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CRD4 implementation on the way in Poland

The Polish Ministry of Finance recently published a draft law amending the Banking Law, as well as other legislation (the Draft Law) to implement Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013, (the CRD4 Directive) into the Polish legal system.

As part of the CRD4 Directive's implementation in the Draft Law, the Ministry of Finance proposed to grant additional supervisory measures to the Polish Financial Supervision Authority (the Polish FSA). The proposal assumes that the Polish FSA will issue a decision to dismiss a member of the management board or supervisory board of a Polish bank if such member does not meet the requirements to hold that office, including where they do not guarantee prudent and stable management of the bank and lack sufficient education or professional experience or proven command of the Polish language. The latter requirement has raised concerns, in particular among non-Polish supervisory board members who are often appointed by foreign institutional investors to oversee the bank's management (under the current regulations, only two management board members are required to speak Polish). Before taking the decision to dismiss the board member, the Polish FSA would be authorised to suspend them. The dismissal of a management or supervisory board member would be effective on the delivery of the Polish FSA's decision, and would trigger the immediate expiry of the board member's mandate. The Polish FSA's decision in this regard would be subject to the control of the administrative courts. However, bearing in mind the often protracted administrative proceedings in Poland, the practical implications of the dismissal would likely be irreversible.

There might be doubts as to whether the proposal under the Draft Law to equip the Polish FSA with additional supervisory powers is in line with the proportionality principle set out in Article 65(1) of the CRD4 Directive.

The final shape of the Draft Law has yet to be determined. In the most optimistic scenario, the implementation of the CRD4 Directive will take place in the second half of 2014.

Legal and Regulatory Risk Note