POLAND Law and Practice Contributed by: Agnieszka Janicka, Krzysztof Hajdamowicz and Jarosław Lorenc, Clifford Chance LLP
Although the term “tender offer” is commonly used when describing this structure in the English language, it is not strictly accurate from a legal point of view. This is also why shareholders are often referred to as “tendering” or “subscribing” to the “tender offer”, as opposed to simply “accepting” it. In both private and public M&A transactions it is also possible to merge two companies by a share exchange, but these structures are implemented only occasionally and M&A transactions are usually effect - ed through acquisitions rather than mergers (mergers often occur as part of a post-completion integration of businesses). Therefore, in this guide the focus is on acquisitions and comments on mergers are limited. 2.2 Primary Regulators Takeovers of companies registered in Poland and list - ed on the Warsaw Stock Exchange are supervised by the Polish Financial Supervision Authority (the “PFSA/ KNF”). The acquisition of shares in a Polish public company is governed by the Act on Public Offerings, Conditions Governing the Introduction of Financial Instruments to Organised Trading and Public Companies of 29 July 2005. This Act came into force on 24 October 2005 and has been supplemented by secondary legislation. The conduct, form, structure and timetable of takeo - ver transactions is exclusively regulated by primary and secondary legislation and not by any voluntary code or set of rules established by a stock exchange. As a result, the Polish regulator has no power to issue any waivers to many of the Polish provisions of law. The regulator’s power to assist with interpreting Polish law is limited and these interpretations are not bind - ing, even on the regulator itself. In its capacity as regulator, the PFSA/KNF also has jurisdiction over M&A transactions concerning banks, insurance companies, brokerage houses and some other types of regulated financial institutions. The Polish Competition Authority (the “PCA”) is the competent authority for the clearance of foreign direct investments and merger clearance, unless the matter
falls under the mandatory jurisdiction of the European Commission. Transactions regarding entities that hold agricultural land may require clearance from the National Agri - cultural Support Centre ( Krajowy Ośrodek Wsparcia Rolnictwa or KOWR). Clearance from the Minister of the Interior may be required for a non-European Economic Area (EEA) buyer for the acquisition of real estate or shares in a company that holds real estate. Clearance from the Minister for State Assets or other competent authority may be required for the acquisi - tion of shares in an entity that is covered by an invest - ment protection regime (see 2.6 National Security Review ). Finally, if a transaction concerns an entity that operates in a regulated sector, the relevant regulator may have some jurisdiction over M&A transactions in respect of the regulated entity (eg, the National Broadcasting Council ( Krajowa Rada Radiofonii i Telewizji or KRRiT) has jurisdiction over radio and TV broadcasters). 2.3 Restrictions on Foreign Investments Foreign investment in Poland does not generally require special approval from the authorities. As an EU Member State, Poland applies the principle of free movement of capital and the principle of non-discrim - ination. Therefore, investors from EU, EEA or Euro - pean Free Trade Association (EFTA) member states may invest according to the same principles as Polish citizens and are not treated as foreigners. However, in order to enjoy the same rights as Polish citizens, foreign investors need to meet certain crite - ria, eg, obtain a residence permit in Poland. Otherwise (save for where international treaties provide different - ly), an investor may only participate in a limited liability company, joint stock company, limited partnership or partnership limited by shares. Moreover, there are limitations on foreign equity par - ticipation with regard to some sectors of the economy, such as aviation and radio and television broadcast - ing.
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