1) Is a merger control regulation in force?

Yes. Merger control provisions are contained in Section 3 of the Act of 16 February 2007 on Competition and Consumer Protection (Journal of Laws of 2019, item 369) (the “Polish Act on Competition”). Definitions contained in Section 1 of the Polish Act on Competition also apply to the merger control provisions. 

2) Which authorities enforce the merger control regulation?

The President of the Office of Competition and Consumer Protection (the “OCCP”) is the authority responsible for the enforcement of the Polish Act on Competition, including the merger control provisions contained therein. For more information see the OCCP’s official website: https://www.uokik.gov.pl/home.php.

Merger decisions are issued by the OCCP.

Decisions of the OCCP may be appealed to the Regional Court in Warsaw – the Court of Competition and Consumer Protection – as the court of first instance. The judgments of the Court of Competition and Consumer Protection may be appealed to the Court of Appeal in Warsaw.

3) Relevant regulations and guidelines with links:

The merger control provisions are contained in Section 3 of the Polish Act on Competition. More detailed rules may be found in various executive ordinances. Links to the relevant legislation, guidelines and forms are listed here:

4) Does general competition regulation apply to mergers or ancillary restrictions?

The merger control provisions do not apply to restrictions of competition that are ancillary to mergers, for instance a standard non-competition obligation on the seller. Those restrictions are not considered inherent parts of the merger and as such are not assessed by the OCCP in the merger proceedings. Therefore, the OCCP’s clearance decision does not cover the potentially anticompetitive provisions of contracts linked to the merger. As a result, in principle, a change of certain contract provisions will not be one of the conditions for the OCCP to issue a clearance decision. Those provisions may thus be subject to separate scrutiny under the general competition regulation under the Polish Act on Competition. 

5) May an authority order a split-up of a business irrespective of a merger?

No.

6) Other authorities that also require merger filing or may prohibit transaction
(Note that this may not be an exhaustive list and that industry-specific legislation should always be considered. Furthermore, a merger will often require change of registrations with – but not approval from – the companies register, land register and authorities that have issued permits for the activities of the merging parties.)

Strategic sectors

According to the Act of Control of Certain Investments (Journal of Laws of 2017, item 1857), investors seeking to acquire or achieve significant participation or dominance over a company which is subject to protection are required to notify the controlling body, i.e. a competent minister (the Minister of energy, Minister of entrepreneurship and technology, Minister of national defence or Minister of maritime economy and inland navigation) about the contemplated transaction. The secondary legislation – the Ordinance of the Council of Ministers of 27 December 2018 – contains the list of entities which are subject to protection. The transaction may be implemented provided that the relevant controlling body does not raise objections to the transaction.  

Agricultural property

According to the Act on Shaping the Agricultural System (Journal of Laws of 2018, item 1405), the consent of the President of the National Agricultural Support Centre is required for the purchase of companies holding agricultural property (subject to statutory exceptions).

Financial entities

Where the target is a financial entity such as a bank, the merger may require the approval of the Polish Financial Supervision Authority.

Foreign investment control

The Polish government introduced stricter FDI rules due to the Covid-19 pandemic, which have taken effect on 24 July 2020 and will apply for 24 months from that date. The FDI regime has already existed in Poland since 24 July 2015, however before its extension it applied to specifically enumerated companies, as included in the Regulation of the Council of Ministers that is reviewed on the yearly basis. Based on the list for 2021, there are eleven protected Polish companies (mostly from energy and telecom sectors), and the supervision is exercised by the relevant Minister.

In turn, the extended control of acquisitions (as introduced in 2020) is exercised by the President of the Office of Competition and Consumer Protection (the POCCP). The control will consider the events when a natural person, who is not a citizen of an EU/EEA/OECD Member State, or an undertaking, that does not have or has not had its seat within an EU/EEA/OECD Member State for at least two years before the day preceding the date of notification (date of signing the SPA agreement to be used as a proxy), acquires a “protected undertaking”, achieves a significant participation in a protected undertaking or becomes a dominant entity of a protected undertaking (the Controlled Events). This will also include indirect or secondary acquisitions, where the Controlled Event is exercised by the subsidiary, or cases where the transaction results in obtaining a significant participation/dominant status in a protected undertaking (indirect acquisitions). In relation to secondary acquisitions, the Controlled Event may result for instance: (1) from redeeming/acquiring shares of the protected undertaking, (2) demerger/merger of the protected undertaking, (3) amending the articles of association or the statutes of a protected undertaking with respect to the preference for the shares, a share in the profits, establishing, changing or abolishing any rights vested in the individual shareholders or participants of such undertaking.

The “protected undertaking” is defined as an undertaking which, as at the date when one of the Controlled Events occurs, satisfies at least one of the following criteria, and whose profits generated in Poland from the sale of products and the provision of services in any of the two financial years preceding the notification exceeded the equivalent of EUR 10,000,000:

• is a public company in Poland; or
• holds assets in Poland comprising the critical infrastructure (information on what includes the critical infrastructure amounts to classified information that is only known to the entities in question and the relevant authorities); or
• is an undertaking carrying on business activity in strategic sectors  in Poland listed in the extended FDI regime , e.g. . related to development or modification of software used to provide certain public services (e.g. systems used in public transport, hospitals, food supply), storing and processing data or related to managing natural resources, transhipment, telecommunication services, energy sector, manufacturing of medical equipment and pharmaceutical products, as well as processing meat, milk, cereals, fruit and vegetables.

Before one of the Controlled Events can be conducted, the natural person or the undertaking should submit a notification to the POCCP of his/her/its intention to conduct the Controlled Event, unless such obligation lies with other persons or undertakings (in cases of indirect or secondary acquisition). The POCCP might then object to the Controlled Event i.e. when the intended Controlled Event involves at least a potential threat to the public order, public safety, or public health in Poland.

The review process is divided into two phases. Within 30 business days following the receipt of a request for authorisation, the POCCP will either (i) declare that no authorisation is required; (ii) grant authorisation; or (iii) open an extended review period to determine whether conditions are required to protect national interests. In case of an extended review, the POCCP has additional 120 days to clear the investment or prohibit it.  If no decision is issued by that deadline, the investment is deemed to be authorised.

The purchaser must refrain from completing the notified transaction until the lapse of the deadline for granting the authorization. Conducting one of the Controlled Events without prior notification or in spite of an objection will be invalid. No right can be exercised (except from the right to sell) from shares or stocks of the protected undertaking, acquired without the required authorisation or despite the prohibition decision. (This applies also to transactions concluded under foreign laws to which the consequence of invalidity could not be applied directly). Similarly, the resolutions of the general shareholders meeting of such protected undertaking are invalid, unless the quorum and the majority thresholds would be achieved irrespective of the invalid votes. 

A person or an undertaking conducting one of the Controlled Events without prior notification shall be subject to a fine of up to PLN 50,000,000 (EUR 11.6m/USD 13.9m) or imprisonment for between 6 months and 5 years, or both these penalties, which shall also apply to the persons who commit such an act while acting on behalf and for or in the interest of a legal person or an incorporated entity.

7) Are any parts of the territory exempted or covered by particular regulation?

Companies which aim to operate within the Special Economic Zone (the designated area of Poland in which economic activity may be conducted on preferential terms) are required to obtain a special permit in accordance with the Act of 20 October 1994 on Special Economic Zones (Journal of Laws of 2019, item 482). 

8) Is merger filing mandatory or voluntary?

Merger filing is mandatory, provided that the turnover thresholds are met.

9) Is there a general definition of transactions subject to merger control?

Yes, according to the merger control provisions, a merger subject to merger control is defined as a transaction whereby:

1. two or more previously independent undertakings merge into one undertaking;
2. one or more undertakings take over, by acquiring or taking up stocks, other securities or shares, or otherwise, direct or indirect control over one or more undertakings;
3. two or more undertakings establish a joint venture;
4. one undertaking acquires some assets of another undertaking.

With respect to point 3) above, note that both full-function and non full-function joint ventures are caught by the Polish merger control regime. 

Furthermore, certain transactions of a temporary nature are exempted from the merger filing obligation (see topics 19 and 20).

10) Is "change of control" of a business required?

Generally a merger will only be considered to take place if the transaction results in a change of control over a business.

However, transactions that result in the establishment of a joint undertaking, even if none of its parents will have (joint or sole) control over it, also constitute a merger (a joint venture creation). Furthermore, acquisitions of the assets of another undertaking also require a merger filing with the OCCP (if the turnover thresholds are met).

11) How is “control” defined?

Under the merger control provisions, acquisition of control means any direct or indirect acquisition of rights by an undertaking which, individually or jointly, enable this undertaking to exert a decisive influence on another undertaking. The Polish Act on Competition lists a number of examples which may constitute control:

1. either directly or indirectly holding a majority of votes in the shareholders’ meeting or the general meeting (also as a pledgee or user) or in a management board (also on the basis of agreements with other persons/entities);
2. having the right to appoint or dismiss a majority of members of the management board or supervisory board of another undertaking (also on the basis of agreements with other persons/entities);
3. the fact that members of an undertaking’s management board or supervisory board constitute more than 50% of the members of another undertaking’s management board;
4. either directly or indirectly holding a majority of votes in a dependent partnership or at a dependent cooperative’s general meeting (also on the basis of agreements with other persons/entities);
5. holding a title to all or some of the assets of another undertaking;
6. having an agreement which envisages managing another undertaking or transferring its profits.

The above list is not exhaustive and each situation should be assessed on a case-by-case basis.

Control may be held by one or more persons or businesses jointly. Changes in the group of owners with a controlling interest constitute a change of control. Consequently, there is a change of control when a business goes from 50/50 ownership to being solely controlled by only one of the existing owners or vice versa, and when one of the existing owners sells its shares to a third party.

Joint control between a majority and a minority shareholder may be established on the basis of veto rights regarding decisions that are essential for the strategic operation of the business. A merger will occur both when the joint control is established and again when it is terminated, for instance if a minority shareholder gives up certain essential veto rights so that the majority shareholder gains sole control. 

12) Acquisition of a minority interest

Acquisition of a minority interest that does not result in any undertaking gaining control over a business does not trigger a merger filing unless this acquisition can be qualified as a creation of a joint venture.

In addition, if an acquisition of a minority interest gives someone de facto control of a business, the transaction will be subject to merger control. This is, for instance, the case if the buyer is provided with veto rights regarding decisions that are essential to the strategic operation of the business or if the remaining shares are spread over a large number of shareholders and the acquired shares de factoconfer the buyer with a decisive influence at general meetings.

13) Joint ventures/joint control – which transactions constitute mergers?

All of the following situations require merger filing if the thresholds are exceeded: 

1. creation of a joint venture from scratch; 
2. creation of a new undertaking by one JV parent, followed by (an)other JV parent(s) taking up shares in that undertaking; and 
3. creation of a joint venture on the basis of an already existing company within the capital group of one of the JV parents, can be qualified as a creation of a joint venture under merger control provisions. 

Please note that in some cases, especially in transactions described under point (3) above, it may not be entirely clear whether a transaction should be qualified as a creation of a joint venture or as an acquisition of joint control/change from sole to joint control. That qualification may have an impact on the filing obligation (see the de minimis threshold in topic 14). Therefore, such transactions should be reviewed individually, on a case-by-case basis.

There is no requirement for the joint venture to be full-function. There is also no requirement for the joint venture to be jointly controlled. Consequently, if the thresholds are met, a creation of a joint venture must be notified, regardless of the full functionality or the existence of joint control.

14) Which thresholds decide whether a merger notification must be filed?
(Unless explicitly stated otherwise, the thresholds described under one threshold category are not cumulative with those described under another category. Thus for instance if there is a market share threshold and a turnover threshold, it is sufficient to meet one of these, unless stated otherwise.)

a) Turnover thresholds

A merger notification must be filed if:

1. the combined worldwide turnover of all the undertakings involved in the financial year preceding the year of the notification exceeds EUR 1 billion; or 
2. the combined Polish turnover of all the undertakings involved in the financial year preceding the year of the notification exceeds EUR 50 million.

It is important to note that under the de minimis exemption, even if either of the above thresholds are met, there is no obligation to notify a transaction if:

1. in the case of an acquisition of control, the Polish turnover of the target and its subsidiaries did not exceed the equivalent of EUR 10 million in either of the two financial years preceding the notification;
2. in the case of an acquisition of assets, the Polish turnover generated by the acquired assets did not exceed the equivalent of EUR 10 million in either of the two financial years preceding the notification;
3. in the case of a merger and joint venture creation, the Polish turnover of none of the participants to a merger or joint venture exceed the equivalent of EUR 10 million in either of the two financial years preceding the notification; or
4. in the case of a combined acquisition of control and acquisition of assets, the combined (i) Polish turnover of the target and its subsidiaries and (ii) Polish turnover generated by the acquired assets did not exceed the equivalent of EUR 10 million in either of the two financial years preceding the transaction.

Certain other types of transactions discussed in topic 20 are also exempted from the obligation to notify.

b) Market share thresholds

N/A.

c) Value of transaction thresholds

N/A.

d) Assets requirements

N/A.

e) Other

N/A.

15) Special thresholds for particular businesses

The thresholds stated in topic 14 apply to all transactions. However, in topic 20 there is a list of situations where the thresholds are met but the transaction does not need to be notified.

16) Rules on calculation and geographical allocation of turnover

Rules on the calculation and geographical allocation of turnover are contained in the Ordinance of the Council of Ministers of 23 December 2014 concerning the method of calculation of the turnover of undertakings participating in the concentration and the Guidelines on the criteria and procedure for notifying the intention of a concentration to the OCCP of 2015.

Turnover of undertakings participating in merger is calculated separately for each participating undertaking as the sum of revenue from the sale of products, goods and materials, constituting the operational activity of undertakings, after deduction of discounts, other reductions and VAT as well as other turnover-related taxes included in the profit and loss statement, if they have not been deducted. The turnover taken into account for the purpose of the Polish merger control review concerns the previous financial year, which may differ from the calendar year.

The turnover defined as above for each participating undertaking includes any direct or indirect parent companies, subsidiaries, jointly controlled undertakings and subsidiaries of parent companies. The turnover of undertakings controlled jointly with third parties must be allocated on a pro rata basis (if the shares in a jointly controlled undertaking are divided 60/40 between two entities who exert joint control, half of the turnover of that joint undertaking must be attributed to each entity). The same principle applies to the turnover of undertakings that exercise joint control over a capital group participating in the merger: the turnover of such undertakings should be taken into account pro rata to the number of undertakings that jointly control that capital group. 

The turnover should be calculated on the basis of the actual composition of the capital groups and jointly controlled/controlling entities of participating undertakings. If there have been any disposals or acquisitions (of businesses or assets) or closure of part of a business since the end of the last audited accounts, it is necessary to adjust the turnover so it reflects only those businesses/assets which, at the day of the merger notification, belong to the capital groups of undertakings participating in the merger.  

The turnover generated from sales within the capital groups is generally not included.

For the purposes of calculating the relevant turnover of the target in a transaction qualified as an acquisition of control, there are special rules regarding intra-group turnover: 

1. internal sales within the target must be excluded (i.e. the turnover between the target and its subsidiaries or between different subsidiaries of the target); but 
2. the turnover generated by the target from sales to the seller’s group must be included.

The turnover from products and services sold to customers who are located in Poland is considered Polish turnover. This turnover excludes revenue from the export of goods or services and includes revenue from imports into Poland.

17) Special rules on calculation of turnover for particular businesses

Special rules on turnover calculation apply to banks, insurance companies, investment funds, pension funds brokerage houses, natural persons and local government units.

Banks

For banks, turnover is the sum of amounts provided under the following items of the profit and loss statement:

1. interest income;
2. commission income;
3. revenue from stocks, shares and other securities;
4. the sum of the result on financial operations and foreign exchange result, if positive - drawn up pursuant to the accounting provisions for banks, after deduction of any potential value added tax related to these items, if not already deducted.

Insurance companies

The turnover is the sum of gross premiums written in the financial year, demonstrated in the technical account of insurance, drawn up pursuant to the accounting provisions for insurance companies.

Investment funds

The turnover is the amount equal to the net asset value of the fund determined as at the end of the financial year, drawn up pursuant to the accounting provisions for investment funds.

Pension funds

The turnover is the amount equal to the net asset value of the fund determined as at the end of the financial year, drawn up pursuant to the provisions on the organisation and operation of pension funds and the accounting provisions for pension funds.

Brokerage houses 

Turnover is the sum of revenue from brokerage activities reported in the profit and loss statement for the financial year, drawn up pursuant to the accounting provisions for brokerage houses.

Undertakings being natural persons

In case of a natural person that does not draw up the profit and loss statement pursuant to the accounting provisions, the turnover of such persons is the sum of revenues generated from the business activity in the financial year from the sale of products, goods and materials after deduction of granted discounts and other reductions and the value added tax as well as other turnover-related taxes, if they have not been deducted. Turnover covers the turnover from the business activity carried out by that natural person and the turnover of undertakings controlled by that person.

Local government units 

Turnover is the income obtained by the budgetary units of communes (pl. gmina), poviats and voivodeships and contributions from the budgetary entities of local government units.

18) Series of transactions that must be treated as one transaction

A series of acquisitions (of control or assets or both) between the same capital groups which take place during a two-year period is considered as a single transaction for the purpose of calculating turnover thresholds. There is no requirement for these acquisitions to be interrelated. 

Furthermore, multi-stage transactions (which involve a merely temporary stage, for example an acquisition of joint control preceding an acquisition of sole control) can be treated as a single transaction in which only the last stage requires a merger filing. The temporary stage should in principle not exceed two years.

See also topic 19 regarding temporary control.

19) Temporary change of control

Polish merger control provisions do not envisage a requirement for a change of control on a lasting basis. Therefore, even a temporary change of control may require a merger filing.

However, as provided in topic 18, in multi-stage transactions (which involve a temporary stage, for example an acquisition of joint control preceding an acquisition of sole control) the temporary stage does not have to be notified as only the last stage requires a merger filing.

Further exemptions from a filing obligation based on a temporary change of control are described in topic 20.

20) Special industries, owners or types of transactions

The Polish Act on Competition specifies that there is no obligation to file a merger notification in the following situations:

1. where a financial institution whose normal activities include investing in the stocks or shares of other undertakings, for its own account or for the account of others, acquires, on a temporary basis, stocks or shares to resell them, provided that such resale takes place within one year from the date of that acquisition, and the financial institution: a) does not exercise the rights arising from these stocks or shares (save for the right to a dividend), b) exercises these rights only to prepare for the resale of the whole or part of the undertaking, its assets, or these stocks or shares;
2. where an undertaking acquires, on a temporary basis, stocks or shares to secure debts, provided that such undertaking does not exercise the rights arising from these stocks or shares, except for the right to sell them;
3. where the merger takes place in the course of insolvency proceedings, excluding cases where the control or assets is to be acquired by a competitor or an undertaking from a competitor’s capital group;
4. where the transaction takes place between undertakings that belong to the same capital group.

21) Transactions involving only foreign businesses (foreign-to-foreign)

There is no exemption for foreign-to-foreign transactions. Under the Polish Act on Competition, the notification obligation arises where a concentration causes or may cause an effect on the Polish market and where the turnover thresholds are met. 

The Guidelines on the criteria and procedure for notifying the intention of a concentration to the OCCP state that a transaction is considered to have an effect in Poland if at least one of the parties (capital groups involved) generates turnover in Poland. Therefore the possibility of applying the "effects doctrine" is in practice very limited. 

22) No overlap of activities of the parties

There is no exemption for transactions with no overlap of activities. If the turnover thresholds are met, the transaction needs to be notified. 

23) Other exemptions from notification duty even if thresholds ARE met?

As a consequence of the EU "one-stop-shop" principle, merger control provisions do not apply if the thresholds for EU merger control are exceeded and the European Commission has not referred the merger to the OCCP.

24) May a merging party file voluntarily even if the thresholds are not exceeded?

No, the OCCP will only handle a merger notification if the thresholds are met or if a referral from the European Commission allows it to handle the notification.

25) May the competition authority request a merger notification or oppose a transaction even if thresholds are not met?

Only in the case of a referral from the European Commission.

26) Referral within the jurisdiction

The OCCP is the only authority responsible for merger control. Thus, there are no referrals within Poland.

27) Referral from another jurisdiction

The OCCP cannot handle mergers based on referrals from other jurisdictions, except referrals from the European Commission.

The European Commission may refer a merger or a part of a merger to the OCCP. In that case, the OCCP may handle the merger even if the thresholds for merger notification in Poland are not exceeded. In the case of a partial referral, the European Commission will handle certain (international) aspects of the merger, whereas the OCCP will handle the strictly Polish aspects.

A referral of a merger from the European Commission may be requested either by the OCCP (on its own initiative or upon the invitation of the European Commission) or by the merging parties.

28) Referral to another jurisdiction

If the thresholds for merger notification are met in at least three EU member states, the parties may request that a single merger notification is made to the European Commission in place of notifications to each of the relevant national authorities (see topic 29).

The OCCP may also request the European Commission to examine a merger that does not have an EU dimension within the meaning of Article 1 of the EU Merger Regulation (No. 139/2004) but which affects trade between EU member states and threatens to significantly affect competition in Poland. Such a request shall be made within 15 working days of the date on which the merger was notified to the OCCP. The European Commission shall immediately notify the other EU member states of the request and will decide whether to examine the merger within 25 working days after this notification.

Besides referral to the European Commission, a merger cannot be referred to the competition authorities in other jurisdictions.

29) May the merging parties request or oppose a referral decision?

Referral to the OCCP
If a merger is subject to EU merger control, the parties may – prior to an EU merger notification – request that the merger is referred to the OCCP, provided that the merger may significantly affect competition in a distinct market in Poland. If the OCCP does not oppose such a referral, the European Commission may decide to refer the merger in whole or in part.

The European Commission must decide whether to refer a merger within 25 working days of receipt of the request (reasoned submission).

The European Commission may also, on its own initiative or upon request from the OCCP, decide to refer a merger that has already been notified to the European Commission to the OCCP. Such a referral decision must be taken within 65 working days after the merger notification has been filed. The merging parties cannot oppose such a referral decision.

Referral from the OCCP
If a merger is not subject to EU merger control but is subject to merger control in Poland and in at least two other EU member states, the parties may request that a single merger notification is made to the European Commission in place of notifications to each of the relevant national authorities in the EU. If none of the relevant authorities opposes the referral, the European Commission will handle the merger notification and no notifications are needed in Poland or any other EU member state. If any of the national authorities in question oppose the referral within 15 working days, the merger must be notified to each of the relevant national authorities.

30) Stage of transaction when notification must be filed

A merger filing can be made as soon as the notifying party is able to show sufficient evidence of its intention to enter the transaction, e.g. by a letter of intent or a preliminary share purchase agreement. There is no deadline for notification but the transaction may not be implemented before the merger has been approved by the OCCP.

31) Pre-notification consultations

There is no official pre-notification phase. In some cases, the parties may consider engaging with the OCCP in informal pre-notification consultations. However, the deadline for the OCCP to issue a merger decision will start to run only after the formal submission. 

32) Special rules on timing of notification in case of public takeover bids and acquisitions on stock exchanges

An acquisition of securities on a stock exchange as a result of a public takeover bid may be implemented before the OCCP’s approval has been obtained, provided that the merger is immediately notified to the OCCP and that the acquirer does not exercise the voting rights arising from the acquired stocks or exercises them only to maintain the full value of its capital investment or to prevent substantial damage that might affect the undertakings participating in the merger.

33) Forms available for completing a notification

There is no simplified notification form available in Poland. In all the cases a full notification is required. However, if a transaction does not involve any affected markets, the parties do not have to fill in two (out of nine) sections of the merger filing form concerning very detailed market information.

34) Languages that may be applied in notifications and communication

Both the notification and all communication with the OCCP should be in Polish. All documents originally prepared in another language must be accompanied by their certified translation into Polish.

35) Documents that must be supplied with notification

The following documents should always be supplied with a merger notification:

1. confirmation of the payment of the filing fee;
2. a power of attorney and the confirmation of the payment of the stamp duty for the power of attorney;
3. a current excerpt from the commercial register for the notifying party;
4. signed agreements or other documents sufficiently evidencing the intention to enter the transaction;
5. in the case of a public takeover bid – a prospectus or bid or documents equivalent to such prospectus or bid;
6. approved annual financial statements of the undertakings involved in the merger for the last financial year preceding the year of notification (including, in particular, the balance sheet, profit and loss statement, cash flow statement and a statement of changes in equity); undertakings that prepare consolidated financial statements should provide their consolidated statements (if the financial statement for the last financial year is not available, the undertaking should provide reliable estimates of its financial results for the last financial year and explain why it is unable to provide the relevant financial statement);
7. group chart/overview for each of the parties (capital groups) to the merger; and
8. a non-confidential version of the notification.

If a transaction involves affected markets, a range of further documents may be required, including analyses, reports, minutes of board meetings and similar documents relating to the merger.

36) Filing fees

The filing fee is PLN 15,000 (approx. EUR 3,525), regardless of the degree of the filing’s complexity.

37) Is implementation of the merger before approval prohibited?

Yes. The merging businesses must be run separately and independently until the merger has been approved. However, normal preparatory reversible steps are not prohibited, as long as they are conducted in compliance with the general competition rules, i.e. concerning gun-jumping, information sharing, etc.

38) May the parties get permission to implement before approval?

Only the acquisition of shares as a result of a public takeover bid may be implemented (under certain conditions) before the OCCP’s approval has been obtained (see topic 32).

39) Due diligence and other preparatory steps

There are no specific rules or guidelines published by the OCCP in that regard. An explicit exemption is not required for standard due diligence and other preparation measures without effect on the market. However, due diligence and preparatory steps should be conducted in compliance with the general competition rules, i.e. concerning gun-jumping, information sharing, etc.

40) Veto rights before closing and "Ordinary course of business" clauses

An "ordinary course of business" clause that prevents the target company from taking decisions outside the course of its ordinary business until the closing date, similar to the clauses aimed at protecting the rights of minority shareholders under general provisions of commercial law, is generally considered acceptable. 

However, there must be a case-by-case assessment of the extent to which the parties may discuss – or provide each other with veto rights concerning – any decisions in their respective businesses.

41) Implementation outside the jurisdiction before approval – "Carve out"

There are no specific rules on the “carve out” of the Polish part of a transaction to avoid delaying implementation in the rest of the world while approval is pending in Poland.

It must be assessed on a case-by-case basis whether it is possible to carve out the Polish part of a transaction. 

42) Consequences of implementing without approval/permission

The parties may be fined if they fail to notify the merger or the merger is implemented before the approval is obtained. The amount of the fine will be fixed based on the nature, gravity and duration of the infringement and the fine cannot exceed 10% of the turnovers of the entities obliged to notify the merger (not their entire groups). The fines of up to the equivalent of 50 average monthly salaries in Poland may also be imposed on the managers of such undertakings.

Notwithstanding the above, the OCCP can also impose other sanctions, such as a demerger or divestment of the acquired assets or undertakings or any other measures necessary to restore efficient competition.

43) Phases and deadlines

Under the Polish merger regime there is no fast-track procedure.

44) Tests or criteria applied when a merger is assessed

The OCCP assesses in particular whether the merger will “result in a significant impediment to competition on the market, in particular by the creation or strengthening of a dominant position on the market”.

45) May any non-competition issues be considered?

No.

46) Special tests or criteria applicable for joint ventures

The assessment process for joint ventures is the same as for other mergers.

As indicated in topic 13, both full-function and non full-function joint ventures are caught by the Polish merger regime.

47) Decisions and remedies/commitments available

A merger may be approved, approved with conditions/commitments or prohibited.

The OCCP will normally only consider an approval with conditions if the parties have offered commitments or agreed to the commitments proposed by the OCCP.

Commitments may take any form and can be either structural or behavioural and with time limitations.

The OCCP may revoke an approval if it becomes aware that its decision was based on incorrect or misleading information or if the parties do not comply with the conditions/commitments contained in the approval. If a merger has been implemented and restoring competition is not possible in any other way, the OCCP may in particular order a demerger or divestment of acquired assets or undertakings. That decision cannot be issued after the lapse of five years of the implementation of the merger.

48) How and when will details about the merger be published?

The OCCP will publish information on its website up to a few days after it receives a merger notification (information on the parties together with a brief description of the merger of a maximum of 500 words) and again when a decision has been taken (the non-confidential version of the decision will be available on the OCCP’s website). The OCCP also often publishes a brief announcement on its website after it decides to open a Phase II investigation.

The merger notification itself will not be published.

To protect business secrets, the parties are requested to identify any confidential information in the merger notification and in all their further submissions. Based on that information, the OCCP identifies any confidential information in the final decision and prepares a non-confidential version of the decision.

Furthermore, in conditional decisions, the undertakings concerned can request the OCCP not to disclose the deadline for meeting the conditions stated in the decision. However, this is only for the period leading up to the expiry of the time limit for meeting them.

49) Access to the file for the merging parties and third parties

The merging parties:

The notifying party has a right to access the file, which includes any correspondence with third parties that the OCCP may have had, including market investigation questionnaires as well as all other documents/correspondence in the file. However, the notifying party has access only to the non-confidential versions of the third parties’ submissions. There is no right of access to the OCCP’s internal documents or correspondence.

If there are more parties to the proceedings (more than one notifying party), the OCCP may, on an ex officio basis or upon a request from the undertaking concerned, limit the access to some of the confidential information of the other parties. 

The passive participants (i.e. the target company to be acquired) to the merger do not have a right to access the file.

Third parties:

Third parties do not have access to the file, but they may nonetheless request some limited non-confidential information under the rules of access to public information.

50) Who can appeal and what may be appealed?

The notifying party can generally appeal any decisions of the OCCP, including conditions contained in an approval decision – even if they are based on commitments suggested by the parties themselves. However, the parties cannot appeal the decision to open a Phase II merger investigation.

The appeal against the decision must be lodged within one month from the date when the decision is served to the notifying party. The judgment of the Court of Competition and Consumer Protection as the court of first instance can be further appealed to the Court of Appeal in Warsaw. Judgments of the Court of Appeal in Warsaw may be subject to an extraordinary cassation appeal to the Supreme Court.

Third parties and passive participants to the merger (those that are not the notifying parties) are not parties to the proceedings and therefore may not appeal any decisions under the merger control provisions.