The Ministry of Finance has begun work on amending provisions on banking outsourcing, (present in banking legislation since 1 May 2004) to adapt them to the demands of the financial markets.
The Ministry of Finance ordered inter-departmental consultations to take place on the draft assumptions for such amendments. These include:
- enabling operations to be outsourced to partners in general partnerships, thereby removing a discrepancy allowing service providers to be individuals in business on their own account but not those in partnership with others
- widening the categories of activities that can be outsourced without a permit from the Financial Supervision Authority, where they pose no risk to the proper operation of a bank nor to the interests of bank customers
- narrowing the requirement that banking activities be outsourced under an agency agreement (needed because some banking operations cannot effectively be outsourced under an agency arrangement)
- allowing certain outsourced activities to be sub-contracted by the service provider to a third party that also satisfies the legal requirements for service provision, enabling the main service provider to sub-contract ancillary tasks or maintain operations during an emergency
- changing the rules on banking secrecy and banning any limitation or exclusion of liability by sub-contractors for no or inadequate service provision (it is a consequence of allowing sub-contracting)
- encouraging greater use of outsourcing agreements by limiting information duties in connection with entering banks into outsourcing agreements
- waiving assumption that service providers (whether Polish or foreign) are close affiliated to the bank (it is designed to remove burdensome obligations resulting from this assumption which, in practice, are not relevant for ensuring appropriate supervision of the banking sector)
- modifying the rules for outsourcing by banks to foreign service providers (avoiding a conflict with EC Treaty principles of freedom of establishment and freedom to provide cross-border services within the EU)
- relaxing banking secrecy laws to enable disclosure by banks to sub-contractors of information needed for the due provision of the outsourced services
This article was written for Law-Now, CMS Cameron McKenna's free online information service. To register for Law-Now, please go to www.law-now.com/law-now/mondaq
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The original publication date for this article was 20/05/2010.
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