POLAND Law and Practice Contributed by: Agnieszka Janicka and Krzysztof Hajdamowicz, Clifford Chance
2.2 Procedure and Sanctions in the Event of 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 compa - nies 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 depend - ing 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 cer - tain rights for the regulator, it is usually recom - mended, where feasible and practicable, for the proposed investor to introduce itself to the regu - lator 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 dominant/significant participation in protected Polish companies listed by name in the gov - ernmental regulation could lead to both crimi - nal sanctions (from six months to five years of imprisonment) and financial penalties (PLN100 million). FDI Regime Procedure The approval of the relevant authority is gener - ally required prior to the completion of an FDI transaction (although in some instances the fil - ing can be made only by the target entity after completion of the acquisition). The notification procedure should be commenced prior to: • entering into any agreement resulting in an obligation to acquire or achieve a significant participation/dominance;
• companies active in the development or modification of software across sectors including energy, water, science, technology and commerce, food supply, and all software – regardless of sector – that is used for data gathering and processing; • companies that own “critical infrastructure” (as defined in a separate act); and • all Polish public companies listed on the War - saw Stock Exchange, regardless of the sector in which they operate. A de minimis exemption applies for Polish target companies with Polish revenue below EUR10 million in either of the two financial years pre - ceding the notification. Furthermore, the Polish government is entitled to introduce additional exemptions. Permit to Acquire Real Property The acquisition of real property (including the so- called perpetual usufruct right in real property) by foreigners requires a permit from the minister of the interior and administration. This restriction also applies to the acquisition of shares by a for - eigner where this results in the takeover of con - trol over a company owning real property and to the purchase of shares in a company owning real property that is a controlled entity. In general, agricultural land may only be purchased by indi - vidual farmers; all other entities must first obtain permission from the president of the National Agriculture Support Centre, and this is subject to the fulfilment of strict requirements. Therefore, regulatory requirements, if any, must always be double-checked at an early stage of the preparations for a proposed investment.
683 CHAMBERS.COM
Powered by FlippingBook