POLAND Law and Practice Contributed by: Agnieszka Janicka and Krzysztof Hajdamowicz, Clifford Chance
• acquisitions of direct or indirect control (be it sole or joint) over one or more undertakings and/or assets; and • the creation of a joint venture (including non-full- function joint ventures). The PCA must be notified of a transaction if the fol - lowing occur in the financial year preceding the con - centration: • the combined global turnover of the parties exceeds EUR1 billion; and/or • the combined turnover of the parties exceeds EUR50 million in Poland. Turnover includes the turnover of each party’s capital group and part of the turnover of their jointly con - trolled entities (but the seller’s turnover is excluded). The notification obligation is triggered if either of these thresholds is met; the thresholds may be met by one party only. Exemptions A transaction does not have to be notified if any of the following exemptions applies: • in the case of the acquisition of control and/or assets – if the target’s turnover in Poland did not exceed EUR10 million in either of the two financial years preceding the concentration; • in the case of mergers or the creation of a joint venture – if the turnover of any party (their capi - tal group) to the merger or joint venture did not exceed EUR10 million in Poland in either of the two financial years preceding the concentration; and • in the case of inter-related transactions (simultane - ous or subsequent acquisitions from one and the same capital group of assets and/or control over an undertaking or undertakings that occur within a two-year period) – if the combined turnovers of all the acquired targets and targeted assets generated in Poland did not exceed EUR10 million in either of the two financial years preceding the most recent concentration. In addition, there is a soft law exemption from the notification obligation in the case of extraterritorial joint ventures with no operations in a relevant market
covering Poland (eg, Polish/EU-wide/global market), no plans to conduct such operations within the next three years and no vertical links with companies oper - ating in Poland. Other Transactions The following transactions fall outside the merger con - trol system: • intra-group transactions; • acquisitions of shares, on a temporary basis, by a financial institution or by an undertaking for the purpose of securing liabilities; and • acquisitions of control or assets in bankruptcy pro - ceedings (if the target does not compete with the buyer’s capital group). 6.2 Merger Control Procedure There is no formal pre-notification procedure in Poland, although consultations with the PCA prior to a transaction are possible. There is no statutory dead - line by which a notification must be made to the PCA. However, the parties may not close the transaction until the PCA’s clearance has been obtained or the statutory period for a decision to be issued by the PCA has lapsed (the standstill obligation). As a general rule, the PCA should examine the trans - action within one month of the date the merger control proceedings are instituted (Phase 1). The PCA may extend the proceedings for an additional four months (Phase 2) if: • the case is complex; • the transaction raises competition concerns; or • a market survey is required. The statutory time limit for issuing a clearance deci - sion is suspended each time the PCA requests addi - tional information and/or documents, and resumes only when the response is actually delivered to it. When a proposed concentration threatens to signifi - cantly limit effective competition, the PCA informs the parties in writing of its objections to the concentration. In order to enable clearance to be given, the PCA may accept a party’s proposed commitments (remedies) – eg, divestment.
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