POLAND Law and Practice Contributed by: Agnieszka Janicka, Krzysztof Hajdamowicz and Jarosław Lorenc, Clifford Chance LLP
null and void, and the investor will not be able to exer- cise its rights attached to the acquired shares (includ - ing any voting rights). Moreover, non-compliance with the foreign direct investment regime constitutes a criminal offence subject to a penalty of imprisonment of between six months and five years and a fine of up to PLN50 mil - lion. A penalty of imprisonment of between six months and 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-compliance with the foreign direct investment regime, and on those who attempt to exercise vot - ing rights in breach of the foreign direct investment regime. 2.4 Antitrust Regulations The following transactions are subject to mandatory merger control by the PCA: • mergers; • 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 only have to be met by one party. Exemptions A transaction does not have to be notified if any of the following exemptions apply:
• in the case of the acquisition of control and/or assets, if the target company’s/assets’ turnover in Poland did not exceed EUR10 million in either of the two financial years preceding the concentra - tion; • in the case of mergers or the creation of a joint venture, if the turnover of any party to the merger or joint venture did not exceed EUR10 million in Poland in either of the two financial years preced - ing the concentration; and • in the case of 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 of the acquired target companies 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 noti - fication obligation in the case of extraterritorial joint ventures which do not, and will not within three years, operate on or have vertical links with any relevant mar - ket encompassing Poland or its part. 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 company does not compete with the buyer’s capital group). The PCA may impose a fine on an undertaking taking part in a concentration (in the case of the acquisition of control and/or assets only on the buyer) of up to 10% of its turnover for a breach of the standstill obli - gation or failure to notify the transaction. The PCA may also impose a fine of up to 50 times the average wage in Poland on individuals from the management who have failed to give notification of an intended concentration.
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