On 24th July new investment control regulations came into force. The new law on investment control is part of the government’s Anti-Crisis Shield 4.0. According to the law, the President of UOKiK is able to protect Polish companies that are of critical importance to order, security or public health.
Pursuant to the amendment to the Investment Protection Act the President of UOKiK will be able to protect entities based in Poland that are crucial for maintaining public safety, order and health, among others
- conducting business activities related to: power, gas, fuels, telecommunications, food processing, manufacture of medicines, chemicals and fertilizers, explosives, weapons and ammunition, as well as military and/or police technologies;
- developing software for core services for society, such as energy, fuels, water supply, cash supply, card payments, hospitals, sales of prescription drugs, transport and food supply, and
- public companies regardless of the type and sector of activity.
The prerequisite for protection is also a sufficiently high revenue of the company – it must exceed the equivalent of EUR 10 million in Poland in one of the two financial years preceding the intention to take it over.
The UOKiK notification obligation shall apply to transactions resulting in the acquisition, achieving substantial shareholding or acquiring dominance by entities with a registered office or citizenship (for natural persons) outside a EU Member State, the European Economic Area (EEA) and the Organisation for Economic Cooperation and Development (OECD).
The procedure is to be split into two phases, as in concentration control-related cases. The first phase will be a preliminary verifying procedure, which is intended to distinguish between simple cases that do not require further examination and more complex ones. This phase is to last up to 30 days. As expected, most of the transactions under consideration will be completed in this phase. In such cases, the President of UOKiK will issue a notice of non-opposition. The Office shall strive to conclude cases that do not raise doubts as soon as possible. To ensure more efficient processing of such cases – if a given transaction is also subject to notification to the President of UOKiK under concentration control regulations, then both cases shall be handled by the same official.
Only a small number of specific cases will be referred to the appropriate control procedure (phase two), i.e. those that may pose a major threat to public order, public security or public health. According to the Office’s guidelines, this shall refer to situations where, for example, there is a risk that an undertaking of substantial value for public interest might be forced to move abroad, close down its plant, siphon technologies or that this entity’s business operations might be compromised otherwise. This phase of the procedure is to last a maximum of 120 days.
Achieving or acquiring a significant shareholding or dominance in a protected undertaking without filing a notification or despite the President of UOKiK’s objection will be null and void by law. This will also be subject to a fine of up to PLN 50 million and to imprisonment from 6 months to 5 years. Sanctions may also be ordered in combination.
