Opinion of the European Central Bank of 9 August 2019 on restrictions on transfers of mortgage claims (CON/2019/29)
Date: 2019-08-09
Institutions: European Central Bank
Subjects: Poland, banking, credit transfer, financial stability, mortgage, national law

EN 

ECB-PUBLIC 

OPINION OF THE EUROPEAN CENTRAL BANK 

of 9 August 2019 

on restrictions on transfers of mortgage claims 

(CON/2019/29) 

Introduction and legal basis 

On 10 July 2019 the European Central Bank (ECB) received a request from the Polish Sejm (Parliament) 

for an opinion on a draft law amending the Law on banking (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  Under the Law on banking2, in order to establish a mortgage for the benefit of a bank, the owner of 

an  immovable  property  (hereinafter  the  ‘property  owner’)  must  submit  a  written  statement  of 

consent, confirming the creation of a mortgage in favour of the bank. This statement is necessary 

in order to record a mortgage in the land and mortgage register. 

1.2  The draft law provides that the requirement to submit such a written statement of consent applies, 

mutatis mutandis, in the case of the transfer of a mortgage in connection with the disposal of bank 

claims.  

2. 

General observations  

2.1  The  ECB  understands  that  the  amendment  introduced  by  the  draft  law  should  be  interpreted  as 

requiring the written consent of a property owner to transfer any bank claim secured by a mortgage 

established for the benefit of a bank, without distinguishing between the purpose and the means of 

the  transfer.  This  would  include,  inter  alia,  transfers  for  the  purpose  of  creating  asset-backed 

securities  or  security  over  pools  of  credit  claims  or  transfers  to  specialised  institutions  for  the 

purpose of issuing covered bonds. 

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). 
Ustawa z dnia 29 sierpnia 1997 r. Prawo bankowe (Dz. U. z 2018 r., poz. 2187, z późn. zm.). 

 
 
 
 
 
                                                 
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2.2  The effect of the draft law would be to render the type of asset transfers required to utilise these 

financial  instruments  and  techniques  significantly  more  difficult  for  Polish  credit  institutions. 

However,  all  of  these  instruments  and  techniques  are  important  for  the  funding  and,  thus,  the 

functioning of the Polish banking sector. 

2.3  The  ECB  also  understands  that  the  provisions  of  the  draft  law  are  limited  to  the  banking  sector. 

This implies that only transfers of mortgage claims established for the benefit of a credit institution 

would require the written consent of the property owner. This places Polish credit institutions in a 

disadvantageous position compared to other market participants, who would be able to acquire or 

dispose of mortgage claims without the need to obtain the consent of the property owner for such a 

transaction. 

2.4  The ECB also understands that the draft law applies not only to the transfer of ‘new’ mortgages, i.e. 

those created after the enactment of the draft law, but also to transfers of ‘existing’ mortgages, i.e. 

those created prior to the enactment of the draft law. Hence, the draft law may raise issues of legal 

certainty in respect of the validity of such transfers. 

3. 

Specific observations 

3.1 

Impact on securitisation and covered bond markets 

3.1.1  The  ECB  has  a  strong  interest  in  the  sustainable  revival  of  the  European  securitisation  market. 

Securitisation is a form of asset-based financing with the capacity both to channel flows of credit to 
the  real  economy  and  to  transfer  risk3.  A  healthy  European  securitisation  market  is  important  to 

ensure well-functioning capital markets in the Union. Particularly where credit institutions’ capacity 

to lend to the real economy is constrained, securitisation can act as a fresh source of funding and 
free up capital for lending4.  

3.1.2  At Union level, the ECB supports the proposal for a directive of the European Parliament and the 
Council on the issue of covered bonds and covered bond public supervision5, aimed at facilitating 

the creation of a developed, harmonised, high-quality and transparent covered bond market in the 

Union,  which  is  important  for  promoting  further  integration  of  Union  financial  markets  and 
deepening the Capital Markets Union (CMU)6. At national level, in the case of Poland, the ECB has 

welcomed  the  legal  framework  introduced  in  the  past  to  promote  the  development  of  the  Polish 
covered bond market7. 

3.1.3  In  this  context,  the  draft  law  must  carefully  balance  the  benefits  of  well-functioning  securitisation 

and covered bond markets against the impetus to protect debtors. In this respect, the ECB notes 

3  

4  
5  

6  
7  

See  paragraph  1.1  of  Opinion  CON/2016/11.  All  ECB  opinions  are  published  on  the  ECB’s  website  at 
www.ecb.europa.eu. 
See paragraph 3.1.1 of Opinion CON/2018/16 and paragraph 2.3.1 of Opinion CON/2018/31. 
Proposal for a directive of the European Parliament and of the Council on the issue of covered bonds and covered 
bond public supervision and amending Directive 2009/65/EC and Directive 2014/59/EU (COM(2018) 94 final).  
See the first paragraph under ‘General observations’ in Opinion CON/2018/37. 
See paragraph 2.1 of Opinion CON/2015/11. 

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that the draft law is being introduced without the benefit of a thorough impact assessment. It is only 

by making such a prior assessment that it may be possible both to determine whether the draft law 

could  achieve  its  aim,  and  to  mitigate  any  negative  implications.  In  the  absence  of  an  impact 

assessment, however, it is difficult to ascertain whether the objectives set by the draft law will be 
achieved8.  

3.1.4  The ECB has concerns that the draft law would, by making it more difficult for credit institutions to 

resort  to  securitisations  or  issue  covered  bonds,  have  significant  adverse  effects  on  Polish credit 

institutions’  funding  situation  and  their  capacity  to  properly  manage  their  balance  sheets.  In 

particular,  the  draft  law  would  impact  the  true  sale  securitisation  structures  of  Polish  credit 

institutions. 

3.2  Compliance with Polish constitutional and other legal principles 

It  is  for  the  Polish  authorities  to  assess  whether  the  draft  law,  including  its  potentially  retroactive 

character, complies with Polish constitutional and other legal principles, in particular property rights. 

For its part, the ECB notes that introducing measures with retroactive effect would undermine legal 
certainty and not be in line with the principle of legitimate expectations9.  

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

Done at Frankfurt am Main, 9 August 2019. 

[signed] 

The President of the ECB 

Mario DRAGHI 

8  

9  

See paragraph 2.4 of Opinion CON/2019/14, paragraph 2.4.4 of Opinion CON/2018/31, paragraph 2.2.2 of Opinion 
CON/2018/13, paragraph 2.3 of Opinion CON/2012/40, paragraph 2.3 of Opinion CON/2012/70, and paragraph 2.2 
of Opinion CON/2010/34. 
See paragraph 3.8 of Opinion CON/2019/14, paragraph 4.3 of Opinion CON/2017/9, and paragraph 3.2 of Opinion 
CON/2016/50. 

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