POLAND Law and Practice Contributed by: Agnieszka Janicka and Krzysztof Hajdamowicz, Clifford Chance
Turnover includes the turnover of each party’s capital group and part of the turnover of their jointly controlled entities (but the seller’s turnover is excluded). The notification obligation is trig - gered if either of these thresholds is met; the thresholds may be met by one party only. Exemptions A transaction does not have to be notified if any of the following exemptions applies: • in the case of the acquisition of control and/or assets – if the target’s turnover in Poland did not exceed EUR10 million in either of the two financial years preceding the concentration; • 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 preceding the concentration; and • in the case of inter-related transactions (simultaneous or subsequent 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 the acquired targets and targeted assets gener - ated 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 notification obligation in the case of extrater - ritorial joint ventures with no Polish operations, no plans to conduct such operations within the next three years and no vertical links with com - panies operating in Poland. Other Transactions The following transactions fall outside the merg - er control 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 proceedings (if the target does not compete with the buyer’s capital group). 6.2 Merger Control Procedure There is no formal pre-notification procedure in Poland, although consultations with the PCA prior to a transaction are possible. There is no statutory deadline by which a notification must be made to the PCA. However, the parties may not close the transaction until the PCA’s clear - ance has been obtained or the statutory peri - od for a decision to be issued by the PCA has lapsed (the standstill obligation). As a general rule, the PCA should examine the transaction within one month of the date the merger control proceedings are instituted (Phase 1). The PCA may extend the proceedings for an additional four months (Phase 2) if: • the case is complex; • the transaction raises competition concerns; or • a market survey is required. The statutory time limit for issuing a clear - ance decision is suspended each time the PCA requests additional information and/or docu - ments, and resumes only when the response is actually delivered to it. When a proposed concentration threatens to significantly limit effective competition, the PCA informs the parties in writing of its objections to the concentration. In order to enable clear - ance to be given, the PCA may accept a party’s
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