Legislation introducing FDI screening in Poland

AmCham is still involved in the initiative which regards the legislation process of introducing FDI screening in Poland. Currently, the Council of Ministers approved the draft of amendments to the Act of 24 July, 2015 on the control of certain investments. On May 22^nd, the draft law has been referred to the Parliament and will be proceeding during the Sejm’s next session scheduled for May 27-29.

The new draft law takes into account AmCham’s postulates in comparison with the previous version of April 28:

• The threshold of investments that are subject to notification to the President of the Office of Competition and Consumer Protection is higher (now 20% of votes, equity shares of profit shares, previously 10%);
• Fines for breach of the proposed law (i.e. acquisition or gaining a significant interest or dominant position without submitting the notification to the President of the Office of Competition and Consumer Protection) is lower, now up to PLN 50,000,000 (previously up to PLN 100,000,000);
• The proceeding before the President of the Office of Competition and Consumer Protection is shorter and can last up to 210 days (previously 240 days). 

Nevertheless, AmCham has still concerns regarding the draft law e.g. 

• The President of the Office of Competition and Consumer Protection will still be able to artificially extend the proceedings with additional requests for information or documents, because of stopping the clock mechanism;
• Fines foreseen in the draft law are still extremely high. Additionally, breach of the law is still subject to imprisonment from 6 months up to 5 years, or both penalties (i.e. fine and imprisonment) jointly. In the context of the imprecise legal provisions in the draft law causing doubts about its applicability, the proposed penalties bear the risk of reporting every transaction involving U.S. companies to the President of the Office of Competition and Consumer Protection; 
• The draft law still includes the criterion of “any potential risk” as justification for the objection decision which is unprecise and could be anything up to an individual’s interpretation;
• It affects all EU subsidiaries, which in practice means that a U.S. company with significant business in Europe cannot acquire shares/stocks of a Polish company through its EU subsidiary without the prior consent of the President of the Office of Competition and Consumer Protection;
• The list of “protected companies” hasn’t changed and is still extensive and goes beyond businesses being essential to public health, national security, and critical infrastructure. 

AmCham presented its position paper on the draft law’s new version to the Sejm, Senate, and President of the Competition and Consumer Protection Office in Poland. On Wednesday, May 27^th, AmCham will also hold an online meeting with the President of the Office of Competition and Consumer Protection, Mr. Tomasz Chróstny, which will be dedicated mostly to the draft law.

View AmCham position paper on the amendments to the Act on the control of certain investments here