Disclosure Requirements - Poland
Disclosure Category 2
Upon request from the regulator, CBL may fall under the obligation to disclose the identity and holdings of customers.
In order to comply with the legislation as mentioned below, customers entering into transactions in the Polish market must consent and are hereby deemed to consent to disclosure. Such consent includes the appointment of the requestor (for example, the issuer or its agent) as attorney-in-fact of such customers, under power of attorney, to collect from CBL such information as is required to be disclosed. Customers not willing to give this consent cannot hold such securities and/or financial instruments in their account with CBL.
In the case of holdings in Polish securities, CBL can be under an obligation, to disclose, or being asked to disclose, the identity of beneficial owners holding such securities in the following situations:
- If the customer wants to participate in corporate events and proxy voting (disclosure to the issuer).
- If the customer wants to apply for tax relief (disclosure to the tax authorities for tax purposes, please refer to the Market Taxation Guide - Poland). Customers are requested to provide a split of position between individual and corporate beneficial owners. If the customer does not disclose the beneficial owners, CBL will assume that the securities are in the possession of corporate beneficial owners.
- To answer market regulatory requests from the Polish Financial Supervision Authority (PFSA) and the General Inspector of Financial Information (GIFI).
Directive (EU) 2017/828 of 17 May 2017 amending Directive 2007/36/EC with regards to the encouragement of long-term shareholder engagement (the second shareholder’s rights directive “SRD II”) has been transposed into Polish law through the addition of Articles 68i-68n to the Act of July 29 2005 on trading in financial instruments. These new articles become effective from 3 September 2020 (SDR II Law).
Background and legal basis
Disclosure is required to the issuer and/or to the Polish Financial Supervision Authority (PFSA).
The basis for the disclosure derives from:
- The Banking Act, dated 29 August 1997, as amended; and
- Chapter 4 of the Act on Public Offering, Conditions Governing the Introduction of Financial Instruments to Organised Trading, and Public Companies, dated 29 July 2005 (the “Act on Public Offering”), as amended; and
- Article 8b sections 1 and 2 of the Act of 29 July 2005 on trading in financial instruments (consolidated text: Journal of Laws 1010, No. 211, item 1384 as amended); and
- The Act on Insurance Activities, dated 22 May 2003, as amended; and
- The Act on Control of Certain Investments, dated 24 July 2015, as amended.
Obligation to report threshold crossings
The obligation falls on the investor who acquires or controls a major holding and it is the responsibility of the investor to organise such disclosure.
Ownership and/or acquisition must be reported in any of the following circumstances:
Disclosure in compliance with the Banking Act
- Before acquisition of 10%, 20%, 33⅓% and 50% of votes at a domestic bank's shareholders’ general meeting, in each case, the investor should, before execution of the transaction, notify the PFSA of its intention to take up or acquire shares. The PFSA may, within 60 business days after the notification is filed, oppose the taking-up or acquisition of shares.
- Upon acquisition, by any person, of shares in a domestic bank where these shares, together with any previously acquired, give that person a holding reaching or exceeding 5%, 10%, 20%, 25%, 33⅓%, 50%, 66%, 75% of votes at a shareholders’ general meeting, notification must be made immediately to the domestic bank concerned.
- Any person intending to dispose of a shareholding in a bank shall, in the following circumstances, be required to notify PFSA of their intentions before executing the transaction:
- If the holding in question entitles them to over 10% of the votes at a general meeting of domestic bank’s shareholders; or
- If the disposal of the holding would result in their voting rights falling under 10%, 20%, 33⅓% or 50% at a general meeting of domestic bank’s shareholders.
Note: This notification requirement shall be duly applicable to the acquisition or disposal of bonds convertible into shares in a bank, depository receipts and any other securities to which are attached the right or obligation to acquire shares in a bank.
The acquisition or holding of shares by a subsidiary undertaking shall be deemed to constitute the acquisition or holding of such shares by the parent undertaking.
The provisions of the Banking Act shall not prejudice those of the Act on Public Offerings. Sanctions
Exercising voting rights on shares acquired in violation of the obligations specified above is void. The PFSA may order a disposal of such shares.
Disclosure in compliance with the Act on Public Offering
Upon acquisition by any person of shares in a public company, whose holding reached or exceeded 5%, 10%, 15%, 20%, 25%, 33%, 33⅓%, 50%, 75% or 90% of the total vote;
When ownership is more than 10% of the total vote in a public company: upon acquisition or sale of shares (including depository receipts and bonds convertible to shares) that changes the number of votes by (i) 2% or more in the case of securities traded on the official stock exchange market or (ii) 5% or more in the case of securities traded on the other regulated markets;
When ownership is more than 33% of the total vote in a public company: upon a change in the number of votes by 1% or more;
Notification must be made to the PFSA and to the issuer within four days after the change of holding or after the date on which the obligated person became aware, or could have become aware through exercise of due professional care, of the change, or within six trading days from the trading date if the trade was concluded on the regulated market or alternative trading system.
Investors acquiring shares which give the investor over 33% of the total vote in a public company must make a call to subscribe for the sale or conversion of equities in a number allowing such investor to acquire at least 66% of the total vote.
Investors acquiring over 66% of the total vote in a public company must make a call for the remaining shares in that company.
Purchase(s) of more than 10% of the total vote in a public company within less than 60 days can be done only in the form of the call for shares in a number representing no less than 10% of the voting rights. This obligation affected investors having less than 33% of the total vote in a company.
Purchase(s) of more than 5% of the total vote in a public company within less than 12 months, by a shareholder who already owns at least 33% of the total vote, could be done only in the form of a call for shares in a number representing no less than 5% of the voting rights.
Shares held by an indirectly or directly controlled entity shall be treated as if they were held by the controlling entity. The existence of written or oral agreements between shareholders aiming at a joint policy toward a particular company, parking of shares, or informal trusts may result in summarising votes held by such shareholders for establishing substantial shareholding levels.
The obligations rest also on an investment fund, if it reaches or exceeds a given threshold of the total vote, in connection with shares held jointly by other investment funds managed by the same investment fund company, established either inside or outside Poland.
Asset managers that are authorised to exercise votes at a general meeting with respect to the managed shares are required to report on behalf of their clients. Sanctions
Non-compliance with the disclosure requirements may result in loss of voting rights and a fine imposed by the PFSA, the amount of which is determined on case by case basis.
Disclosure in compliance with the Act on Insurance Activities
If any person intends to take up or acquire shares in a Polish insurance company, directly or indirectly, where these shares would give that person a holding reaching or exceeding 10%, 20%, 33⅓% or 50% of votes at a shareholders’ general meeting or share capital, notification must be made to the PFSA.
If any person intends to dispose of a shareholding in a Polish insurance company, directly or indirectly, where the disposal of the holdings will result in the proportion of that party’s voting right at the general meeting or share capital falling below 10%, 20%, 33⅓% or 50%, notification must be made to the issuer at least 14 calendar days before executing the transaction. Respective notification to the PFSA has to be made.
Disclosure in compliance with the Act of 29 July 2005 on trading in financial instruments
In order to comply with Polish law and regulatory requirements, CBL will disclose to the PFSA and the GIFI, upon market regulatory requests from them, the name and number of securities held by the CBL customer.
Law on control over particular investments
The “Law on control over particular investments” ("The Law") has been approved by the President of Poland and published in the Journal of Law and will come into force on 24 July 2020. As per the Law, during the next twenty four months, investors not residing in the European Union/European Economic Area (EU/EEA) or in the Organisation for Economic Cooperation and Development (OECD), when reaching a significant or dominant position in a company which is subject to this regulation, in particular by reaching or exceeding 20% or 40% of voting power, will require consent of the Office of Competition and Consumer Protection (UOKiK).
Over a 24-month period, investors outside of the EU/EEA/OECD, are required to seek UOKiK approval, when reaching a significant or dominant position in a company which is subject to this regulation, in particular by reaching 20% or 40% of votes at the general shareholders meeting of public issuers with their seats in Poland.
Shareholder identification as set out in the SRD II Law
The SRD II Law provides for the right of issuers to identify their shareholders.
Issuers can request intermediaries at each level of a custody chain to promptly provide relevant information to facilitate such identification.
In accordance with the SDR II Law as amended, an intermediary (in this case CBL) shall, upon receipt of the shareholder identification disclosure request, transmit a similar request to the next intermediaries in the custody chain (that is, CBL customers with holdings in the requested securities). A response to the shareholder identification disclosure request shall be sent by every intermediary in the custody chain directly to the recipient's address defined in the request and without delay. CBL will generate the response as required, with information regarding the shareholder's identity, limited to CBL books only.