POLAND Law and Practice Contributed by: Agnieszka Janicka and Krzysztof Hajdamowicz, Clifford Chance
ing in strategic Polish companies on the list, so this is not a typical foreign direct investment (FDI) regime. FDI Regime The FDI regime was introduced in response to the COVID-19 pandemic and applies to the following for - eign investors: • in the case of natural persons – persons who are not citizens of an EU/EEA/OECD country; or • in the case of other entities – entities that do not have their registered office in an EU/EEA/OECD country and/or entities that have not had their registered office in an EU/EEA/OECD country for at least two years. This regime also applies to indirect acquisitions by for - eign investors. The list extending the application of the rules is broad and includes the following in particular: • acquisitions made through subsidiaries; • acquisitions made at the request of a foreign inves - tor (including acquisitions by investment portfolio managers made for their clients); and • acquisitions made by entities acting in concert with a foreign investor. An FDI transaction is one that results in a foreign investor acquiring: • a stake equal to or greater than 20% or 40% of the total number of votes in a Polish company or, in the case of a Polish partnership, making a contri - bution to a Polish partnership equal to or greater than 20% or 40% of the total contributions in the partnership; • a participation in the profit of a Polish company equal to or greater than 20% or 40%; or • a significant participation in, or a dominant position over, a Polish company – eg, via the acquisition or lease of an organised part of the enterprise from a Polish company, through entering into a control (management) agreement and/or a profit transfer agreement in relation to a Polish company, or via the acquisition of a majority of votes in a Polish company.
If the FDI transaction concerns a company that oper - ates in any “strategic” sectors or conducts “strategic” activities, it is subject to the FDI regime and requires prior clearance from the ministry responsible for eco - nomic affairs. The regime affects the following: • companies that conduct economic activity across a wide range of sectors, including energy, science, technology, telecommunications, medicine and food produce; • companies active in the development or modifica - tion of software across sectors including energy, water, science, technology and commerce, food supply, and all software – regardless of sector – that is used for data gathering and processing; • companies that own “critical infrastructure” (as defined in a separate act); and • all Polish public companies listed on the Warsaw Stock Exchange, regardless of the sector in which they operate. A de minimis exemption applies for Polish target com - panies with Polish revenue below EUR10 million in both of the two financial years preceding the notifica - tion. Furthermore, the Polish government is entitled to The acquisition of real property (including the so-called perpetual usufruct right in real property) by foreign - ers requires a permit from the minister of the interior and administration. This restriction also applies to the acquisition of shares by a foreigner where this results in the takeover of control over a company owning real property and to the purchase of shares in a company owning real property that is a controlled entity. In gen - eral, agricultural land may only be purchased by indi - vidual farmers; all other entities must first obtain per - mission from the president of the National Agriculture Support Centre, and this is subject to the fulfilment of strict requirements. Therefore, regulatory requirements, if any, must always be double-checked at an early stage of the prepara - tions for a proposed investment. introduce additional exemptions. Permit to Acquire Real Property
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