Poland makes FDI screening regime permanent and shifts oversight to the Ministry of Finance and Economy
10 min read
Poland's foreign direct investment ("FDI") screening regime, originally introduced in 2020 for a 24-month period and subsequently extended for an additional 60 months (i.e. until 24 July 2025), established a mechanism for reviewing foreign investments. Until now, this mechanism has been overseen by the Polish Competition Authority ("UOKiK"). Under new legislation taking effect on 24 July 2025, the FDI screening regime will become permanent for investors from outside the EEA and OECD. At the same time, review authority will be transferred from UOKiK to the ministry responsible for economic affairs; following a pending reorganisation of the Polish government, this should be the Ministry of Finance and Economy ("MoFE").
FDI in Poland – current experience
The FDI regime operates alongside Poland's 2015 investment control framework, administered by relevant sectoral ministries. That earlier regime targets a limited but steadily expanding list of strategic entities – currently 24 across various sectors – and applies irrespective of the investor's nationality.
The five years of implementing the FDI regime in Poland were marked by the evolution of UOKiK's practice, periodic revisions of its FDI guidelines, increasing formalism in its transaction assessments and a gradual alignment of the FDI regime with the merger control framework. It remains to be seen whether the MoFE – a political body without a merger control background – will continue UOKiK's established approach and practice in applying the regime.
Precedential decisions remain limited: Since 2020, UOKiK has issued only 12 clearance decisions. Of these, just two transactions underwent more detailed scrutiny in Phase II proceedings, and UOKiK has not opposed any transaction reviewed under the FDI regime (though one notification was withdrawn by the party). An additional 12 filings were rejected for falling outside the scope of the regime.
During this period, White & Case secured the first-ever FDI clearance in Poland, participated in one of the two Phase II proceedings to date, and obtained clearances in 25 per cent of all FDI cases reviewed by UOKiK since 2020.
UOKiK's scrutiny has primarily focused on strategic sectors such as oil and gas, energy, metallurgy, electronic payments, transportation and the food industry. However, transactions across a broad range of other sectors may also attract regulatory attention.
Investor nationality was not a determining factor. Approved investors have included entities from China, Egypt, India, Saudi Arabia, Singapore, Ukraine and the United Arab Emirates.
Who files
Except for explicitly excluding transactions involving the Polish State as an investor from the FDI regime, the new law does not introduce any other changes to the FDI provisions; therefore, the framework for reviewing foreign investments remains unchanged.Except for explicitly excluding transactions involving the Polish State as an investor from the FDI regime, the new law does not introduce any other changes to the FDI provisions; therefore, the framework for reviewing foreign investments remains unchanged.
All non-EEA and non-OECD nationals (natural persons without EEA or OECD citizenship) and non-EEA and non-OECD entities (those without a registered office in the EEA or OECD for at least the past two years) are required to file for clearance when entering any covered transaction. The origin of an investor is assessed at the ultimate parent level, meaning the nationality of the party directly involved in the transaction is not of primary importance. Interestingly, the current practice confirms that in a joint control scenario the involvement of just one foreign parent company among the investors is sufficient to trigger an FDI filing requirement.
In cases of indirect acquisitions, the obligation to submit a post-closing filing lies with the acquired entity holding dominance or a qualified stake in the covered entity. However, market practice shows that, to ensure greater deal certainty, parties often opt for pre-closing filings even in such scenarios.
The FDI rules include specific provisions to prevent circumvention of the EEA/OECD domicile requirement. For instance, subsidiary entities, branches or representative offices of non-EEA/non-OECD nationals or entities are also classified as non-EEA/non-OECD entities. Moreover, even if an acquisition is conducted by an EEA/OECD citizen or entity with a registered office in the EEA/OECD, the buyer may still be deemed "foreign" if there are indications of law circumvention. Examples include cases where the buyer engages only in holding shares or controlling other entities, does not conduct sustainable business activities or lacks staff within the EEA/OECD.
Types of deals reviewed
There are three types of deals involving covered entities that require clearance.
The first is the direct or indirect acquisition of control over the covered entity, including: holding more than 50 per cent of the votes at the general/shareholders' meeting or 50 per cent or more of the capital; having the right to appoint and/or dismiss the majority of the members of the management board or the supervisory body of the covered entity; and having any other right to decide the direction of the covered entity's business, including under an agreement with the covered entity.
Secondly, the direct or indirect acquisition of a qualifying holding in the covered entity, representing 20 per cent or more of the votes at the general/shareholders' meeting; share capital; and/or a share in distributed profits, requires clearance. This also includes the acquisition of any holding that would raise the buyer's total to more than 40 per cent of votes, share capital or share in distributed profits.
Finally, the purchase or lease of the enterprise (or an organised part thereof) of the covered entity through an asset deal also requires clearance.
The clearance obligation is also triggered if any of the above arises from: the redemption of shares by a covered entity; a covered entity's purchase of its own shares; or the merger or spin-off of a covered entity.
There is no predetermined list of covered entities. However, any entity that (i) has its registered seat in Poland, (ii) achieved revenue in Poland exceeding EUR 10 million in at least one of the two preceding financial years, and (iii) is either publicly listed in Poland, holds assets classified as part of critical infrastructure, develops or modifies important software, or operates in strategic sectors, may be considered a covered entity.
Scope of the review
The FDI authority may issue an objection if the transaction poses at least a potential threat to public order, public security or public health in Poland, or if the transaction might negatively impact projects or programs of interest to the EU. Therefore, political considerations may increasingly influence potential objection decisions by the FDI authority, especially after 24 July 2025, when FDI review powers are transferred to the MoFE.
A transaction made without the required notification or despite an objection by the FDI authority is considered null and void.
In the case of an indirect acquisition through transactions not governed by Polish law – such as the merger of non-Polish entities resulting in a change of control over a covered entity – whilst such transactions will not be unwound, the acquirer will not be allowed to exercise its corporate rights in the covered Polish company.
Additionally, breaching the clearance obligation constitutes a criminal offence, punishable by a fine of up to PLN 50 million (US$13.6 million) and/or imprisonment for up to five years.
Finally, in the case of an indirect acquisition, a person required by law or by agreement to manage the affairs of a subsidiary that has not submitted the required notification will also be subject to a fine of up to PLN 5 million (US$1.4 million) and/or imprisonment for up to five years, if that person was aware of the acquisition being made.
Review process timeline
The FDI review procedure before the FDI authority takes up to 30 business days. However, this can be extended for an additional 120 calendar days if the FDI authority decides to initiate control proceedings. Deadlines are suspended when the FDI authority is awaiting requested information and documents.
How foreign investors can protect themselves
The merging parties must consider the FDI rules whenever contemplating a transaction with a Polish element, such as when a Polish company is directly targeted or part of the target group. Most transactions require an assessment to determine whether an FDI filing is triggered in Poland. This assessment can be complex, requiring data from the parties involved, including detailed information on the capital group structures, the domicile of the ultimate beneficial owners, and the transaction structure and scope of business of Polish targets.
Given the potential for varied interpretations of the FDI rules and the possible need for consultation with the FDI authority, FDI analysis should be initiated early in the transaction process. This is especially important under the MoFE's jurisdiction, as its enforcement practices are not yet established and transactions may be subject to heightened scrutiny.
Moreover, as our recent experience confirms, UOKIK was becoming increasingly formalistic when it comes to the documentation required for FDI proceedings. Since the FDI authority may request documents to be translated, apostilled or legalised (depending on the case), it can significantly prolong the document collection process. It remains to be seen whether the MoFE will continue this formalistic approach; however, this element should be factored into the transaction timeline.
As with other jurisdictions, it is critical for foreign investors to factor in Polish FDI considerations when planning and negotiating transactions. Investors should ensure that a condition precedent related to obtaining FDI clearance in Poland is included, where appropriate, before closing. In some cases, it may also be necessary to allocate potential risks related to the FDI proceedings between the merging parties.
In most instances, obtaining swift clearance requires the FDI notification to be drafted clearly and informatively, accompanied by convincing evidence that the transaction will not raise any concerns. This necessitates not only a deep understanding of the transaction dynamics but also efficient co-operation between different teams of advisers and effective communication with the client.
After submitting an FDI filing, it is essential to remain actively engaged in the process, build a positive working relationship with the FDI authority and respond promptly to all queries from the authority.
“Looking ahead”: likely developments in the FDI regime
Given that the MoFE will assume responsibility for applying the FDI regime, its enforcement practices remain uncertain – specifically, whether it will adhere to UOKiK's FDI guidelines and decisional practices, and how political considerations may influence deal reviews. Therefore, it is crucial to carefully navigate business operations during this period of legal uncertainty and ensure that any advice provided is grounded in practical, on-the-ground experience. "Looking ahead": likely developments in the FDI regime
The recent decisional practice of UOKiK demonstrated that the authority is willing to adopt a functional interpretation of the FDI rules and assert its jurisdiction even in ambiguous cases. If this approach continues under the MoFE, we can expect an increase in the number of FDI cases in Poland.
Additionally, it is likely that market practices will evolve to address certain gaps in the FDI regime. A notable example was the trend of submitting simplified letters to inform the FDI authority about transactions in uncertain cases, seeking confirmation of whether a filing was required. This practice has emerged as a response to the lack of a pre-notification procedure in the current FDI regime.
We also foresee closer co-operation between the FDI authority, the European Commission and other national competition authorities in reviewing deals with a foreign element. UOKiK recently started requiring notifying parties to submit, alongside the FDI filing, the additional EU form under Regulation 2019/452. This EU form is a highly complex document that requires notifying parties to disclose extensive information about the transaction, the parties' group structures and their activities within the EU market. This development should enhance the level of scrutiny in cross-border deals.
Given that only a limited number of deals are notified to the FDI authority, the MoFE may continue to apply a functional and broad interpretation of FDI rules, asserting jurisdiction even in borderline cases. It may also begin to monitor the market more closely to detect any attempts by parties to circumvent the filing obligation. The FDI has the authority to initiate control proceedings ex officio if it determines that a transaction requires notification. If it initiates such proceedings, it can review the transaction for up to five years from the date of its completion.
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This article is prepared for the general information of interested persons. It is not, and does not attempt to be, comprehensive in nature. Due to the general nature of its content, it should not be regarded as legal advice.
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