New provisions on the control of certain investments
As part of the so-called Anti-Crisis Shield 4.0. new provisions of the Act on Control of Certain Investments have come into force. The amendment is aimed at increasing the control of the President of the Office of Competition and Consumer Protection (UOKIK) with respect to the acquisition of Polish enterprises whose business is important for broadly understood public: health, safety and order. The new regulations are aimed at increasing the protection of strategic entities on the Polish market, weakened economically by the situation related to the outbreak of the COVID-19 pandemic. The regulations were introduced temporarily, for a period of two years.
Who is protected
Investments concerning the acquisition or reaching of a significant participation or achievement of domination in companies having their registered office in Poland by entities (legal persons or natural persons) from outside the EU, EEA or OECD shall be controlled by the President of the Office of Competition and Consumer Protection. Subsidiaries of investors from outside of these territories will also be subject to the same restrictions, even if the subsidiaries are registered in the territory of the EU / EEA / OECD area.
Significant participation is defined as reaching or exceeding respectively the 20% and 40% thresholds for:
- the total number of votes in the decision making body of a protected entity;
- a share in the profits of a protected entity;
- a capital share in a partnership which is a protected entity.
According to the Act, protection is to be granted to entrepreneurs whose revenue from sales and services exceeded the equivalent of EUR 10 million on the territory of Poland (in any of the two financial years preceding the notification) and who also meet at least one of the conditions listed below:
- having the status of a public company, regardless of the type of business activity;
- possession of property disclosed in a uniform list of facilities, installations, equipment and services included in the critical infrastructure;
- creating or modifying certain types of software or providing a cloud computing data collection or processing services;
- conducting business activity in one of the numerous industries indicated in the Act, including those related to electricity, gas, fuels, telecommunications or production of medicines.
It should be also noted that a significant participation or dominance is achieved both in the case of transactions of acquisition of shares, as well as when it occurs as a result of corporate changes, such as, among others, an increase / decrease in the company’s capital, a change in the preference of shares or a division or merger of the company.
Prior control will also be exercised in cases of acquisition of dominance or significant participation indirectly through subsidiaries of the investor controlling them.
Procedure for investment control
Control proceedings shall be initiated on the basis of a notification from the obliged entity, which, depending on the type of investment, is:
- the protected entity,
- the acquirer of shares, or
- the entity that controls the protected entity.
In addition, if there are indications of an abuse or circumvention of the law, proceedings may be initiated ex officio.
The control proceedings are to be divided into two phases, the first of which includes preliminary control proceedings which are to last about 30 working days. The second phase includes an appropriate control procedure and shall last up to 120 working days. The second phase shall cover in particular those cases which may pose a threat to public order and security. Such a threat may include inter alia the risk of production being moved abroad, the closure of a plant or the removal of technology.
Skipping the notification procedure or achieving or acquiring a significant participation or dominance in the protected entity despite the President of the Office of Competition and Consumer Protection objection will result in the invalidity of the action by virtue of law. Moreover, violation of the amended regulations is punishable by a fine of up to PLN 50 million and imprisonment from 6 months to 5 years.
Assessment of amendments
The new rules will have to be taken into account for a vast number of entities when carrying out transactions, while at the same time taking additional caution.
There are concerns on the part of business that these rules may significantly hinder access to capital for domestic companies and will increase the costs of both possible transactions and ongoing corporate services.
This may slow down the process of taking control over Polish companies – regardless of who currently exercises control over them and who intends to acquire their shares or stocks.
Should you have any questions, please do not hesitate to contact us.
Attorney at Law, Senior Partner,
Head of Transactional Practices Group
T: +48 608 444 650
T: +48 604 122 712