POLAND Law and Practice Contributed by: Agnieszka Janicka and Krzysztof Hajdamowicz, Clifford Chance
2.2 Procedure to Obtain Approval and Sanctions for Non-Compliance General Where a permit issued by the minister of the interior and administration is required for the acquisition of real property or shares in companies that own real properties, acquisition without such a permit will be null and void. It may take several months to obtain a permit; the actual duration of the proceedings may vary depending on the circumstances. In respect of certain sectors, where the formal consent of the regulator is not required but a change in the shareholding would trigger certain rights for the regu - lator, it is usually recommended, where feasible and practicable, for the proposed investor to introduce itself to the regulator before making the investment in order to determine whether the investment would raise any concerns for the regulator. In addition, a failure to notify the acquisition of a domi - nant/significant participation in protected Polish com - panies listed by name in the governmental regulation could lead to both criminal sanctions (from six months to five years of imprisonment) and financial penalties (PLN100 million). FDI Regime Procedure The approval of the relevant authority is generally required prior to the completion of an FDI transaction (although in some instances the filing can be made only by the target entity after completion of the acqui - sition). The notification procedure should be com - menced prior to: • entering into any agreement resulting in an obliga - tion to acquire or achieve a significant participa - tion/dominance; • the announcement of a tender offer for the acquisi - tion of a Warsaw Stock Exchange-listed company; or • any other event resulting in the acquisition or achievement of a significant participation/domina - tion. However, in a multi-stage transaction, notifications are accepted before the signing of the last agree -
ment resulting in the acquisition or achievement of a significant participation/domination, on the basis of, for example, a conditional/preliminary agreement or a letter of intent. Following the notification, the authority has 30 busi - ness days to complete the initial proceedings and approve the FDI transaction or initiate additional con - trol proceedings, which may last up to 120 calendar days. However, the authority may extend this deadline substantially by asking questions, as the clock stops ticking each time the authority sends out its question, to resume only when the response is actually delivered to it. There is no pre-notification procedure. Sanctions Any FDI transaction made in breach of the FDI regime will be null and void, and the investor will not be able to exercise its rights attached to the acquired shares (including any voting rights). Non-compliance with the FDI regime constitutes a criminal offence subject to a penalty of imprisonment from six months to five years and a fine of up to PLN50 million. A penalty of imprisonment from six months to five years and a fine of up to PLN5 million may also be imposed on managers of target companies who fail to notify the authority of the shareholders’ non-compli - ance with the FDI regime, and on those who attempt to exercise voting rights in breach of the FDI regime. 2.3 Commitments Required From Foreign Investors While the authorities do not make approval conditional upon certain commitments, some commitments will usually be required if an investor (whether foreign or domestic) applies for state aid for its investment. Certain regulators (eg, the Polish Financial Supervi - sory Authority) expect various specific commitments from both foreign and domestic investors who wish to acquire large stakes in regulated financial institutions. 2.4 Right to Appeal There is no specific authorisation procedure; however, where licences, concessions and permits are required, they are granted in administrative proceedings, and any unsatisfactory decision may be challenged.
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