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Content last updated: 29-08-2019

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  • Merger Control Regime
  • Merger Screening
  • Merger Filing

1. Overall description of merger control regime

1.1 Supranationality

1.1.1 Is the jurisdiction a member of/party to a supranational jurisdiction?

Yes. Poland is a member of the EU, therefore EU regulations apply to Poland.

1.1.2 Is the jurisdiction itself a supranational jurisdiction?

No.

1.1.3 If the answer to Section 1.1.1 and/or 1.1.2 above is in the affirmative, what are the implications hereof?

The EU Merger Regulation is based on a "one-stop-shop" principle. This implies that if the thresholds under EU Merger Regulation are met, the transaction will only have to be notified to the European Commission. Consequently, the transaction will not have to be filed in Poland.

2. Nature of merger control regime

2.1 Mandatory or voluntary

2.1.1 Is filing mandatory or voluntary?

Filing is mandatory, if the thresholds described in Section 2.3.1 under the Merger Screening Schedule below are met.

2.2 Suspensory effect

2.2.1 Must completion of the transaction await clearance by the relevant authorities?

In the case of a concentration that has to be notified to the competition authority, closing of the transaction is prohibited until it is approved (worldwide bar on closing applies).

1. What type of transactions are caught by the merger control regime?

1.1 Concentrations

1.1.1 Type of transactions that are caught by the merger control rules?

The following types of transactions are subject to the notification obligation:

• a merger of two or more independent undertakings;

• one or more undertakings to take direct or indirect control over one or more undertakings, whether by acquisition of stocks, shares or other securities, or otherwise;

• several undertakings to create one joint undertaking; and

• acquisition by an undertaking of a part of another undertaking’s assets.

1.2 Joint ventures

1.2.1 What types of joint ventures are caught by the merger control rules?

The law does not provide for specific requirements in relation to joint ventures. Consequently, both “full-function” as well as “non-full-function” JVs should be notified to the competition authority. Consequently, merger clearance is required regardless of whether a joint-venture will perform all functions of an independent undertaking on a permanent basis or not.

1.3 Definition of "control"

1.3.1 How are the concepts of "control" and "change of control" defined?

‘Control’ is defined as a situation where an undertaking, whether directly or indirectly, has such rights which, in any form, whether individually or jointly and taking into account all legal and factual circumstances, allow it to exercise a decisive influence upon another undertaking or other undertakings.

 ‘Change of control’ can be established by:

• holding directly or indirectly a majority of votes at the shareholder meeting, whether as a shareholder or in the capacity of a pledgee or user, by agreement with other shareholders or holding directly or indirectly a majority of votes on the management board of another undertaking (a subsidiary/dependent undertaking);

• the right to appoint or dismiss a majority of members of the management board or supervisory board of another undertaking, including by agreement with other shareholders;

• the right to appoint or recall the majority of members of the management board or supervisory board of another undertaking (a dependent undertaking), also under agreements with other shareholders;

• holding, directly or indirectly, a majority of votes in a dependent partnership or at the general meeting of a dependent cooperative, including by agreement with other partners;

• the ownership of all or some of the assets of another undertaking; or

• an agreement for the management of another undertaking or transfer of profit by such undertaking.

It is worth noting that the above is not an exhaustive list.

1.4 Minority shareholdings

1.4.1 Are minority and other interests less than control caught by the merger control rules?

The law does not provide for an obligation to notify of a concentration where the acquisition involved is that of a minority or other interest that does not result in a takeover of control. Nevertheless, acquisition of control may also be considered to take place in cases of factual circumstances which eventually lead to a takeover of control, e.g. possession of a substantial number of shares, not giving the right to more than 50% of the votes but which are substantial enough to allow the shareholder to de facto exert control over an undertaking that has a significant fragmentation amongst its shareholders.

2. Establishing jurisdiction for notification of mergers

2.1 Merging parties/undertakings concerned

2.1.1 Which undertakings are considered parties to the merger ("undertakings concerned") in the various types of transactions identified under Section 1.1.1 and 1.2.1.

In a merger, the "undertakings concerned" are each of the merging entities including all entities belonging to the merging entities groups (i.e. parent, subsidiaries, sister companies etc.).

In case of acquisition of control, the undertakings concerned are the buyer’s group consisting of all entities belonging to the same group (i.e. parent, subsidiaries, sister companies etc.) as well as the target and its subsidiaries, but not including the seller.

In case of acquisition of assets of another undertaking, the undertakings concerned are the buyer’s group consisting of all entities belonging to the same group (i.e. parent, subsidiaries, sister companies etc.) as well as the acquired assets.

Undertakings concerned in a concentration establishing a joint venture include the JV’s parents (founding undertakings) as well as other undertakings participating in the groups to which the JV’s parents belong.

2.2 Date for establishing jurisdiction

2.2.1 Which date is relevant for concluding whether the transaction is notifiable?

The law does not provide for a specific deadline as such for the filing of the notification. The ‘intention of concentration’ has to be notified. It means that the notification has to be submitted before the concentration is implemented (i.e. prior to closing).

2.3 General thresholds

2.3.1 Threshold(s) for when a concentration must be notified under the general merger control regime?

An intention of concentration must be notified to the competition authority where:

  • the combined worldwide turnover of undertakings participating in the concentration in the financial year preceding the year of the notification exceeds the equivalent of EUR 1 billion; or
  • the combined turnover of undertakings participating in the concentration in the territory of Poland in the financial year preceding the year of the notification exceeds the equivalent of EUR 50 million.

However, under the de minimis exemption, there is no obligation to notify of a concentration if:

  • in cases of acquisitions, the turnover generated by the undertaking over which the control is to be taken (the target undertaking and its subsidiaries) in the territory of Poland did not exceed the equivalent of EUR 10 million in any of the two financial years preceding the notification;
  • in cases of mergers and joint ventures,  the turnover of none of the undertakings taking part in a merger or the founding of a joint venture exceeded EUR 10 million in the territory of Poland in each of the two financial years preceding the transaction;
  • in cases of acquisitions where there is a simultaneous acquisition of assets, the turnover of the undertaking to be taken over and the turnover generated by the part of assets to be acquired did not exceed EUR 10 million in the territory of Poland in each of the two financial years preceding the transaction;
  • in cases of acquisition of assets, the turnover generated by the assets in any of the two financial years preceding the notification did not exceed EUR 10 million on Polish territory.  

Moreover, the obligation to notify of an intention of concentration does not apply in the following cases:

  • when a financial institution, the normal activities of which include investing in stocks and shares of other undertakings, for its own account or for the account of others, acquires or takes over, on a temporary basis, stocks and shares with a view to reselling them provided that such resale takes place within one year from the date of the acquisition or taking over, and that (i) this institution does not exercise the rights arising from these stocks or shares, except from the right to dividend; or (ii) exercises these rights solely in order to prepare the resale of the entirety or part of the undertaking, its assets, or these stocks and shares
  • when an undertaking acquires or takes over, on a temporary basis, stocks and shares with a view to securing debts, provided that such undertaking does not exercise the rights arising from these stocks or shares, except from the right to sell;
  • the concentration arises as an effect of insolvency proceedings, excluding the cases where the control is to be taken over or the assets are to be acquired by a competitor or a participant of the group to which the competitor of the undertaking to be taken over or whose assets are to be acquired belong; and
  • the concentration applies to undertakings participating in the same capital group.

2.3.2 For each threshold, can the threshold be triggered by only one party having local turnover?

The alternative sets of thresholds can be triggered by only one party having local turnover.

2.3.3 For each threshold, can the threshold be triggered without any party having local turnover?

The thresholds cannot be triggered without at least one of the ”undertakings concerned” (the group to which they belong) having local turnover.

In addition, please see Section 2.5.1 below regarding foreign-to-foreign mergers.

2.3.4 Are there any circumstances where transactions falling below these thresholds may be still investigated?

Transactions falling below the above thresholds may not be investigated by the competition authority.

2.4 Other national thresholds for ex ante merger control (e.g. sector-specific rules)

2.4.1 Relevant thresholds for sector-specific or other ex ante merger control rules?

Not applicable.

2.4.2 Are any such schemes mandatory or voluntary?

Not applicable.

2.5 Foreign-to-foreign mergers

2.5.1 Do any exemptions, special thresholds etc. apply to foreign-to-foreign mergers, i.e. where none of the undertakings concerned is domiciled in the jurisdiction?

There may be situations where foreign-to-foreign transactions will have to be notified to the competition authority. In general, the notification obligation (even with respect to a transaction to be finalized outside the territory of Poland) exists where a concentration causes or may cause effects in the territory of Poland. Although there are no clear guidelines it should be assumed that the condition of the effect in the territory of Poland is fulfilled if at least one of the ”undertakings concerned” (the group to which they belong) achieves its turnover in the territory of Poland.

3. Calculation and allocation of turnover, asset value, transaction value etc.

3.1 Relevant turnover

3.1.1 How is turnover defined (e.g. is income from other sources than "ordinary activities to be included, and how are rebates, taxes, internal turnover etc. treated)?

The relevant turnover to be taken into account is the sum of revenue from sales of products and goods, constituting the operational activity of the undertaking after deduction of granted discounts, abatements and other reductions and value added tax as well as other turnover-related taxes, if they have not been deducted, demonstrated in the profit and loss account drawn up pursuant to the accounting provisions. The sum of revenue is increased by the value of obtained specific subsidies.

3.1.2 Identification and link to any official rules, guidance etc. on how to calculate turnover?

The rules regarding calculating the turnover were laid down in the Regulation of the Council of Ministers of 23 December 2014 concerning the method of calculation of the turnover of undertakings participating in the concentration (the ‘Regulation’).

The Regulation (Polish language version only) can be found on:

http://prawo.sejm.gov.pl/isap.nsf/DocDetails.xsp?id=WDU20150000079

3.2 Relevant period for calculation of turnover

3.2.1 Which financial year(s) is relevant for the calculation of turnover?

In order to verify whether the financial thresholds are met, turnover for the last financial year preceding the transaction is relevant.

However, in order to verify whether any of the de minimis exemptions apply, turnover for the two financial years preceding the transaction is relevant.

Therefore, it is advised to gather turnover figures for two financial years preceding the transaction.

3.2.2 Should adjustments be made for e.g. divestitures, acquisitions, closings and other changes of the economic reality of the undertaking concerned made after or during the relevant financial year?

Adjustments must be made for any divestitures/acquisitions made during/after the latest financial year. Turnover stemming from such divested/acquired assets should be excluded/included.

3.3 Relevant undertakings for the calculation of turnover

3.3.1 The "undertakings concerned", i.e. which parties?

See Section 2.1.1 above.

3.3.2 The undertakings whose turnover is taken into account?

See the definition of the "undertakings concerned" in Section 2.1.1 above.

Please note that the turnover of an undertaking that is jointly controlled by a member of the group of an "undertaking concerned" shall be attributed to such group’s turnover in proportion to its interest in the jointly controlled undertaking.

3.3.3 Shall the turnover of the existing seller be included in the target's group turnover?

No.

3.4 Geographical allocation of turnover

3.4.1 The principles for the geographical allocation of turnover?

In general, the turnover should be allocated geographically based on where the customer was located at the time of the turnover generating transaction, i.e. typically where the goods were actually delivered or services actually provided.

3.5 Valuation and allocation of assets

3.5.1 The principles for valuation and allocation of assets?

Not applicable.

3.6 Calculation of other thresholds

3.6.1 The principles for calculation of metrics for other thresholds (e.g. transaction value, market share, share of supply etc.)?

Not applicable.

3.7 Special rules

3.7.1 Do any special rules or principles apply to the calculation, allocation etc. of turnover, assets etc. for specific undertakings (e.g. State-owned undertakings, investment funds, credit and financial institutions, insurance companies, financial holding companies, others)?

Specific rules apply to the calculation of turnover for the following undertakings:

  • banks;
  • insurers;
  • investment funds;
  • pension funds;
  • brokerage houses;
  • undertakings being natural persons;
  • local government units.

3.7.2 Does any exemptions apply?

Not applicable.

1. Practical information

1.1 Responsibility for filing

1.1.1 The parties responsible for filing?

The intention of concentration should be notified by:

  • the merging undertakings jointly;
  • an undertaking taking over the control;
  • jointly all undertakings participating in the creation of a joint undertaking; or
  • an undertaking acquiring some of the assets of another undertaking.

1.2 Deadlines for filing

1.2.1 Are there any mandatory deadlines for filing, and, if so, how these are calculated?

There are no mandatory deadlines for filing.

However, a transaction meeting the above thresholds has to be notified to the competition authority prior to its implementation. 

1.2.2 Are there any sanctions for not filing within the deadlines?

The law does not provide for a specific deadline as such for the filing of the notification. Nevertheless, if an undertaking has implemented a concentration, even if unintentionally, without the competition authority’s clearance, the law allows the competition authority to fine the undertaking by way of a decision with a fine not to exceed 10 per cent of the turnover earned by the undertaking in the financial year preceding the year in which the fine is imposed. Financial fines on persons holding managerial positions or members of managing bodies of such undertakings if the persons or members have not notified of an intention of concentration are also indicated in the law.

1.3 Early filing

1.3.1 Is it possible to file before the signing of merger agreement?

Notification may be made where the undertakings concerned demonstrate to the competition authority a good faith intention to conclude an agreement. Therefore, a preliminary or conditional merger agreement is submitted together with the filling as an appendix.

1.4 Filing fees

1.4.1 Are there any fees for filing, and, if so, please describe how such fees are calculated?

The fee to be paid for an application in concentration cases currently amounts to 15,000 zlotys (approx. EUR 3,500).

1.4.2 When must the filing fee must be paid?

The filling fee must be paid prior to submitting notification to the competition authority since a proof of payment is a mandatory appendix thereto.

1.5 Publicity

1.5.1 When and in which format will the authority publish receiving a notification?

After receiving notification, the competition authority publishes on its website a basic notice drafted by the notifying party, making a general description of the transaction and the parties involved.

1.5.2 How will the authority in general handle the case publicly, e.g. will it usually comment in the media, send out press releases etc.?

The competition authority will send out a press release following the adoption of a decision. In general, the competition authority will abstain from commenting on active cases in the media.

1.5.3 Will third parties be able to review the notification?

Third parties do not have access to the notification for reviewing.

2. Procedure and timing

2.1 Normal and simplified procedures

2.1.1. Does the regime allow for a simplified (fast track) procedure, and, if so, what are the criteria for using the simplified procedure?

There is no fast-track procedure available in Poland.

2.2 Procedural stages (cf. timetable below)

2.2.1 The various stages of (i) a simplified procedure and (ii) a normal procedure?

There is a two-stage merger review procedure in Poland. Antimonopoly proceedings in non-problematic concentration cases should be finalized within one month from commencement (first stage review), extendable for additional four months (prolonging the duration of the whole procedure to five months in total) if the concentration requires an in-depth review in the second stage. An in-depth review is required when where there is a risk that a significant impediment to competition might occur) or a sector inquiry is undertaken.

2.2.2 Is pre-notification contact with the relevant authorities customary/obligatory/encouraged/etc.?

There are no official pre-notification contacts before the formal submission of the notification. 

2.2.3 Are there any sanctions for not filing within the deadlines?

Not applicable.

2.3 Timetable (cf. timetable below)

2.3.1 The statutory timetable/deadlines for review of a notification?

Antimonopoly proceedings in non-problematic concentration cases should be finalized within one month from commencement (first stage review), potentially extendable by additional four months if the concentration requires an in-depth review in the second stage. Please see also Section 2.2.1 above.

2.3.2 Can the statutory timetable/deadlines be suspended ("stop-the-clock"), and if so under which conditions?

The competition authority is able to stop the clock – in any of the stages – each time it asks questions or requires new data or documents to be provided in the course of the proceedings. The deadline may also be extended if a statement of objections is issued or remedies are being discussed.

2.3.3 If pre-notification with the relevant authorities contact is possible/customary, how long will the duration of such contact usually be?

Not applicable.

3. Format and content of notification

3.1 Notification forms

3.1.1 Must the notifying parties use any mandatory notification forms, e.g. for simplified and normal procedures, and, if relevant, add a link to the relevant forms?

The official filing form (the list of information and documents) as established by way of a regulation of the Council of Ministers is to be found in English on:

 https://www.uokik.gov.pl/competition_protection.php

3.2 Supporting documentation

3.2.1 List of the supporting documentation which must as a minimum be submitted along with the notification?

Cf. checklist below.

3.3 Originals, legalization and apostillation (cf. checklist below)

3.3.1 List of all documents which must be submitted in original/legalized versions and whether any documents must be apostilled?

All documents prepared in foreign languages have to be sworn translated into Polish. Apostille is not required.

In foreign-to-foreign mergers the following documents are the most common to be submitted in original/legalized versions:

  • excerpts from relevant commercial registers for the applicants
  • executed versions of most relevant transaction documents
  • most recent financial statements of the parties concerned
  • structure charts of the parties concerned

It should be added that starting from 2018 the competition authority requests the notifying parties to submit a sworn translation of the entire document governing the concentration (i.e. preliminary agreement, conditional agreement, or a letter of intent). Previously, only most relevant parts needed to be translated.

3.3.2 If the merger regime has a mandatory filing deadline, must all the documents identified under Section 3.3.1 be submitted within this deadline?

Not applicable.

3.4 Language

3.4.1 Which languages may be used for drafting and filing a notification?

The notification can be made in Polish only.

3.4.2 Does translations have to be certified/legalized and apostilled?

Documents prepared in foreign languages have to be sworn translated into Polish. Apostille is not required.

Statutory timetable

Step Description Time
1

Pre-notification

There are no official pre-notification contacts before the formal submission of the notification.

Not applicable.

2

Stage 1

Antimonopoly proceedings in non-problematic concentration cases.

1 month from commencement (first stage review). 

Please be aware that "stop-the-clock" is possible (cf. 2.3.2 above).

3

Stage 2

In-depth review. An in-depth review is required when where there is a risk that a significant impediment to competition might occur or a sector inquiry is undertaken.

Antimonopoly proceedings are extendable for additional 4 months (prolonging the duration of the whole procedure to 5 months in total) if the concentration requires an in-depth review in the second stage. 

Please be aware that "stop-the-clock" is possible (cf. 2.3.2 above).

  • Step 1 1
  • Step 2 2
  • Step 3 3
  • Not applicable
  • 1 month
  • 4 months

Checklist

List of the supporting documentation which must as a minimum be submitted along with the notification.

Supporting documentation

This content was delivered
and last updated on 29-08-2019 by
Contact Person
Aleksander Stawicki, Senior Partner

WKB Wierciński, Kwieciński, Baehr has provided all input about merger control in Poland.

WKB Wierciński, Kwieciński, Baehr is a leading Polish independent law firm advising both domestic and international clients across all areas of business law. We have one of the largest and most experienced teams of competition lawyers in Poland, that is top-ranked in Chambers Europe 2019 (Band 1 in Competition/Antitrust, Aleksander Stawicki and Bartosz Turno ranked Band 1 and Band 2 respectively), The Legal 500 EMEA 2019 (Top Tier in Competition/Antitrust, Aleksander Stawicki and Bartosz Turno listed as "Leading Individuals"). Recognised for its expertise in competition law and antitrust matters and proceedings, the team is regularly involved in high-profile merger control cases in Poland, including several Phase II procedures. Team members have co-authored, among others, two editions of the ‘Commentary on the Competition and Consumer Protection Act’.

For more information about WKB Wierciński, Kwieciński, Baehr and merger control in Poland, please contact our Partner directly.

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