Investment in the National Payment Institution without notifying the Polish Financial Supervision Authority

We advised the national payment institution on the following project:

NO OBLIGATION TO NOTIFY THE POLISH FINANCIAL SUPERVISION AUTHORITY OF AN INTENTION TO ACQUIRE OR TAKE UP A SIGNIFICANT BLOCK OF SHARES IN THE POLISH FINANCIAL SUPERVISION AUTHORITY

• In many cases, regulations in the financial market require that an entity that acquires control of a financial institution, most often through the acquisition of shares, notify the regulator of its intent to undertake such acquisition.
• The Payment Services Act requires that an entity intending to acquire or take up shares in the national payment institution in a number that ensures reaching or exceeding, respectively, 20%, 30% or 50% of the total number of votes in its governing body or its share in the share capital, or if, as a result of such acquisition or taking up of shares, such an institution would become its subsidiary or sub-subsidiary, should notify the PFSA of its intention. Certain provisions of the Banking Law apply to the notice accordingly. The PFSA may object to the acquisition in cases specified in the regulations.
• If the acquirer has not given the above notice, the acquirer may not exercise the voting rights of the shares. If, despite the lack of notice, voting rights have been exercised, including through the adoption of resolutions by the governing body, the resolutions are generally invalid and the PFSA may request that the resolution be declared invalid by the court.
• In some cases, under the provisions of the Code of Commercial Partnerships and Companies, the investor’s participation in the capital of the national payment institution does not result in the subscription or acquisition of shares. Some controversy emerged before the PFSA as to whether the notification obligation under Article 72a(1) of the Payment Services Act arises in such cases.

The advisory services of DLK Legal included:

• legal analysis and classification of an investment in the national payment institution,
• preparing a legal opinion indicating absence of the notification obligation,
• dialog with the PFSA ended with the finding of absence of the notification obligation.