Control of foreign investments—upcoming changes
In May 2025 a bill to amend the Control of Certain Investments Act was published on the website of Poland’s Government Legislative Centre. The proponent is the Minister of Economic Development and Technology. The bill is not extensive (containing only four articles), but would introduce significant changes for the future.
Work on the bill is now underway in the Standing Committee of the Council of Ministers, and if approved by the government it should be submitted to the parliament before the summer holiday. If the bill passes—and all signs are that it will—the competition authority will no longer be responsible for oversight of foreign investments in Poland, while Polish enterprises operating in strategic sectors for public safety, order and health will be subject to indefinite protection against takeovers by entities from non-OECD countries.
Current regulations—two categories of protected entities and two separate regimes for administrative oversight
The Control of Certain Investments Act entered into force in 2015, and underwent an overhaul in 2020 to protect Polish companies from being acquired by entities from outside the European Union, the European Economic Area, or the Organisation for Economic Cooperation and Development. The scope of application of the act was also greatly expanded, introducing a comprehensive framework for oversight of actions by foreign entities which, in the lawmakers’ view, posed a threat to public safety, order and health in connection with the worsening economic situation due to the Covid-19 pandemic.
The amendment was introduced for a limited time. Initially it was to remain in force for two years, but in 2022 it was decided to extend it by three more years in light of “the international situation disrupting the market or competition.” (We write more about the FDI regulations in Poland and other European countries in the article “Foreign investment controls: The ‘foreign investor’ test and ‘protected entity’ test in the EU and the UK.”) The current provisions remain in force until 24 July 2025.
In essence, the Control of Certain Investments Act protects two categories of entities of vital importance for state security, and provides for two separate mechanisms for control of foreign investments affecting protected entities. The first category (the original one introduced in 2015) is composed of entities of strategic importance for the state, as determined by criteria set forth in the act. This is an exhaustive list of specific protected entities, published in the form of a regulation of the Council of Ministers and updated annually. The current regulation (dated 18 December 2024) lists 23 protected entities, such as fertiliser company Grupa Azoty S.A., copper company KGHM Polska Miedź S.A., oil companies Orlen S.A. and Rafineria Gdańska Sp. z o.o., telecoms Orange S.A. and T-Mobile Polska S.A., and media companies TVN S.A. and Cyfrowy Polsat S.A.
Transactions involving acquisition of control or a significant stake by any foreign investor in the protected strategic Polish companies are subject to oversight by the relevant ministers (currently the Minister of State Assets and the Minister of Defence).
The second category of protected entities (introduced in 2020) is an open-ended set of all companies established in Poland and meeting the following two criteria:
- Their revenue from sale of products and services in Poland in either of the last two financial years preceding the notification exceeded the equivalent of EUR 10 million.
- They fulfil at least one of the following conditions:
- They have the status of a public company.
- They hold assets disclosed in a uniform list of facilities, installations, equipment and services constituting critical infrastructure (as referred to in the Crisis Management Act of 26 April 2007).
- They operate in certain areas broadly defined in the act, such as generation and transmission of electricity, natural gas or fuels; telecommunications; food processing; manufacturing of pharmaceuticals, chemicals or fertilisers; manufacturing and sale of explosives, weapons or ammunition; and products of technologies for military use.
- They create software used in services fundamental for society, such as energy, fuels, water supply, cash supply, payment cards, hospitals, sale of prescription drugs, transport, and food supply.
Polish companies in this category are subject to protection in the event of a planned acquisition by entities (natural or legal persons) from countries that are not members of the EU, the EEA or the OECD.
Evidently, this set of protected companies is much broader than the group of 23 named strategic companies. For transactions involving this broad category of companies, oversight for protection of public order, safety and health is vested in the President of the Office of Competition and Consumer Protection (UOKiK) (a topic we discuss in the article “Control of foreign investments in Poland: The competition authority’s current procedural guidance”).
Proposed changes
The amendment proposed by the ministry would introduce two major changes. First, it would impose continual, indefinite control of foreign investments in protected domestic companies originating from outside the EU, the EEA or the OECD. Thus temporary protection would be replaced by permanent protection.
Second, the authority with jurisdiction over control of foreign investments from outside the EU, the EEA or the OECD would no longer be the President of UOKiK, but the minister for economic affairs, i.e. the Minister of Economic Development and Technology.
The President of UOKiK would thus lose the authority to oversee foreign investments, but at the same time is to gain new authority in the area of the digital market, including the right to lead investigations involving “gatekeepers”—global tech firms that control access to various services (e.g. search engines, online retail and social media) and have a huge influence on how smaller businesses function on the market (see the legislative process for the proposed Act Amending Certain Acts to Ensure Compliance with European Union Laws Improving the Functioning of the Internal Market).
Under the transitional provisions in the bill, cases initiated by the President of UOKiK and still pending on the effective date of the new provisions would be taken over by the Minister of Economic Development and Technology.
The new regulations should enter into force by 24 July 2025 to ensure continuity of protection.
Andrzej Madała, Competition & Consumer Protection practice, Wardyński & Partners
