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According to estimates by the Polish Bank Association, 75.9%
of banks in Poland use outsourcing and a further 13.8% plan to
commission certain activities to external entities. Current legal
conditions in Poland make it difficult for banks to use
outsourcing. From this year on, the possibility of using such
services became even more complicated.
Current problems
Bank outsourcing is an instrument by which the bank (outsourcer)
commissions banking activities to be performed by
"external" entities not belonging to the bank's
organisational structure (insourcers). It facilitates the
activities of financial institutions, making processes easier and
reducing costs. By outsourcing some of its own activities, the bank
can focus more on its core business from the point of view of
strategy, specialisation and experience, or influence on financial
results. The experience of cooperation among banks and
entrepreneurs based on the currently applicable provisions of the
Banking Law points to the need to change the current
regulations.
Entrepreneurs commissioned by the bank to perform certain
activities often find it necessary to use the services of other
entrepreneurs. But the current provisions do not include the
concept of sub-outsourcing. Furthermore, in an event of force
majeure, an entrepreneur, as a party to the agreement
concluded with a bank, cannot commission a single activity to
another entrepreneur.
Further complications arise in practice due to the separate
regulation of so-called foreign outsourcing. If a bank wants to
conclude an outsourcing agreement with a foreign entrepreneur not
based in an EU member state or an agreement on performance of
certain activities permanently or temporarily abroad, it requires a
permit from the Financial Supervision Authority. The argument in
favour of changing the above regulation is the need to remove
doubtful interpretations arising out of the current wording,
suggesting that a permit from the Financial Supervision Authority
is required in order to conclude an agreement under which the
activities to be outsourced may be performed abroad in a member
state of the EU. The current interpretation is contrary to Arts. 43
and 49 of the European Union Treaty, which establish the principle
of freedom to conduct business and perform services.
Banks are also obliged to provide information to the Financial
Supervision Authority. This obligation is extremely restrictive
because banks are always obliged to notify the Financial
Supervision Authority of their intention to conclude an outsourcing
agreement at least 14 days in advance. Under the currently
applicable provisions of the Banking Law, the obligations to report
the conclusion of an outsourcing agreement are too broad, in
particular reporting obligations which de facto create an
additional and unnecessary administrative requirement for entities
involved in outsourcing activities.
Proposed amendments
Because of the above, an amendment to the Banking Laws proposed
by the Polish government is very welcome. On 19 April 2010, the
Ministry of Finance adopted a bill to amend the Banking Law in
terms of regulations of bank outsourcing. The proposed amendments
include inter alia an extension of the statutory catalogue
of activities which may be entrusted to an entrepreneur or foreign
entrepreneur without a permit from the Financial Supervision
Authority. The bill also introduces sub-outsourcing, which will
enable entrepreneurs or foreign entrepreneurs who are party to an
agreement with a bank to commission certain activities to another
entrepreneur or foreign entrepreneur after meeting additional
requirements.
Two cases of sub-outsourcing are currently planned. The first
would be to commission activities aimed at achieving the main
purpose of the agreement. The second would be to commission the
activity on a temporary and one-off basis when the insourcer cannot
perform the activity itself due to force majeure. Another
proposed amendment would exclude from so-called foreign outsourcing
agreements ensuring that entrusted activities are performed abroad
in the territory of an EU member state.
The abovementioned proposed amendments result from the intention
to adjust outsourcing adequately to the needs of the trade.
However, there is no need to adjust local regulations to the
community regulations. Bank outsourcing has not yet been regulated
by binding acts of community law. Member states will remain
responsible for regulating bank outsourcing, the scope of this
regulation and specific solutions.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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