Clifford Chance

Although almost two years have passed since the introduction of the general foreign direct investment ("FDI") control regime in Poland, there have only been a handful of cases and no comprehensive practice has been established yet.

Background

In June 2020, as a reaction to the Covid-19 outbreak, the Polish government introduced a general FDI control regime (alongside the already existing regime applicable only to specifically named companies).

The general FDI control regime applies to direct and non-direct acquisitions of certain interests in Polish companies that are publicly traded or active in one of the specified sectors by non-EU/EEA/OECD investors.

If the transaction is caught by the FDI control regime, it must be cleared by the Polish Office of Competition and Consumer Protection (the "OCCP"). In the event of a failure to notify or execution of a transaction without clearance, the transaction will be considered null and void and the investor will be unable to exercise its rights (including any voting rights) under the shares acquired. Moreover, the investor (or anyone acting on its behalf) may face financial sanctions and criminal penalties.

Application

In 2021 the OCCP conducted 9 FDI control proceedings and issued 3 decisions (compared to 329 merger control proceedings and 300 decisions). These resulted in 2 clearance decisions and 1 decision to discontinue the proceedings. In the remaining cases, the OCCP deemed the transactions non-notifiable. No prohibition decision has been issued so far.

A total of 4 decisions have been published (1 from 2020 and 3 from 2021) concerning investors from the Cayman Islands, China (2 cases) and Egypt. These decisions were in respect of acquisitions of companies active in the following sectors:

• software development for card payments;
• road and rail transport of vehicles, warehousing, and related services (including transhipment in seaports);
• food processing; and
• production of metal components (including for military purposes).

In practice

As the law is quite vague and there are few precedents, there is no well-established practice regarding the notifiability and assessment of transactions.

The OCCP encourages parties to ask preliminary questions and even to notify in situations where there is any doubt as to the law's applicability.

The low number of actual notifications and proceedings may suggest that the obligation to notify and the potential consequences of violations of the FDI control regime could be deterring non-EU/EEA/OECD investors from acquiring significant stakes in Polish entities active in protected sectors. It is also possible that certain investors are interpreting the legislation in a rather narrow way which may exclude a filing requirement. Of course, this is impossible to measure empirically.

Although the general FDI control regime was initially introduced for a temporary period of two years (i.e., until 25 July 2022), we expect that it will soon be extended (although no draft bill has yet been prepared). If this is the case, we would expect that the OCCP will follow the global trend towards tighter FDI scrutiny.