The Polish Government adopts legislation under which transactions involving Polish companies and non-EEA investors would be subject to a new clearance obligation

Due to the COVID-19 pandemic and the looming economic crisis, Poland is currently adopting legislation, under which transactions involving certain Polish companies and non-EEA investors would be subject to a new clearance obligation.

This legislation also temporarily adopts the FDI Screening regulation (Regulation (EU) 2019/452) for the period until 11 October 2020.

The new legislation has recently been adopted by the first chamber of the Polish Parliament and will now be considered by the second chamber of the Parliament and the President.

Scope of the clearance obligation

The legislation will catch a wide scope of investment projects involving Polish companies and non-EEA investors.

Based on the concept of the “protected company”, the new clearance requirement will concern companies that are registered in Poland, generated Polish turnover exceeding EUR 10 million in any of the last two financial years, and:

  • are publicly listed in Poland; and/or
  • hold assets classified as parts of critical infrastructure – i.e., assets that have been identified as key for the functioning of the Polish economy; the list includes communication networks, as well as systems maintaining the continuity of the functioning of the public administration; and/or
  • develop or maintain important software, such as software for power plants, water plants, communication, payments, hospitals, transportation, food supplies etc.; and/or
  • operate in strategic sectors, such as energy, oil and gas, chemicals, military, telecommunications, medical, food etc.

Furthermore, the clearance requirement applies if a non-EEA investor invests in the protected company in one of the following manners:

  • the acquisition of control;
  • the acquisition of a qualifying holding in the protected company, i.e. a holding representing 20% or more of the: (i) votes at the General/Shareholders’ Meeting; (ii) share capital); and/or (iii) share in distributed profits;
  • the purchase or lease of the enterprise (or an organised part thereof) of a protected company through an asset deal. The notification will also be required in cases that the above listed conditions result out of indirect effects of a transaction between companies whose headquarters are outside the territory of Poland.

Finally, the clearance will need to be obtained independently from any other regulatory and antitrust approvals required under Polish law to complete the planned transaction.

Clearance procedure

Transactions involving protected companies and non-EEA investors will need to be notified to the President of the Polish Competition Authority (“UOKiK”) prior to the publication of a public tender for shares or the conclusion of an agreement underpinning the planned transaction.

UOKiK will be able to issue an objection to the notified transaction if such a transaction poses at least a potential threat to public order or public security in Poland.

The clearance procedure consists of two stages:

  • Initial procedure lasting for up to 30 days after which the authority either: (i) does not raise any objections towards the contemplated acquisition, and therefore the acquisition may proceed, or (ii) issues its decision to start a formal control procedure;
  • Formal control procedure lasting for up to 120 days resulting in a positive or negative decision regarding the contemplate acquisition.

Sanctions

Not complying with the procedures as foreseen in the legislation results in the acquisition being null and void and may result in fines of up to PLN 50 million, or imprisonment of between six months and five years.

Entry into force

Given that the legislation is being enacted in relation to the COVID-19 pandemic, it will probably enter into force in July 2020.

The restrictions are to apply for 24 months from the date when the new legislation will enter into force.

Importantly, the restrictions will apply to transactions not completed when the legislation enters into force. In effect, all conditional transactions with an expected completion date after the legislation enters into force will need to be notified and cleared under the new legislation.

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Authors

Quotation

Marcin Alberski, Piotr Dynowski, The Polish Government adopts legislation under which transactions involving Polish companies and non-EEA investors would be subject to a new clearance obligation, 19 June 2020, e-Competitions July 2020, Art. N° 95453

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