POLAND Law and Practice Contributed by: Agnieszka Janicka and Krzysztof Hajdamowicz, Clifford Chance
2.3 Commitments Required From Foreign Investors While the authorities do not make approval con - ditional upon certain commitments, some com - mitments will usually be required if an investor (whether foreign or domestic) applies for state aid for its investment. Certain regulators (eg, the Polish Financial Supervisory Authority) expect various specific commitments from both foreign and domestic investors who wish to acquire large stakes in regulated financial institutions. 2.4 Right to Appeal There is no specific authorisation procedure; however, where licences, concessions and per - mits are required, they are granted in administra - tive proceedings and any unsatisfactory deci - sion may be challenged. In contrast to regular competition law proceed - ings before the PCA (where one may appeal to a special court), the FDI regime will follow the standard administrative appeal route; appeals will be decided by administrative courts. 3. Corporate Vehicles 3.1 Most Common Forms of Legal Entity Foreign investors usually operate in Poland through one of the available domestic enti - ties. However, it is not uncommon for investors (especially from the EEA) to register an overseas company as having a branch or representative office in Poland, without incorporating a new Polish legal entity. The choice of an appropriate legal form usu - ally depends on the nature of the contemplated business.
• the acquisition of a Warsaw Stock Exchange- listed company, prior to announcement of the tender offer; or • any other event resulting in the acquisition or achievement of a significant participation/ domination. However, in a multi-stage transaction, notifi - cations are accepted before the signing of the last agreement resulting in the acquisition or achievement of a significant participation/domi - nation, on the basis of, for example, a condi - tional/preliminary agreement or a letter of intent. Following the notification, the authority has 30 business days to complete the initial proceed - ings and approve the FDI transaction or initiate additional control proceedings, which may last up to 120 calendar days. However, the authority may extend this deadline substantially by asking questions, as the clock stops ticking each time the authority sends out its question, to resume only when the response is actually delivered to it. There is no pre-notification procedure. Sanctions Any FDI transaction made in breach of the FDI regime will be null and void, and the investor will not be able to exercise its rights attached to the acquired shares (including any voting rights). Non-compliance with the FDI regime constitutes a criminal offence subject to a penalty of impris - onment from six months to five years and a fine of PLN50 million. A penalty of imprisonment from six months to five years and a fine of PLN5 million may also be imposed on managers of tar - get companies who fail to notify the authority of the shareholders’ non-compliance with the FDI regime, and on those who attempt to exercise voting rights in breach of the FDI regime.
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