Introductionmodification date 18 January 2019
The term ‘bank licence’ is not used in the Polish banking law. In the light of the Polish law, it is therefore a kind of a theoretical structure, which may be generally defined as the right to conduct banking activities in the Republic of Poland. According to the definition in Article 2 of the Banking Law, a bank is a legal person established in accordance with statutory law, operating on the basis of authorisations to perform banking operations which expose any repayable funds to risk. The authorisations referred to in the above-mentioned provision form a bank licence and determine its extent. The principle of two-element (two-stage) bank licence was adopted in the Banking Law. Namely, to be able to commence and conduct the banking activity in the territory of the Republic of Poland, it is necessary to obtain, consecutively, two separate authorisations issued by the Polish Financial Supervision Authority (PL. Komisja Nadzoru Finansowego—KNF): authorisation to establish a bank and then authorisation of the newly established bank to undertake activity.
The requirement of bank licensing results directly from the rules of European law. In accordance with Article 8 of Directive No 2013/36/EU (CRD IV), all Member States must require credit institutions to obtain authorisation before commencing their activities.
In accordance with Article 30a of the Banking Law, a bank incorporated as a joint-stock company and a cooperative bank may be established after having obtained the authorisation from the Polish Financial Supervision Authority. According to the above-mentioned provision, such authorisation must be obtained before the bank is established and must not apply to any existing legal person (company or cooperative). In other words, no legal person other than a bank may be transformed into a bank. The authorisation to establish a bank is granted to its founders, who in the case of a bank in the form of a joint-stock company may be both legal persons and natural persons, and in the case of a cooperative bank only natural persons (at least 10). A bank in the form of a joint-stock company must not have less than 3 founders, which, however, does not apply if the only founder is one of the following entities: the State Treasury, a domestic bank, a credit institution, a foreign bank, a domestic or foreign insurance undertaking, a domestic or foreign reinsurance undertaking, or an international financial institution.
Pursuant to Article 37 of the Banking Law, the Polish Financial Supervision Authority must refuse to grant authorisation to establish a bank if the requirements for the establishment of banks have not been fulfilled, or if the bank’s intended activities would violate the provisions of law, clients’ interests or would not guarantee the security of funds held at the bank, or where the provisions of law applicable in the place of residence or registered office of the founder, or their relations with other entities could prevent the effective supervision of the bank.
The decision on granting authorisation to establish a bank is issued by the Polish Financial Supervision Authority after a careful inspection of compliance with all requirements for the establishment of a bank, including the review of documents and information collected during the proceedings, the assessment of reliability and reality of the business plan of the bank being established, and of regularity and compliance of the bank’s draft articles of association. The assessment of the repute, and economic and financial situation of the founders of the bank, as well as the repute and professionalism of persons who are to manage the bank being established constitute a very essential premise for granting the authorisation to establish a bank. In the document of authorisation to establish a bank, the Polish Financial Supervision Authority defines the bank’s business name, its registered office, the names of the founders and shares subscribed by them, the amount of the initial capital, the activities the bank is authorised to carry out, and the conditions on which the Polish Financial Supervision Authority authorises the bank to commence its activities, and approves the bank’s draft articles of association and the composition of the bank’s first management board.
The authorisation to establish a bank is the first element of a bank licence. Having obtained the licence, the founders may establish the bank, which, from a legal point of view, takes place concurrently with its registration in the National Court Register. From now on, the bank operates as an independent legal person capable of being the subject of rights and obligations. Yet, it is not a fully-fledged bank as it does not have the right to conduct operating activities involving (and here we come back again to the definition of bank cited in the introduction) the performance of banking operations which expose any repayable funds to risk. In order to obtain the right, a newly established bank must, under Article 36(1) of the Banking Law, apply to the Polish Financial Supervision Authority for authorisation to commence the activity. Under Article 36(3) of the Banking Law, the Polish Financial Supervision Authority issues authorisation to commence the activity after it has established that the bank:
1. is properly prepared in organisational terms to commence the activity
2. has collected the full amount of initial capital
3. has appropriate facilities for the safekeeping of funds and valuables, taking into consideration the scope and types of its banking activities.
4. complies with other requirements laid down in the decision on granting authorisation to establish a bank.
The authorisation to commence the activity is the second and the last element of a bank licence. To complete the discussion about bank licensing, it should also be noted that almost all currently operating cooperative banks and certain banks operating as joint-stock companies—due to the fact that they were established before 1989—were established without authorisation from any supervisory authority. The legal basis for the operation of those banks is Article 178(1) of the Banking Law. Under the said provision, any bank which started its activities prior to entry into force of the Act of 31 January 1989—the Banking Law and has not been authorised by the President of the National Bank of Poland to establish a bank is authorised to conduct the banking operations provided for in the articles of association, insofar as that would not be contrary to statutory law. In respect of those banks, it is therefore right and proper to say that they hold a bank licence understood not as appropriate authorisation to conduct banking operations but as the right to conduct banking activities in the territory of the Republic of Poland resulting from the above-mentioned provision of the Act. The list of banks (entities holding a bank licence) is available on the website of the KNF: www.knf.gov.pl.