Opinion of the European Central Bank of 28 July 2016 on the oversight of payment schemes (CON/2016/38)
Date: 2016-07-28
Institutions: European Central Bank
Subjects: Poland, banking supervision, central bank, electronic money, financial stability, national law, payment system

EN 

ECB-PUBLIC 

OPINION OF THE EUROPEAN CENTRAL BANK 

of 28 July 2016  

on the oversight of payment schemes 

(CON/2016/38) 

Introduction and legal basis  

On  24  May  2016  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  Payment  Services 1  and  certain  other  laws 

(hereinafter  the  ‘draft  law’).  The  ECB  understands  that  since  the  draft  law  was  sent  to  the  ECB  for 

consultation a more recent version thereof has become available on the Polish Parliament’s website. 

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/EC2,  as  the  draft  law  relates  to  Narodowy  Bank  Polski  (NBP)  and  payment  and  settlement 

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 main purpose  of the draft law  is to adapt  the national legal framework governing card-based 

payment  transactions  to  Regulation  (EU)  2015/751  of  the  European  Parliament  and  of  the 
Council3,  which  requires  the  Member  States  to  designate  competent  authorities  that  are 

empowered to ensure enforcement of the Regulation and to lay down rules on penalties applicable 

to  infringements  thereof.  Accordingly,  the  draft  law,  by  way  of  an  amendment  to  the  Law  on 

Payment Services, designates the President of NBP (hereinafter the ‘President’) as the competent 

authority for the enforcement of Regulation (EU) 2015/751 in respect of payment card schemes.  

1.2 

In  addition,  the  draft  law  aims  at  strengthening  NBP’s  oversight  role  in  the  area  of  payment 

schemes  by  extending  its  oversight  powers  not  only  to  card-based  payment  schemes  but  to  all 

payment  schemes  active  in  Poland.  The  draft  law  also  extends  the  scope  of  the  prudential 

supervision  function  of  Komisja  Nadzoru  Finansowego  (KNF,  The  Polish  Financial  Supervisory 

Authority) in accordance with the Regulation. 

1.3  The draft law introduces a new chapter in the Law on Payment Services which includes provisions 

prescribing  the  type  of  action  that  may  be  undertaken  by  the  President  in  carrying  out  the  new 

1  
2  

3  

Published in Dziennik Ustaw (Dz. U.) of 2014, item 872. 

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). 
Regulation (EU) 2015/751 of the European Parliament and of the Council of 29 April 2015 on interchange fees for 
card-based payment transactions (OJ L 123, 19.5.2015, p.1). 

 
 
 
 
                                                 
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tasks as the competent authority for the oversight of payment schemes. In particular, the President 

will  be  responsible  for:  (i)  issuing  an  operating  licence  and  approving  any  changes  to  the  rules 

governing the functioning of payment schemes; (ii) assessing the functioning of payment schemes; 

(iii) collecting and requesting information and documents necessary to perform such assessment; 

(iv)  issuing  recommendations;  and  (v)  suspension  or  revocation  of  the  licence.  The  new  chapter 

includes the rules on payment schemes and the licensing process relating to them. The draft law 

also provides that the Minister responsible for  financial institutions, after consulting the President, 

must specify by regulation the criteria for the assessment of a payment scheme and the information 

and documents required for an application for a licence. 

1.4  Furthermore, the draft law introduces provisions that complement the rules on cooperation between 

NBP  and  KNF  in  the  field  of  supervision  of  national  payment  institutions  providing  acquiring 

services. In particular, KNF will be obliged to inform the President of any changes that may have an 

impact  on  the  accuracy  of  the  information  and  documents  to  be  included  in  a  licence  application 

submitted by such a payment institution, to the extent that they may have an impact on the manner 

in  which  an  acquiring  service  is  provided.  In  addition,  if  the  President  becomes  aware  that  the 

activities of a payment institution could threaten the stability of the payment system they will have 

to inform KNF thereof. 

1.5  The  draft  law  specifies  the  scope  of  the  opinion  that  the  President  has  to  provide  before  KNF 

issues a licence to a national payment institution. The opinion must include an assessment of the 

application as it relates to the legality, safety and efficiency of the payment service. The draft law 

also prescribes that the opinion must be provided within one month of delivery of the application by 

KNF.  

1.6  The draft law provides that a licence for the operation of a payment scheme or the consent of the 

President to a change in the rules of a payment scheme will not be required (i) in the case of three-

party  payment  schemes  (i.e.  schemes  where  the  governance  authority  is  an  issuer  of  a  payment 

instrument  and  the  only  provider  of  acquiring  services)  and  (ii)  if  the  rules  of  a  payment  scheme 

operating on Polish territory have been assessed by the appropriate oversight authority of another 

Member  State  or  of  the  Union.  In  the  latter  case,  the  draft  law  requires  the  payment  scheme’s 

governance authority to provide specified information to the President before operating the scheme 

on  Polish  territory.  However,  if  the  President  finds  that  the  rules  of  the  payment  scheme  do  not 

ensure  the  sufficient  safety  or  efficiency  of  the  payment  scheme  or  the  infrastructure,  payment 

systems  and/or  payment  schemes  with  which  the  payment  scheme  is  affiliated,  the  payment 

organisation may be required by the President to  apply for the  above-mentioned licence/consent. 

The  draft  law  also  provides  that  in  both  cases  where  the  payment  scheme  is  a  payment  card 

scheme  (as  defined  in  Regulation  (EU)  2015/751)  then  the  payment  card  scheme’s  governance 

authority  is  required  to  provide  the  President  with  information  confirming  that  the  payment  card 

scheme  is  compliant  with  the  requirements  laid  down  in  Regulation  (EU)  2015/751,  at  least  two 

months before the planned commencement date for the operation of the payment card scheme on 

Polish  territory.  A  payment  card  scheme  may  start  operating  on  Polish  territory  unless  the 

President  finds  that  the  payment  card  scheme  does  not  comply  with  the  requirements  set  out  in 

Regulation  (EU)  2015/751,  within  two  months  of  the  abovementioned  information  being  sent.  In 

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respect of payment schemes already operating in Poland on the day of the entry  into force of the 

draft  law,  there  is  a  grace  period  of  six  months  to  submit  the  application  for  a  licence  to  the 

President  for  the  operation  of  the  payment  scheme  or,  in  the  case  of  a  scheme  previously 

assessed by the appropriate oversight authority of another Member State or of the Union, to submit 

the documentation confirming the results of the previous assessment. Such a scheme is permitted 

to  continue  its  operation  until  the  application  is  assessed  or  the  documentation  is  reviewed,  as 

applicable. 

1.7  The  draft  law  further  provides  that  the  President  may,  in  particular,  issue  a  decision  on  a 

temporary,  partial  or  total  suspension  of  a  payment  scheme,  including  a  three-party  payment 

scheme and a card payment scheme operating on Polish territory which has been assessed by the 

appropriate oversight authority of another Member State or of the Union, or withdraw the consent 

for  the  functioning  of  such  payment  schemes.  The  President  must  inform  the  relevant  oversight 

authority about such a decision.  

1.8  Finally, the draft law also amends certain other laws which govern the oversight of other segments 

of the financial market infrastructure, such as payment systems, securities settlement systems and 

providers  of  acquiring  services.  The  changes  mainly  reflect  recent  Union  and  international 

oversight standards and provide the President with stronger oversight tools (e.g. the introduction of 

additional requirements regarding provision of information for the entities operating financial market 

infrastructures). 

2. 

Scope of the opinion 

This  opinion  focuses  on  the  oversight  of  payment  schemes  by  NBP  (Section  3)  and  the  new  oversight 

tasks conferred on NBP in relation to the prohibition of monetary financing under Article 123 of the Treaty 

(Section 4). 

3. 

Oversight of payment schemes 

3.1  The  ECB  understands  and  welcomes  that  the  draft  law  aims  to  strengthen  and  provide  a  sound 

regulatory basis for NBP’s  oversight role in the  area  of payment schemes, to ensure a safer and 

more efficient functioning of these schemes. 

3.2 

It is noted that the definition of ‘payment scheme’4 in the draft law appears to include not only card-

based payment schemes, but covers a wider set of payment schemes. The ECB understands that 

the  main  aim  of  the  legislator  is  to  focus  on  the  issuing  and  acquiring  aspect  of  payment 

instruments, such as cards and mobile payments. The ECB also understands that it is not intended 

for the definition of ‘payment scheme’ to be interpreted as also covering the Single Euro Payments 

4    

‘Payment  scheme’  is  defined  as  a  set  of  rules  for  the  execution  of  payment  transactions, the  rules  for issuing  and 
acquiring  of  payment  instruments  by  payment  service  providers  and  the  rules  for  the  processing  of  payment 
transactions carried out using payment instruments, in particular a payment card scheme.  

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Area (SEPA) schemes for direct debits (SDD) and credit transfers (SCT), as well as national (non-
SEPA) credit transfer and direct debit schemes5.  

3.3  The ECB notes that the draft law only exempts three-party payment schemes from the requirement 

to obtain a licence from or the consent of the President, but that the other powers of the President 

still  apply,  including  the  power  to  issue  recommendations  on  such  a  payment  scheme  and  to 

suspend it from operation in Poland. However, in the case of payment service providers from other 

Member States, such powers may conflict with the actions of the national competent authorities of 

the  home  Member  State  responsible  for  the  supervision  of  providers  of  issuing  and  acquiring 

services within a payment scheme. They may also conflict with the right of establishment and the 

freedom  to  provide  services  which  payment  institutions,  e-money  institutions  or  credit  institutions 

should enjoy when providing issuing and acquiring services in a host Member State. 

3.4  The Eurosystem oversight policy framework6 provides that for the purpose of overseeing individual 

systems, it will assign a leading role to the central bank that is best placed to fulfil this function. For 

systems with a clear national anchor in Poland, NBP will perform this role and the draft law would 

provide  a  sound  legal  basis  to  support  NBP’s  role  as  lead  overseer.  However,  where  there  is  no 

national  anchor,  the  ECB  Governing  Council  may  assign  the  primary  oversight  responsibilities  to 

the ECB, with participation of other interested national central banks (NCBs) in the Eurosystem as 

part of a cooperative oversight arrangement. This is the case for the SCT and SDD schemes, as 

well  as  the  Visa  and  American  Express  card  payment  schemes.  There  are  also  cooperative 

oversight  arrangements  in  place  in  relation  to  the  MasterCard  card  payment  scheme,  where  the 

Nationale Bank van Belgiё/Banque Nationale de Belgique has been assigned as the lead oversight 

authority (with the ECB and some volunteering NCBs also involved in the arrangement). The ECB 

welcomes that the draft law aims to also exempt a payment scheme operating on Polish territory, 

which has been assessed by the appropriate oversight authority of another Member State or of the 

Union, from the requirement to obtain a licence from the President for the operation of a payment 

scheme or to obtain the  President’s consent to a change  in the rules of a payment scheme.  The 

ECB  understands  that  the  President’s  power  to  nevertheless  require  such  a  payment  scheme  to 

obtain  the  relevant  licence/consent  would,  in  practice,  only  be  exercised  in  cases  where  the  final 

assessment  by  the  appropriate  oversight  authority  of  another  Member  State  or  of  the  Union  was 

negative and that, in any event, NBP would cooperate with the relevant oversight authority until the 

conclusion  of  an  oversight  assessment  and  not  take  any  unilateral  action  based  on  preliminary 

assessment findings. However, the draft law would benefit from making it clear that the President’s 

power will not conflict with any action taken by the Eurosystem. Similarly, the provisions of the draft 

law  providing  for  the  possibility  that  the  President  may  suspend  a  payment  scheme  or  withdraw 

consent for its functioning could be clarified to ensure that the exercise of the President’s oversight 

powers, in relation to payment schemes that are already subject to Eurosystem oversight, will not 

conflict  with  action  taken  by  the  NCBs  as  part  of  a  cooperative  oversight  arrangement.  The  ECB 

5    

6    

The  ECB’s  interpretation  is  based  on  the  understanding  that  the  different  elements  of  the  definition  of  ‘payment 
scheme’ apply cumulatively. 
Eurosystem  oversight  policy 
http://www.ecb.europa.eu. 

framework,  September  2015,  available  on 

the  ECB’s  website  at: 

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therefore suggests that payment schemes in respect of which a leading oversight role has already 

been  assigned  to  the  ECB  and/or  one  or  more  NCBs,  be  excluded  from  the  scope  of  the 

President’s  oversight  powers,  so  that  the  draft  law  essentially  relies  on  cooperative  oversight 

arrangements  with  the  ECB  and  the  NCBs.  In  this  respect,  it  is  noted  that  NBP  is  entitled  to 

participate in the Eurosystem assessment groups on the basis of the contractual arrangements in 

place with the Eurosystem oversight authorities for international card payment schemes. If such an 

approach is followed, this would mean increased pan-European harmonisation and efficiency in the 

provision of card payments.  

3.5  As a general matter, the Polish authorities may also wish to further consider whether the imposition 

of  the  abovementioned  specific  requirements  on  payment  schemes  established  and  legally 

operating in other Member States is compliant with the Treaty provisions on the free movement of 

services and other applicable provisions of EU law.  

3.6 

In relation to the SCT and SDD schemes, whilst the ECB understands that the draft law intends to 

exclude credit transfer and direct debit schemes from the scope of NBP’s oversight, the drafting of 
the relevant exclusion7 could be more accurately formulated. In particular, the relevant provision of 

the  draft  law  provides  that  the  chapter  dealing  with  NBP  oversight  does  not  apply  to  payment 

schemes  in  so  far  as  they  are  subject  to  the  rules  of  assessment  under  Regulation  (EU)  No 
260/2012  of  the  European  Parliament  and  of  the  Council  (hereinafter  the  ‘SEPA  Regulation’) 8. 

However,  the  rules  applicable  to  oversight  assessment  at  Eurosystem  level  are  set  out  in  the 
oversight  policy  framework  and  related  guides9,  not  in  the  SEPA  Regulation.  The  latter  requires 

Member  States  to  establish  competent  authorities  responsible  for  ensuring  compliance  with  the 

SEPA  Regulation,  but  the  key  role  of  these  authorities  is  to  monitor  compliance  by  the  payment 

service providers rather than carry out assessments of payment schemes. In these circumstances, 

the  ECB  invites  the  consulting  authority  to  consider  reformulating  the  relevant  exclusion  by 

providing that the chapter dealing with NBP oversight does not apply to payment schemes for the 

execution of payment transactions regulated by the SEPA Regulation.  

3.7  Regarding the exercise of the President’s oversight powers over domestic payment schemes, the 

ECB notes that the regulations to be issued by the Minister responsible for financial institutions will 

specify the criteria for the assessment of a payment scheme. In the interests of harmonisation, the 

ECB  suggests  that  these  criteria  should  be  aligned  with  the  criteria  established  under  the 

Eurosystem oversight policy framework.  

 4. 

Conferral of new tasks on NBP 

4.1  General observations 

Proposed new Art. 132zu of the Law on Payment Services. 

7    
8      Regulation  (EU)  No  260/2012  of  the  European  Parliament  and  of  the  Council  of  14  March  2012  establishing 
technical and business requirements for credit transfers and direct debits in euro and amending Regulation (EC) No 
924/2009 (OJ L 94, 30.3.2012, p. 22). 
See  the  relevant  guides  for  the  assessment  of  direct  debit  schemes  and  credit  transfer  schemes  against  the 
oversight standards, November 2014, available on the ECB’s website at www.ecb.europa.eu. 

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4.1.1  The draft law assigns the new oversight task to the President, since the President is the only NBP 

organ that may, under the Law on Narodowy Bank Polski, issue administrative decisions. The ECB 

understands  that  this  new  oversight  task  is,  in  effect,  to  be  conferred  on  NBP  and  that  the 

President will act on behalf of NBP. 

4.1.2  The  ECB  would  like  to  recall  that  when  new  tasks  are  conferred  on  a  member  of  the  European 

System of Central Banks (ESCB), it is necessary  to  assess these tasks against the prohibition of 

monetary  financing  under  Article  123  of  the  Treaty.  For  this  purpose,  the  ECB  has  developed 

guidance,  in  the  form  of  general  and  specific  considerations  as  set  out  in  paragraph  4.2,  on  the 

basis of which the ECB may decide  whether the new  task conferred on  an  ESCB  national central 

bank (NCB) is to be considered a central banking task or a governmental task for the purposes of 
assessing  the  conferral  of  such  a  task  against  the  prohibition  of  monetary  financing 10.  This 

guidance  applies  to  genuinely  new  tasks  that  either  did  not  exist  in  the  past  or  did  not  form  an 

integral  part  of  the  central  banking  tasks  previously  assigned  to  the  NCB  in  question.  The  tasks 

currently discharged by an NCB as central banking tasks are not reviewed and re-categorised, but 

may  be  reassessed  if  they  are  subject  to  substantive  legislative  amendments.  In  this  regard,  the 

ECB  notes  that  the  President  already  exercises  oversight  in  respect  of  certain  segments  of  the 

financial market infrastructure. The draft law, however, extends NBP’s oversight powers to include 

payment  schemes  and  the  new  tasks  should  therefore  be  assessed  for  compliance  against  the 

monetary financing prohibition. The concrete assessment of whether NBP’s tasks as the authority 

responsible  for  oversight  of  payment  schemes  is  to  be  considered  a  central  banking  task  or  a 

governmental task is undertaken in paragraph 4.3. 

4.2  Guidance on conferral of new tasks 

4.2.1  First,  the  principle  of  financial  independence  requires  that  the  Member  States  may  not  put  their 

NCBs  in  a  position  where  they  have  insufficient  financial  resources  to  carry  out  their  ESCB-  or 

Eurosystem-related tasks, as applicable. 

Second, central banking tasks comprise in particular those tasks that are related to the tasks listed 

in Article 127(2), (5) and (6) of the Treaty. 

Third,  new  tasks  conferred  on  an  NCB  that  are  atypical  of  NCBs’  tasks,  or  which  are  clearly 

discharged on behalf of and in the exclusive interest of the government or of other public entities, 

should be considered as governmental tasks.  

4.2.2  An  important criterion for qualifying a  new task as a governmental task is therefore the impact of 

the  task  on  the  institutional,  financial  and  personal  independence  of  the  NCB.  In  particular,  the 

following should be taken into account. 

First,  it  should  be  assessed  whether  the  performance  of  the  new  task  creates  inadequately 

addressed  conflicts  of  interests  with  existing  central  banking  tasks,  and  does  not  necessarily 

complement  those  existing  central  banking  tasks.  If  a  conflict  of  interest  arises  between  existing 

and  new  tasks,  there  should  be  sufficient  mitigation  in  place  to  adequately  address  that  conflict. 

10  

See  paragraph  2.3  of  Opinion  CON/2015/22.  All  ECB  opinions  are  published  on  the  ECB’s  website  at 
www.ecb.europa.eu. 

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Complementarity between the new task and existing central banking tasks should not, however, be 

interpreted  extensively,  so  as  to  lead  to  the  creation  of  an  indefinite  chain  of  ancillary  tasks. 

Complementarity should also be examined from the point of view of the financing of those tasks. 

Second,  it  should  be  assessed  whether  without  new  financial  resources  the  performance  of  the 

new  task  is  disproportionate  to  the  financial  or  organisational  capacity  of  the  NCB  and  may 

negatively impact on its capacity to properly perform existing central banking tasks. 

Third, it should be assessed whether the performance of the new task fits into the institutional set-

up of the NCB in the light of central bank independence and accountability considerations. 

Fourth,  it  should  be  assessed  whether  the  performance  of  the  new  task  would  entail  substantial 

financial risks. 

Fifth, it should be assessed whether the performance of the new task exposes the members of the 

NCB’s decision-making bodies to political risks which are disproportionate and may also impact on 

their  personal  independence  and,  in  particular,  the  guarantee  of  the  term  of  office  under  Article 

14.2 of the Statute of the European System of Central Banks and of the European Central Bank. 

Any  final  assessment  on  the  qualification  of  a  task  given  to  an  NCB  as  either  falling  within  the 

scope of a central banking task or a governmental task will be guided by the objective of ensuring 

the  consistent  application  of  the  prohibition  of  monetary  financing  within  the  Eurosystem  and  the 

ESCB to the extent that it applies to its members. 

4.3  Specific observations 

4.3.1  Principle of financial independence 

The principle of financial independence requires that the Member States may not put their NCBs in 

a position where they have insufficient financial resources to carry out not only their ESCB-related 
tasks, but also their national tasks, both from an operational and financial perspective 11.  

4.3.2  Links to tasks listed in Article 127(2), (5) and (6) of the Treaty 

The oversight of payment schemes is a task related  to the tasks conferred in the fourth indent of 

Article  127(2)  of  the  Treaty,  as  this  task  is  ancillary  to  the  promotion  of  the  smooth  operation  of 

payment systems. 

4.3.3  Atypical tasks  

Central banks have always had an interest in the safety and efficiency of payment and settlement 

systems. In particular, as noted in Section 3 above, the ECB together with the Eurosystem NCBs 

carries  out  oversight  activities  in  relation  to  payment  schemes.  In  addition,  the  President  already 

exercises  oversight  in  respect  of  certain  financial  market  infrastructures.  The  extension  of  NBP’s 

oversight powers to payment schemes can therefore be regarded as not atypical of a central bank.  

4.3.4  Extent to which conflicts of interest with existing tasks are addressed 

Given that the President already exercises oversight in respect of certain segments of the financial 

market  infrastructure,  the  extension  of  NBP’s  oversight  powers  to  payment  schemes  appears  to 

11  

See the ECB’s 2016 Convergence Report, p.25. 

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complement  NBP’s  existing  powers  and  there  should  be  no  conflict  of  interest  between  the  new 

and existing tasks of NBP. 

4.3.5  Extent  to  which  the  performance  of  the  new  task  is  proportional  with  NBP’s  financial  and 

operational capacity and its ability to perform ESCB-related tasks 

The ECB understands that the extension of the scope of the oversight to payment schemes should 

not  entail  a  substantial  additional  operational  or  financial  burden  for  NBP.  The  ECB  also 

understands  that  NBP  already  undertook  necessary  measures  to  ensure  resources  for  the 

performance of the extended oversight duties.  

4.3.6  Extent to which the performance of the new task fits into the institutional set-up of NBP in the light 

of central bank independence and accountability considerations 

Given  the  complementarity  of  the  new  tasks  with  NBP’s  existing  oversight  powers  in  respect  of 

other  segments  of  the  financial  market  infrastructure,  the  new  tasks  appear  to  fit  into  the  current 

institutional set-up of NBP. 

4.3.7  Extent to which the performance of the new task entails financial risks 

The  draft  law  does  not  contain  any  specific  provisions  on  liability.  The  ECB  understands  that  the 

performance of the new task does not  involve the risk of any additional liability  other than  that to 

which  NBP  is  already  subject  to  in  performance  of  its  other  duties,  according  to  which  damage 

resulting from NBP’s unlawful act would need to be established in order to hold NBP liable.  

4.3.8  Conclusion 

Given the close link to and complementarity with one of the principal functions of central banks of 

promoting  the  smooth  operation  of  payment  systems,  the  new  tasks  conferred  on  NBP  are 

regarded  as  central  banking  tasks  for  the  purposes  of  assessing  their  compliance  with  the 

monetary financing prohibition.  

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

Done at Frankfurt am Main, 28 July 2016. 

[signed] 

The President of the ECB 

Mario DRAGHI 

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