General antitrust clearances:
The following operations constitute concentration and require the prior notification of the President of the Office of Competition and Consumer Protection:
- merger of two or more entrepreneurs,
- aquisition of shares leading to the direct or indirect control of an entity,
- creating a new entity (e.g. a company, a partnership) by two or more entrepreneurs,
- aquisition of assets (in particular an ongoing business or a part of an ongoing business) which in the 2 years preceding the notification has generated the turnover of at least Euro 10 million within the territory of Poland.
The abovementioned operations are subject to the clearance procedure only if:
- the aggregated worldwide turnover of the parties in the year preceding the application exceeded EUR 1 billion or
- the aggregated turnover of the parties within the territory of Poland in the year preceding the application exceeded EUR 50 million.
The clearance procedure is not required if:
- the turnover within the territory of Poland of the target of the acquisition or of any of the parties of the merger of the creation of the new entity in any of the two financial years preceding the transaction did not exceed EUR 10 million,
- the acquisition takes place within the insolvency proceedings (with some exceptions)
- if the merger concerns companies belonging to the same capital group.
The President of the Office of Competition and Consumer Protection may oppose to the concentration if it leads to a significant restriction of competition. To this end the President issues an administrative decision.
The President can also clear the concentration subject to fulfillment of some additional terms and conditions, e.g. resale of a part of assets, licensing exclusive rights to a competitor. Moreover, the President will give consent for the concentraation that leads to a significant weakening of competition if it contributes to economic development or technical progress or has a favorable impact on the economy.
The decisions of the President of the Office of Competition and Consumer Protection are subject to appeal and control by the civil court.
The general antitrust clearance in Poland is independent from the antitrust clearance at the European Union level according to the rules unified for all EU Member States.
Strategic industries : In case of the strategic sectors the investors are obliged to give prior notification to (a) the relevant Ministry (in cases stated in point I above) or to the President of the Office of Competition and Consumer Protection (in cases stated in point II above) about planned transaction that results in acquisition of:
- dominant position (e.g. acquisition of shares which give at least 50% of votes in the corporate bodies of the controlled company, authorization to appoint or revoke the majority of members of the management or supervisory body of the controlled company) or
- significant participation(acquisition of shares which give at least 20% of votes at the General Meeting of Shareholders, at least 20% of shares in a partnership or participating in the profit of any other entity in at least 20%).
The Minister and the President of the Office of Competition and Consumer Protection may oppose to the transaction, through an administrative decision if there is at least potential threat for public safety, public order or public health in Poland.
The trasanction conducted without the prior notification to the President or/ the Ministry is null and void. It also gives raise to the severe financial sanctions which may be imposed by the President.
Real estate: The transfer of agricultural land having the surface exceeding 1 ha to a non-farmer requires the consent of the State, through an administrative decision. If the surface does not exceed 1 ha then the consent for the transfer is not required but the State has a right of first refusal with respect to such land. These rules do not apply to the real estate situated in the cities. Similar limitations apply to acquisition of shares in companies and partnerships which own agricultural land.