Opinion of the European Central Bank of 20 September 2017 on interbank clearing and settlements (CON/2017/37)
Date: 2017-09-20
Institutions: European Central Bank
Subjects: Poland, bank, electronic banking, intra-EU payment, national law, payment system

ECB-PUBLIC 

direct exchange of payment orders between the banks, the draft regulation prescribes the minimum 

content of the agreement that should be concluded between the banks. 

1.4.  The draft regulation defines interbank settlement as a transfer of funds between banks’ accounts or 

between banks’ accounts and own accounts of banks, which maintain banks’ accounts, in order to 

meet a liability that has arisen as a result of interbank clearing. The draft regulation specifies that (i) 

settlement in zlotys may be conducted either by NBP in SORBNET2 or in its regional branches that 

maintain banks’ accounts in zlotys or by other banks that maintain other banks’ accounts in zlotys 

and that (ii) settlement in euro may be conducted by NBP in the TARGET2-NBP system or by other 

banks that maintain other banks’ accounts in euro. 

1.5.  The  draft  regulation  provides  for  general  requirements  related  to  participation  in  the  large-value 

payment  systems  operated  by  NBP,  i.e.  SORBNET2  (in  zlotys)  and  TARGET2-NBP  (in  euro), 

including  an  indication  of  eligible  participants  and  the  conditions  that  the  participants  must  fulfil. 

With  respect  to  the  SORBNET2  system,  the  draft  regulation  provides  that  its  participants  may 

include (i) NBP, (ii) banks other than NBP, provided they comply with the terms and conditions for 

opening  and  maintaining  banks’  accounts  laid  down  by  NBP,  (iii) an  entity  managing  an  ancillary 

system, provided it obtains consent to open and maintain an account with NBP and complies with 

the  terms  and  conditions  for  such  account,  (iv)  the  central  bank  of  another  country,  provided  it 

obtains the consent of NBP’s President to open and maintain an account with NBP, (v) the National 

Cooperative  Savings  and  Credit  Union,  provided  it  complies  with  the  terms  and  conditions  for 

opening  and  maintaining  banks’  accounts  laid  down  by  NBP  and  (vi)  the  Polish  Bank  Guarantee 

Fund,  provided  it  complies  with  the  terms  and  conditions  for  opening  and  maintaining  banks’ 

accounts  laid  down  by  NBP.  With  respect  to  the  TARGET2-NBP  system,  the  draft  regulation 

provides that its participants may include (i) NBP, (ii) banks other than NBP, provided they comply 

with the terms and conditions for opening and maintaining banks’ accounts laid down by NBP, (iii) 

an  entity  managing  an  ancillary  system,  provided  it  obtains  consent  to  open  and  maintain  an 

account  with  NBP  and  complies  with  the  terms  and  conditions  for  such  account,  and  (iv)  the 

National  Cooperative  Savings  and  Credit  Union,  provided  it  complies  with  certain  terms  and 

conditions for opening and maintaining banks’ accounts laid down by NBP. 

1.6.  The draft regulation defines the precise time at which a payment order enters into a system and the 

point  in  time  at  which  such  an  order  cannot  be  revoked  and  becomes  final.  With  respect  to  the 

SORBNET2  system,  a  payment  order  is  deemed  to  be  entered  into  the  system  upon  its 

registration.  It  is  final  and  irrevocable  from  the  time  of  its  execution,  i.e.  once  the  account  in  the 

SORBNET2 system as indicated in  the payment  order is debited. With respect to the  TARGET2-

NBP system, a payment order is deemed to be entered into the TARGET2-NBP system upon the 

debiting in the TARGET2 system of the participant’s account as indicated in the payment order and 

may be revoked until it is entered into the TARGET2-NBP system. A payment order that is included 

in the algorithm referred to in the TARGET2-NBP agreement may not be revoked during the period 

of the algorithm’s operation. 

1.7. 

In addition, the draft regulation regulates general issues relating to interbank settlement performed 

through  a  direct  exchange  of  payment  orders  between  banks,  as  well  as  those  relating  to 

calculating the net settlement positions resulting therefrom. 

2 

ECB-PUBLIC 

1.8.  As  described  in  the  explanatory  memorandum,  the  need  to  include  interbank  clearing  within  the 

scope  of  the  draft  regulation  is  driven  by  the  recent  occurrence  in  Poland  of  new,  unsupervised, 

interbank  clearing  mechanisms  that  do  not  qualify  as  payment  systems  and  are  not  subject  to 

supervision  by  the  President  of  NBP,  but  which  pose  certain  risks  to  the  safety  and  efficiency  of 

interbank clearing in Poland. According to the explanatory memorandum, Polish banks have for a 

short period in the past used, for interbank clearing purposes, both the existing payment systems 

that are subject to NBP’s oversight and intermediary services provided by companies that offer to 

make payments between banks using the companies’ own bank accounts held with various banks. 

These  mechanisms  involve  the  temporary  acquisition  of  funds  transferred  by  the  intermediary 

providing such services, which entails the potential risk that funds might be lost if the intermediary 

fails to transfer them to the beneficiary bank resulting in no interbank settlement taking place. Such 

risk  is  properly  mitigated  under  NBP’s  oversight  of  settlements  performed  by  typical  clearing 

houses.  For  the  time  being,  the  Polish  banks  have  stopped  using  non-regulated  third-party 

intermediaries  to  exchange  interbank  transfer  orders,  but  the  changes  proposed  in  the  draft 

regulation aim to prevent the reoccurrence of such practices in the future.  

2 

General observation 

The  ECB  notes  that  with  respect  to  interbank  settlements,  the  draft  regulation  is  a  recast  of  the 
existing  Regulation  No.  13/2013  of  the  President  of  Narodowy  Bank  Polski3.  The  draft  regulation 

amends  Regulation  No.  13/2013  and  expands  its  scope  to  include  interbank  clearing.  The  ECB 

was not consulted on Regulation No. 13/2013. 

3 

Specific observations 

Interbank clearing 

3.1  The  organisation  of  payments  is  one  of  the  duties  imposed  on  NBP4.  The  President  of  NBP  is 

responsible  for  the  oversight  of  payment  systems  and  payment  schemes.  In  particular,  the 

operation of a payment system or a payment scheme requires the consent of the President of NBP, 

who  is  also  entitled  to  revoke  such  consent  and  receive  information  on  the  functioning  of  the 
payment system or the payment scheme5.  

3.2  The  ECB  understands  that  the  draft  regulation  intends  to  introduce  a  closed  catalogue  of 

permissible  clearing  methods  in  Poland  in  order  to  eliminate  the  use  of  interbank  clearing 

mechanisms  that  use  intermediary  services  that  clear  payments  with  own  funds,  since  such 

mechanisms do not constitute a payment system subject to NBP’s oversight. The ECB welcomes 

the  fact  that  the  draft  regulation  aims  to  strengthen  NBP’s  oversight  role  in  the  area  of  interbank 

3  

4  

5  

Regulation  No  13/2013  of  the  President  of  Narodowy  Bank  Polski  of  24  May  2013  on  the  manner  of  performing 
interbank settlements. Available at http://www.nbp.pl/en/system platniczy/regulation-13-2013.pdf. 

Article  3(2)(1)  of 
https://www.nbp.pl/en/aktyprawne/the act on the nbp.pdf. 

the  Act  on  Narodowy  Bank  Polski  of  29  August  1997.  Available  at 

Article 16(1) of the Act of 24 August 2001 on settlement finality in payment and securities settlement systems and 
the rules of oversight of these systems. Available at https://www.nbp.pl/en/system_platniczy/angust.pdf. Article 14(2) 
of the Act of 19 September 2011 on payment services. No English translation available, the Polish text is available at 
http://isap.sejm.gov.pl/DetailsServlet?id=WDU20140000873.  

3 

 
 
                                                 
ECB-PUBLIC 

clearing  and  contributes  to  the  reduction  of  counterparty  risk  in  the  financial  sector.  The  draft 

regulation should enable NBP to use the powers available to it under Article 68(1) of the Banking 

Act  to  promote  the  smooth  operation  of  all  aspects  of  clearing  and  payment  systems  in  Poland. 
Furthermore, the draft regulation does not contravene the Eurosystem oversight policy framework6, 

as it limits the interbank clearing and settlement facilities to the payment systems that are subject 

to  oversight  and  to  the  correspondent  banking  arrangements  that  are  subject  to  banking 

supervision and monitoring by the Eurosystem’s oversight function. 

Interbank settlements 

3.3  With respect to the provisions of the draft regulation regarding interbank settlement, the ECB notes 

that these provisions repeat rules already laid down in the documentation for the SORBNET2 and 

TARGET2-NBP systems. For example, in accordance with Article 6(1) of the Act of 24 August 2001 

on  settlement  finality  in  payment  and  securities  settlement  systems  and  the  rules  of  oversight  of 

these systems, a settlement order that has entered the system may not be revoked by a participant 

or  by  a  third  party  after  the  point  in  time  defined  by  the  rules  of  that  system.  Related  rules 

concerning  settlement  finality  are  laid  down  in  the  documentation  governing  the  SORBNET2  and 

TARGET2-NBP  systems.  The  ECB  understands  that  the  purpose  of  the  draft  regulation  in  this 

respect is to provide general rules for settlement systems in an official NBP legal act adopted on 

the  basis of a delegation  contained in the Polish Banking Act of 29 August 1997. In  addition, the 

draft  regulation  is  a  general  NBP  legislative  instrument  that  introduces  a  basis  for  the  model 

participation  agreements  in  the  SORBNET2  and  TARGET2-NBP  systems.  With  respect  to  the 

TARGET2-NBP system, the ECB understands that the repetition in the draft regulation of the entry 

into the system and the irrevocability rules specified in Article 22 of the Harmonised Conditions for 
Participation in TARGET2 (Annex II to Guideline ECB/2012/27 of the European Central Bank7) is 

necessary to ensure legal certainty for irrevocable settlement in TARGET2-NBP under Polish law. 

The  ECB  agrees  in  principle  with  this  approach.  NBP  should,  however,  closely  monitor  the  draft 

regulation  and  the  documentation  of  the  large-value  payment  systems  operated  by  NBP,  and 

should, in particular, review any changes to Guideline ECB/2012/27 adopted by the ECB, in order 

to ensure their full alignment and avoid  any potential discrepancy between the  various applicable 

documents.  Furthermore,  in  accordance  with  the  second  sentence  of  Article  3(3)  of  Directive 
98/26/EC  of  the  European  Parliament  and  of  the  Council8,  if  there  are  conditions  laid  down  in 

national law governing the system as to the moment of entry, the rules of that system must be in 

accordance with such conditions. 

3.4  The ECB welcomes the fact that the draft regulation extends the eligibility criteria for participation in 

the  SORBNET2  and  TARGET2-NBP  systems,  which  are  generally  open  to  banks,  to  entities 

managing ancillary systems, to the Bank Guarantee Fund and to the National Cooperative Savings 

and  Credit  Union.  The  ECB  understands  that  the  amendments  are  necessary  to  guarantee  that 

6  
7  

8  

See Eurosystem Oversight Policy Framework, July 2016, available on the ECB’s website at www.ecb.europa.eu. 

Guideline ECB/2012/27 of the European Central Bank of 5 December 2012 on a Trans-European Automated Real-
time Gross settlement Express Transfer System (TARGET2) (OJ L 30, 30.1.2013, p.1). 
Directive 98/26/EC of the European Parliament and of the Council of 19 May 1998 on settlement finality in payment 
and securities settlement systems (OJ L 166, 11.6.1998, p. 45). 

4 

 
                                                 
ECB-PUBLIC 

those entities will meet the corresponding requirements for participation in the SORBNET2 and in 

the  TARGET2-NBP  systems.  The  amendments  are  particularly  important  in  the  context  of 

applications  to  open  an  account  and  the  technical  requirements  specified  in  the  participation 

agreement.  As  regards  the  National  Cooperative  Savings  and  Credit  Union,  it  is  important  to 

ensure that NBP assesses its financial condition in a manner similar to that of banks. 

3.5  The  ECB  notes  that  the  draft  regulation  eliminates  non-European  Economic  Area  (EEA)  entities 

from  the  scope  of  eligible  participants  in  the  SORBNET2  system  due  to  the  fact  that  the 

participation of such entities is not expected in the foreseeable future. The ECB understands that 

NBP is nonetheless open to considering the participation of a non-EEA entity on an individual basis 

subject to the satisfactory legal assessment of the laws applicable to such participant. 

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

Done at Frankfurt am Main, 20 September 2017. 

[signed] 

The President of the ECB 

Mario DRAGHI 

5