TerraLex Guide to Foreign Direct Investment - NEW

FDI screening in Poland operates at the national level. The principal legislation is the Act on Control of Certain Investments of 24 July 2015, which establishes a mandatory review regime for acquisitions of control or significant influence over entities operating in strategic or sensitive sectors.

Poland also participates in the EU cooperation mechanism under Regulation (EU) 2019/452, meaning Polish screening authorities exchange information with other EU Member States and the European Commission in relevant cross-border cases.

The competent authority depends on the target company's category. These include:

• Minister responsible for State assets - primary FDI authority for entities designated as strategic in the government list (energy, fuels, pipelines, chemicals, telecom, gas and electricity networks, etc.).

• Minister of National Defence - authority for transactions involving companies operating in the defence, military, or explosives industries.

• Minister responsible for the maritime economy - authority for transactions involving companies engaged in cargo handling in ports of national economic significance.

• Minister responsible for or economic affairs - authority for the extended screening regime covering sensitive-sector companies exceeding statutory turnover thresholds (EUR 10 million).

The regime does not provide for a formal pre-notification clearance mechanism. However, informal consultations with the competent ministry are possible in practice and are commonly used in complex transactions to assess filing obligations and scope.

FDI review in Poland is triggered when a foreign investor acquires control, significant influence, or certain assets of an entity covered by the Polish investment screening regime.

The FDI Act distinguishes two categories of companies, each with separate notification triggers:

1. Entities designated as strategic in the government list (the so-called “List of Protected Entities”), including strategic companies in the energy, fuel, chemicals, telecommunications, and logistics sectors. For this group, a filing is required upon:

• acquisition of dominance (exceeding 50% of votes or share capital),

• acquisition or achievement of significant participation (≥20% voting rights or partnership interests), reaching voting right thresholds of 20%, 25%, 33% or 50%,

• acquisition of an enterprise or organised part thereof.

2. Entities not on the designated list but active in sensitive sectors, such as energy and fuel, electricity and gas transmission, telecommunications, water supply, food security-related operations, pharmaceuticals and medical devices, defence and dual-use technologies, and critical IT, data and cloud infrastructure, provided they generated more than EUR 10 million turnover in Poland in at least one of the previous two financial years. For this group, a filing is required upon:

• acquisition of dominance (>50% voting rights or capital),

• holding at least 20% of voting rights, partnership interests, or profit participation,

• reaching 20% or 40% thresholds,

• acquisition or lease of an enterprise or organised part thereof.

Indirect, subsequent, and structured acquisitions (including those via subsidiaries, nominees, portfolio management arrangements, or corporate reorganisations) are also caught.

For entities on the designated strategic list, the FDI screening rules apply uniformly to all foreign investors, irrespective of their jurisdiction of origin.

For the broader category of sensitive-sector companies (subject to the turnover threshold), the regime applies only to investors originating from outside the EU, EEA, or OECD. Investors who are:

• natural persons holding citizenship of an EU, EEA, or OECD country, or

• legal entities with their registered office in an EU, EEA, or OECD Member State for at least two years prior to the filing,

are exempt from mandatory notification.

However, the screening authority may still review such investors if there are indications that their structure or presence in the declared jurisdiction is not genuine and may be intended to circumvent the screening regime. In such cases, even an investor formally established within the EU, EEA, or OECD may effectively fall within the scope of the screening mechanism.

Indicators of circumvention may include acting as a nominee, lack of substantive business activity or presence in the declared jurisdiction, or using a vehicle incorporated solely for the purpose of the acquisition. Such verification may be initiated within five years of the transaction.

As a result, complex holding structures, investment funds, and multi-jurisdictional ownership chains may still fall within the notification requirement. Therefore, given the wide definition of control and the strict sanctions for non-notification, investors frequently adopt a precautionary approach and perform detailed jurisdictional analyses when a Polish asset or strategic-sector entity is involved.

The substantive test examines whether the intended transaction could pose a threat to public order, public security or public health in Poland or the European Union. Purely economic considerations do not justify intervention.

A notifiable transaction cannot be implemented until clearance is obtained. The Polish FDI regime primarily requires a mandatory pre-closing filing. A transaction caught by the screening rules cannot be completed or rights exercised until clearance is obtained (stand-still obligation applies).

In exceptional circumstances, a post-closing filing obligation may arise, particularly where control or significant participation is acquired as a result of events outside the investor’s control (e.g., inheritance, corporate restructuring, merger at a higher level in the group, or automatic increase in shareholding due to capital changes).

In such cases, the notification must be made without undue delay once the relevant threshold is reached or control is obtained.

Failure to notify, whether pre- or post-closing, may result in nullity of the transaction, suspension of voting rights, forced divestment, and administrative and criminal sanctions.

There is no filing fee associated with submitting a notification.

The notification must include detailed information about the transaction and the acquirer, including: ultimate beneficial ownership, group structure, financing, business plans, and information on the persons managing the acquirer.

Supporting corporate and identification documents are required and must be provided in Polish (with sworn translations where applicable).

As a general rule, the acquirer is responsible for submitting the notification.

However, there are exceptions. In particular, in certain cases of indirect acquisitions – for example, when control over a protected Polish entity is obtained as a result of a transaction occurring at a higher level in the ownership chain – the obligation to notify may rest with the entity that ultimately acquires control, even if it is not the direct purchaser.

Failure to notify a notifiable transaction carries severe consequences, including nullity of the transaction, the potential suspension of voting rights, and forced divestment. Administrative sanctions may also apply.

A mandatory standstill obligation applies, meaning the investor may not complete the transaction or exercise control rights before clearance is granted. Any transaction implemented in breach of the standstill rule is considered void ab initio and may trigger enforcement measures, including divestment orders.

The authority may review transactions ex officio if there is a reasonable suspicion that they should have been notified or raise security concerns.

In practice, the Polish FDI regime operates primarily on a clear or prohibitive basis, although the law provides mechanisms to restrict rights or require divestment in exceptional circumstances (particularly in ex officio proceedings and circumvention cases).

The competent authority may issue the following decisions:

• No objection/clearance (including tacit clearance where no decision is issued within the statutory deadline),

• Prohibition decision, preventing the investor from acquiring or exercising rights resulting from the transaction,

• Decision allowing the exercise of rights only up to the threshold of “significant participation” where the manner of acquisition cannot be established,

• Order to divest shares or assets and/or appointment of a trustee if the investor fails to comply with the decision or completes the transaction without required approval.

Polish FDI law does not provide for conditional approvals. The screening regime operates on a binary basis: the competent authority may either (i) raise no objection, in which case the transaction may proceed, or (ii) issue a prohibition decision preventing the acquisition or the exercise of rights arising from the acquired shares or assets.

Yes. Decisions issued under the Polish FDI regime may be appealed to the Voivodeship Administrative Court, and subsequently to the Supreme Administrative Court.

However, review is limited to procedural correctness and legality. National-security assessments are afforded significant deference by the courts, meaning the chances of overturning a prohibition on substantive grounds are very limited.

Poland has operated a dual FDI review system.

Entities designated as strategic in the government list are reviewed under a single-phase timeline of up to 90 days, in which the authority assesses the filing and either raises no objection (explicitly or by silence), allowing the transaction to proceed, or issues a prohibition decision. If no decision is issued within the statutory timeline, the transaction is deemed cleared.

A broader group of sensitive-sector entities exceeding a EUR 10 million turnover threshold in Poland is subject to a two-phase review. The authority first conducts an initial review, which may last up to 30 business days. If potential risks are identified or further information is required, the procedure may enter an in-depth review phase lasting up to an additional 120 calendar days, which ends with either a no-objection outcome (allowing the transaction to proceed) or a prohibition decision. If not, the authority is expected to issue a no-objection decision, after which the investor may proceed with the transaction.

Both regimes operate concurrently, and a standstill obligation applies.

FDI filings and proceedings are non-public and protected by administrative confidentiality rules.

The authority may, however, share information with other government institutions and with the European Commission under the EU FDI cooperation mechanism.

Confidential business information and trade secrets submitted by the investor are protected under Polish administrative and trade-secret laws.

Yes. In addition to the FDI Act, certain sector-specific and real-estate-related restrictions may apply, including:

• Foreign acquisition of real estate (including share deals involving companies holding real estate) may require a permit from the Minister of Interior if the investor is from outside the EU/EEA/Switzerland.
• Agricultural land: acquisitions involving more than 5 hectares of agricultural land may trigger state pre-emption rights and additional regulatory review under agricultural land control legislation.
• Port infrastructure: acquisitions of companies holding real estate within seaport areas may require a permit from the Minister of Infrastructure; the State Treasury may also have pre-emption rights.
• State-owned companies: acquisition of shares held by the State Treasury in certain key enterprises requires approval from the Council of Ministers.

These regimes operate alongside the FDI screening system and may apply cumulatively depending on the nature of the investment.