POLAND Law and Practice Contributed by: Agnieszka Janicka, Krzysztof Hajdamowicz and Jarosław Lorenc, Clifford Chance LLP
Certain limitations apply regardless of the investor’s origin, with regard to certain regulated activities where a concession, licence or registration in the register of regulated activities may be required. If so, the rel - evant regulatory bodies may be authorised to revoke licences for state security reasons. In the case of some sector-specific regulations, the regulators have the express right to revoke a licence upon a change of control. The foreign direct investment regime introduced in response to the COVID-19 pandemic and recently extended indefinitely applies to foreign investors (dominant entities) as follows: • in the case of natural persons: persons who are not citizens of an EU/EEA/Organisation for Economic Co-operation and Development (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 foreign investors. The list extending the application of the rules is broad and includes the following: • 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. A foreign direct investment 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 com - pany or, in the case of a Polish partnership, making a contribution to a Polish partnership equal to or greater than 20% or 40% of the total contributions in the partnership; • acquiring a stake in the profits of a Polish company equal to or greater than 20% or 40%; or • otherwise acquiring 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, entering into a control (management) agreement and/or a profit transfer agreement in relation to a Polish company or the acquisition of a majority of votes in a Polish company. If the foreign direct investment transaction concerns a company that operates in any of the sectors that are deemed “strategic” or conducts “strategic” activi - ties, it is subject to the new foreign direct investment regime and requires prior clearance from the relevant authority (in most instances, the Minister for State Assets). The regime affects: • 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 and food supply and all software, regardless of the sec - tor, that is used for data gathering and processing; • companies that own “critical infrastructure” (as defined in a separate law); and • all Polish public companies listed on the WSE, 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 either of the two financial years preceding the notifica - tion. Furthermore, the Polish government is entitled to introduce additional exemptions. 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. Any foreign direct investment transaction made in breach of the foreign direct investment regime will be
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