POLAND Law and Practice Contributed by: Wojciech Trzciński, Łukasz Łyczko, Konrad Frąckowiak and Katarzyna Kaczmarzyk, PwC Legal Business Solutions
Activities of EU AIFMs in Poland EU AIFMs are allowed to operate in Poland on a cross- border basis. Such operations may be carried out directly or through a branch, subject to compliance with the notification procedure to the PFSA. Such EU AIFMs are allowed to take over the management of SOEIFs, CEIFs or externally managed AICs. In addition, Polish AIFMs may outsource certain func - tions (including portfolio management) to local or for - eign entities, depending on the scope of the functions to be outsourced, compliance with additional require - ments imposed by the PFSA, and the obligation to obtain additional approvals from the PFSA. Other Local Requirements There is no requirement for AIFs to employ local staff. SOEIFs and CEIFs are managed by the IFC, which acts as their governing body. In the case of the IFC itself, there is no legal requirement to appoint (or employ) Polish citizens or residents. The same applies to AICs and AIFMs of externally managed AICs. However, in its official recommendations, the PFSA expects that the composition of the governing bodies of supervised entities (including AIFMs) should ensure an appropriate proportion of persons who speak Pol - ish and have appropriate experience and knowledge of the Polish financial market. 2.9 Rules Concerning Service Providers Depositary Polish AIFs must have a Polish depositary that, in par - ticular, monitors cash flows, holds the AIF’s assets or maintains the asset register. This role can only be performed by selected regulated entities, such as financial institutions, banks or the National Securities Depository. The depositary acts independently in the interests of the AIF’s participants. Issuance Agents Investment funds also involve agents who maintain the registers of participants (in the case of the CEIF, co-operation with so-called issuance agents is man - datory). The issuance agent may be an investment company (eg, a Polish or foreign entity conducting its business in Polish territory, authorised under Polish
ments in shares of companies investing in cryptocur - rencies are also questionable, as the PFSA has issued official warnings regarding this type of investment. In the case of AICs, investment in cryptocurrencies is not excluded, but – given that AICs are subject to the supervision of the PFSA – the possibility of AICs investing in cryptocurrencies is also questionable. Cannabis/Cannabis-Related Investments The recreational use of cannabis is prohibited in Poland. However, the legislation does not explicitly exclude indirect investments by AIFs in companies active in the cannabis industry. Investment decisions made in that respect should take into consideration the indirect risks to the AIF, including reputational risks. Receivables Portfolios Receivables investment funds are a special type of CEIF whose activity is mainly focused on investing in receivables portfolios. By issuing investment cer - tificates, a receivables investment fund raises funds to purchase receivables or rights to receivables, and then collects or trades the purchased receivables or rights to receivables in order to make a profit. 2.7 Use of Subsidiaries for Investment Purposes AIFs may hold shares and operate through portfolio companies. In the case of non-public CEIFs, which are targeted at a narrow group of investors, it is common practice to have a number of portfolio companies, each of which is controlled by the CEIF and carries out separate business activities. 2.8 Local/Presence Requirements for Funds In general, the IFA requires AIFs to be established and registered in Poland. The IFA also requires that SOE - IFs and CEIFs and their AIFM (the IFC) have the same registered office and address. The IFC must be domi - ciled in Poland, which refers to both the incorporation and the management seat. In the case of AICs, the AIFM must be a company incorporated in Poland. However, there are no further requirements as to the actual management seat.
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