On 29 September, the Act amending certain acts in connection with ensuring the development of the financial market and the protection of investors (‘Warzywniak’ Act) entered into force. The amendment covers 41 acts, including the Banking Act, the Public Offering Act, the Financial Instruments Trading Act, the Bonds Act, the Investment Funds Act, the Payment Services Act, the Capital Market Supervision Act and the Financial Market Supervision Act. Let’s look at the most important changes.
The Banking Law
The Act has introduced a number of changes to outsourcing.
Outsourcers to whom banks have directly outsourced certain activities may now sub-outsource these, subject to the bank’s consent.
It is possible to outsource and sub-outsource activities related to the conclusion of contracts not only for cards, but also for other payment instruments or e-banking services.
The list of documents and information to be submitted to the Polish Financial Supervision Authority (KNF) in connection with outsourcing and sub-outsourcing has been extended.
Banks are no longer required to obtain a separate brokerage licence. They may now extend the scope of their activities to include brokerage by amending their articles of association.
The amended Article 141 of the Banking Law allows the KNF to impose fines also on former management and supervisory board members if the violations listed in the said provision were committed during their term of office.
The Bonds Act
The possibility to offer corporate bonds to retail clients outside of regulated markets, alternative trading systems (ATSs) and crowdfunding platforms has been limited.
The minimum nominal value of a bond that can be offered is at least EUR 40,000. The sale of bonds to retail clients may only take place via investment firms.
The nominal value limit does not apply to bonds admitted to trading on regulated markets or ATSs, which is justified by the greater transparency of issuers on these markets.
The Act has introduced transition bonds, i.e. bonds issued to finance new investments that promote the acceleration of the country’s sustainable economic development.
The nominal value of a single transition bond is PLN 1,000 and the maturity cannot be shorter than five years. The bond issue can be made via a public offering. The total value of the issue, calculated at the issue price, may not be less than PLN 20,000,000 or its equivalent in another currency.
The Investment Funds Act
The amendment has introduced a number of changes to the marketing of alternative investment companies (AICs) to retail clients. As of 29 September, natural persons may be considered professional clients if the value of their AIC contribution is no less than the PLN equivalent of EUR 60,000.
This does not apply to companies listed on regulated markets or admitted to an ATS, as expressly stated in the joint communiqué of the KNF and the MF of 1 September 2023.
It is now prohibited for AICs to enter into loan or other similar agreements with natural persons who are not recognised as professional clients or to issue bonds or other securities that are not AIC participation rights in favour of such persons.
The Public Offering Act
The amended Article 68 of the Act has extended the powers of the KNF to obtain information and explanations, including reports and documents, as part of its supervision of issuers. The new obligations apply to issuers whose securities have already been delisted and to any entity, other than a supervised entity, that has been or is a party to a contract, transaction or agreement with an issuer or a company seeking admission to trading.
Shareholders are now required to submit a notice of change in the threshold of the total number of votes, as referred to in Article 69(1) of the Act, via the ICT system available on the KNF website. If the system cannot be used, it will be possible to submit the notice via the email indicated on the KNF website.
Article 83a of the Public Offering Act has been amended to allow shareholders holding less than 5% of the total number of votes at the General Meeting to request the buy-back of shares in public companies that have been excluded from trading via sanctions. The right of buy-back is granted to the shareholders of ATS-listed public companies.
As a result of the amendment, special auditors appointed by the General Meeting of public companies pursuant to Article 84 of the Act may now audit not only the public company, but also its subsidiaries. The subject of the audit must be specified in a resolution.
The Capital Market Supervision Act
The Polish Financial Supervision Authority Office (UKNF) has been authorised to disclose information subject to professional secrecy (from inspection reports describing detected irregularities and final administrative decisions) to capital market participants, who are natural persons, for the purpose of pending or planned civil proceedings against a financial institution.
The UKNF may, subject to court approval, disclose information at the request of a natural person requesting the information, provided that the person substantiates their request, demonstrates a legitimate interest in receiving such information, and the information does not relate to third parties who are not parties to the proceedings.
The amendment has also introduced Article 47a, under which the KNF may – by decision – impose a fine of up to PLN 20 million on the person under inspection if that person prevents or obstructs the commencement or conduct of the inspection.
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