Due to the COVID-19 pandemic, the market value of many companies is dropping. Member States are concerned that such companies could become targets of 'hostile takeovers' by funds and companies form outside the EU.
The Polish government, according to media reports and statements of the Ministry of Economic Development, is working on solutions that are to prevent the takeover of Polish companies by foreign entities (outside of the EEA).
The Ministry of Economic Development indicates that Polish "anti-take-over" provisions are to be modelled on German regulations and provide for two types of action:
-> broadening the catalogue of industries and fields recognized as strategic for the functioning of the State; and
-> introducing the obligation to obtain the consent of the OCCP for the purchase of shares in a company registered in Poland by a fund or a company from outside the EEA.
It is speculated that the catalogue of industries and fields recognized as strategic for the functioning of the State, is to include industries such as logistics, medicine or pharmacy, it is not yet final.
Solutions regarding the approval of the OCCP for the acquisition of Polish companies not operating in strategic industries and fields were to be discussed by the Standing Committee of the Council of Ministers on April 24th, 2020, and the solutions themselves were to be included in the Anti-Crisis Shield 3.0. However, as it turned out, Anti-Crisis Shield 3.0 did not contain solutions that would in any way affect the rules of taking over Polish companies in times of crisis. Thus, the introduction of "anti-take-over" provisions should be expected soon. The bill containing these solutions has not yet been published, however, it is pointed out that the key assumptions are:
-> introducing the obligation to obtain the consent of the OCCP for the acquisition of more than 10% of shares by a non-EEA entity;
-> a six-month deadline for OCCP’s consent;
-> sanctions for the acquisition of shares or stocks without the consent of the OCCP in the form of a prison sentence of up to 5 years or a fine of up to PLN 100 million.
With the above in mind, if you were planning to change the ownership structure of your company in the near future, then you should carefully monitor the work of the Polish government on securing Polish companies against "hostile takeovers", because the solutions that are to be introduced may directly prevent or significantly hinder the planned transaction. Already when introducing the subsidy solutions managed by the PFR, the government wanted to make the granting of support dependent on the Polish tax residency of the beneficial owner of the company applying for the subsidy. Finally, due to the reservations of the European Commission, the provision has been modified and it is sufficient for the ultimate beneficial owner not to have a tax residence in a “non-cooperative tax jurisdiction”. Furthermore, changes in the ownership structure should not affect the subsidy already paid-out.
Our lawyers are constantly monitoring work on new regulations and positions of state bodies. We are ready to answer your questions and provide any explanations. In case of any doubts related to the application of new regulations in connection with the occurrence of COVID-19 and the impact of the epidemic on your activities, we remain at your disposal.
This article is for information purposes only and does not constitute a legal opinion and cannot be considered as providing legal assistance services. The information contained in the article may not constitute the basis for any liability of the law firm or the author of the article in relation to third parties. The law firm can provide legal advice only after becoming familiar with the necessary documentation and specific facts.
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