  NBP,  it  does  not  address  the  issue  of  the  disclosure  of 

certain  data  that  is  made  possible  by  Article  23(7)  of  the  Law  on  NBP.  The  ECB’s  Convergence 

Report  2014  cites  this  as  an  issue  that  could  potentially  affect  data  protected  under  the  ESCB’s 

confidentiality  regime.  The  Convergence  Report  recommended  amending  the  provision  to  fully 
comply with Article 37 of the Statute of the ESCB16, and that recommendation is now reiterated. 

7. 

Legal integration of NBP into the Eurosystem 

7.1  The legal integration of NCBs into the Eurosystem requires that national legislation be amended to 

allow  for  the  performance  of  Eurosystem-related  tasks  and  compliance  with  the  ECB’s  decisions 

once  the  Member  State  concerned  has  adopted  the  euro.  The  ECB’s  Convergence  Report  2014 

pointed to the necessity of several such amendments. Although some of the relevant provisions are 

being  amended,  the  draft  law  has  not  taken  this  opportunity  to  remedy  these  incompatibilities.  In 

addition  to  the  provisions  referred  to  in  paragraphs  3,  4  and  6  of  this  Opinion,  this  refers  in 

particular to the following. 

7.2  Firstly, as regards NBP’s tasks17, although the draft law amends provisions relating to the MPC and 

14 
15  
16  

17  

See in particular the ECB’s Convergence Report 2014, Section 6.6, pp. 250 to 254. 
See the ECB’s Convergence Report 2014, Section 6.6.2.1, pp. 251 and 252. 
See the ECB’s Convergence Report 2014, Section 6.6.3, p. 252. 

See the ECB’s Convergence Report 2014, Section 6.6.5.2, pp. 253 and 254. 

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monetary  policy  instruments,  it  does  not  address  the  fact  that  the  provisions  providing  for  NBP’s 

powers  with  regard  to  monetary  policy  do  not  recognise  the  ECB’s  powers  in  this  field.  Similarly, 

the draft law amends Article 23 of the Law on NBP, which provides for NBP’s powers relating to the 

collection of statistics, but does not remedy the fact that the Law on NBP does not recognise the 

ECB’s  powers  in  this  field.  Also,  the  provisions  of  the  Law  on  NBP  which  provide  for  NBP’s 

exclusive powers to issue and withdraw banknotes and coins having the status of legal tender do 

not recognise the powers of the Council and the ECB in this field. 

7.3  Secondly, as regards financial provisions18, the draft law amends the rules on the appointment of 

independent  external  auditors,  but  does  not  recognise  the  powers  of  the  Council  and  the  ECB 
under Article 27.1 of the  Statute of the ESCB19. Also, the draft law does not address the need to 

ensure  that  the  powers  of  the  Supreme  Audit  Office  (NIK)  to  control  NBP’s  activities  are  clearly 

defined and are without prejudice to the activities of NBP’s independent external auditors. 

7.4  As regards exchange rate policy, although the draft law amends Article  17 of the Law on NBP,  it 

does not recognise the powers of the Council and the ECB in this field20. 

7.5  Further, although the draft law amends the provisions of the Law on NBP related to the issuing of 

banknotes  and  coins  having  the  status  of  legal  tender,  it  does  not  recognise  the  powers  of  the 

Council and the ECB in this field. 

7.6  Finally,  although  the  draft  law  amends  the  provisions  related  to  the  NBP’s  participation  in 

international  financial  and  banking  institutions,  it  does  not  recognise  the  ECB’s  powers  in  this 
field21. 

8. 

Appropriate time to amend the Law on NBP 

8.1  The ECB draws the Polish authorities’ attention to the fact that, in order to comply with Article 131 

of the Treaty requiring the compatibility of national legislation with the Treaty and the Statute of the 

ESCB,  the  relevant  Polish  legislation  had  to  be  adjusted  by  the  date  of  Polish  accession  to  the 

Union,  i.e.  1  May  2004.  Hence,  amendments  addressing  the  outstanding  issues  identified  in  the 

ECB’s  Convergence  Report  2014  concerning  central  bank  independence,  confidentiality  and  the 

monetary  financing  prohibition  need  to  be  adopted  and  enter  into  force  as  soon  as  possible, 

irrespective of when Poland adopts the euro.  

8.2   Although  the  amendments  that  are  necessary  to  ensure  the  full  integration  of  NBP  into  the 

Eurosystem should also be adopted as soon as possible, at the latest they must enter into force on 

the date when Poland adopts the euro.  

18  

19  

20  

21  

See the ECB’s Convergence Report 2014, Section 6.6.5.3, p. 254. 

In  this respect,  on  14  June  2012  the Governing  Council  approved  a  series  of  good  practices  for  the  selection  and 
mandate of external auditors in accordance with Article 27.1 of the Statute of the ESCB. These were established in 
order  to  provide  high  level  guidance  for  the  selection  and  mandate  of  external  auditors.  Although  not  binding,  it  is 
intended  that  each  Eurosystem  central  bank,  when  selecting  its  external  auditors  pursuant  to  Article  27.1  of  the 
Statute of the ESCB, and when determining their mandate thereafter, applies these good practices and/or explains 
any divergence.   
See the ECB’s Convergence Report 2014, Section 6.6.5.4, p. 254. 

See the ECB’s Convergence Report 2014, Section 6.6.5.5, p. 254. 

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9.  

Expenses relating to Poland’s membership of the IMF 

Monetary financing prohibition 

9.1  The  tasks  performed  by  an  NCB  must  comply  with  the  monetary  financing  prohibition  under 
Article 123  of  the  Treaty  and  Council  Regulation  (EC)  No  3603/9322.  Pursuant  to  Article  7  of  that 

Regulation, the financing by NCBs of obligations falling upon the public sector vis-à-vis the IMF is 

not  regarded  as  a  credit  facility  within  the  meaning  of  Article  123  of  the  Treaty.  Recital  14  of 

Regulation  3603/93  sets  out  the  rationale  for  the  exemption  and  confirms  that  it  is  appropriate  to 

authorise the financing by NCBs of obligations falling on the public sector vis-à-vis the IMF, as this 

financing  results  in  claims  which  have  all  the  characteristics  of  reserve  assets.  In  the  light  of  the 

draft  amendment  to  Article  5(1a)  of  the  Law  on  NBP,  it  must  be  understood  that  NBP  would  be 

responsible for the financing of IMF-related obligations only in respect of financing which results in 
claims of NBP which have the characteristics of reserve assets23, or in respect of financing which 

does not result in such claims but which  is financed  from funds that are due to  Poland from, and 

transferred to it by, the IMF and the spending of which reduces NBP’s revenue and, consequently, 
the portion of its profit to be remitted to the State budget24. Provided that this is the case, the ECB 

considers that the proposed provisions  would fall  within the scope of Article  7 of Regulation (EC) 

No 3603/93 and should therefore not be regarded as a form of monetary financing prohibited under 

the Treaty. 

Central bank independence 

9.2  NBP  is  responsible  for  paying  any  increases  in  Poland’s  IMF  quota.  It  also  exercises  all  rights 

connected  with  the  IMF  system  of  special  drawing  rights  (SDRs)  and  is  in  charge  of  fulfilling  all 

Polish financial obligations resulting from Poland’s membership of the IMF. In this context, and in 

line  with  the  principle  of  central  bank  independence  enshrined  in  Article 130  of  the  Treaty  and 

Article 7 of the Statute of the ESCB, NBP should take decisions regarding the management of the 
SDRs in a fully independent manner25. The ECB recommends that this is clarified in the draft law. 

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

Done at Frankfurt am Main, 10 March 2015. 

[signed] 

The President of the ECB 

Mario DRAGHI 

22  

23  
24  

25  

Council  Regulation  (EC)  No  3603/93  of  13  December  1993  specifying  definitions  for  the  application  of  the 
prohibitions referred to in Articles 104 and 104b(1) of the Treaty (OJ L 332, 31.12.1993, p. 1). 
See Article 5(1b) of the Law on NBP. 
Similarly, see Opinion CON/2010/22. 

Similarly, see Opinion CON/2012/65. 

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