A&O Shearman has advised Clip Terminals on financing from Bank Pekao for the expansion of its intermodal terminal. Clifford Chance reportedly advised Bank Pekao.
Clip Terminals is a member of the Clip Group – a European logistics center.
The A&O Shearman team included Partner Tomasz Kawczynski, Senior Associate Konrad Zawistowski, and Associates Maciej Szalak and Maria Korba.
White & Case has advised Bank Gospodarstwa Krajowego on its issuance of two bond series on the dollar market with a total value of USD 3.5 billion. Linklaters advised the joint lead managers.
The consortium that organized the issuance included BNP Paribas, Citigroup Global Markets Europe, Deutsche Bank, Goldman Sachs Bank Europe, and J.P. Morgan.
Bank Gospodarstwa Krajowego is a Polish national development bank owned by the state and operating under a dedicated bill of law to facilitate exports, issue governmental guarantees, and support housing.
According to White & Case, “the bonds were issued for the purposes of the COVID-19 Response Fund, ten-year bonds with a nominal value of USD 1.75 billion, and the National Road Fund, 30-year bonds with a nominal value of USD 1.75 billion. The total demand for both series of dollar bonds reached a record level of approximately USD 6.6 billion. The bonds were issued under the medium-term note program established by BGK and are listed on the regulated market operated by the Luxembourg Stock Exchange.”
In 2023, White & Case advised BGK on its USD 1 billion bond issuance for Poland’s armed forces support fund (as reported by CEE Legal Matters on November 8, 2023) as well as on BGK’s May 2023 issuance of ten-year bonds, with a total nominal value of USD 1.75 billion, guaranteed by the State Treasury of the Republic of Poland, and with proceeds earmarked for the COVID-19 response fund (as reported by CEE Legal Matters on June 1, 2023).
The White & Case team included Warsaw-based Partner Marcin Studniarek, Local Partner Bartosz Smardzewski, Associate Dawid Ksiazek, and further team members in London.
The Linklaters team included Partners Simon Few and Pam Shores.
Schoenherr has advised R-GOL.com on its acquisition of a majority stake in SportBM.
R-GOL.com is a football store in Poland. The company has a network of stationery stores in Gdansk, Olsztyn, and Warsaw.
SportBM offers tools for managing sports academies and clubs across 30 disciplines. The company is developing its own SaaS platform for entities training children and youth.
According to Schoenherr, “this strategic partnership aims to establish an innovation hub dedicated to advancing digital product development within the football ecosystem, enhancing the digitalization of sports clubs and academies across the region. With this acquisition, R-GOL.com will be provided with new opportunities to expand in the fast-growing sports technology market and diversify its business model with regular subscription revenues.”
The Schoenherr team included Partner Katarzyna Solarz-Wlodarska, Attorney at Law Krystyna Jakubowska, and Associate Kamil Jurzak.
Schoenherr did not respond to our inquiry on the matter.
Editor’s Note: After this article was published, CMS announced that it advised Innova Capital and R-Gol on the acquisition financing obtained from mBank and Bank Pekao. A&O Shearman, and reportedly Horten, advised the lenders. Kromann Reumert reportedly advised Innova Capital as well.
The CMS team included Partner Jakub Wieczorek, Counsel Monika Kowara, Associate Magdalena Gajewska, and Lawyers Daria Dabrowska and Michal Szczesniak.
The A&O Shearman team included Partner Anna Madra and Associates Maciej Szalak, Rafal Roziecki, and Maria Korba.
Despite the holiday season traditionally being slow, this year has been unusually busy, according to Linklaters National Managing Partner Marcin Schulz, both with notable deals underway and a strong pipeline of anticipated M&A work post-summer.
“The holiday period, which is usually a slow time, hasn’t been that way for years – we’ve been very busy,” Schulz points out. “However, the situation is a bit tricky and unusual, with many transactions being put on hold by sellers waiting for better valuations.”
Schulz observes that “in the post-COVID era, concerns about global uncertainty – regarding the US, Taiwan, and Ukraine – have made things challenging.” Still, he notes that a lot of transactions are still progressing. “From our perspective, the busiest sectors have been financial services, logistics, renewables (including offshore), IT/Tech, and industrials. A transaction that stands out in the financial services space is the acquisition by Cerberus of VeloBank in Poland. Not less attention has been attracted by the pioneering non-recourse green financing of the Baltic Power offshore wind farm, which is the first offshore wind farm to reach financial close in Poland.”
Schulz adds that “the TMT sector seems to be doing pretty well, too, with the successful completion of the investment by APG in the FTTH business of Orange being followed by the InfraVia Capital Partners’ investment in the FTTH business of UPC/Play or the discussions around the tower businesses in Poland and the wider region. There’s a lot of activity in the telecoms sector.”
Schulz believes that the autumn season will be particularly busy: “We anticipate new M&A work to commence after the summer vacations, particularly in offshore. We expect the permit holders for offshore projects in the Baltics to be seeking co-investors, likely attracting a strong group of bidders. Additionally, there’s significant activity in the renewables sector, especially in Poland and Romania, where we have been heavily involved. The focus is shifting from wind farms to photovoltaic projects, with discussions on innovative solutions like rooftop installations.” He adds that “the key players in the financial services space haven’t had their last word yet, either. Consolidation is anticipated in the banking sector currently fragmented to an extent higher than seen in other jurisdictions.”
Another interesting sector, according to Schulz, is real estate. “Although real estate activity across Europe is down slightly, we’re staying busy. There are still transactions in this space and the level of business is picking up again. One notable transaction worth mentioning in this context is Signal Capital Partners, Griffin Capital Partners, and Echo Investment’s joint venture to develop a student housing platform in Poland. Also, the demand for real estate financing is increasing, and financiers are showing renewed interest in the sector.”
Additionally, “after a brief slowdown following the elections last October, state treasury companies now seem to have resumed their investment activities, following recent appointments to their governing bodies,” Schulz stresses. He also draws attention to the increased interest of authorities in consumer rights protection in Poland, reporting on “a growing number of inquiries from the Polish antitrust watchdog regarding consumer rights.”
“In terms of legislation, we’re receiving numerous inquiries about whistleblowing regulations,” Schulz continues. “Additionally, the AI Act, which has been in development for many months, will enter into force on August 1, 2024. This is a significant development for companies across all sectors, and we expect this regulation will have a similar impact to how GDPR has revolutionized data protection.”
“Overall, I’m really optimistic about the outlook,” he says in conclusion. “While we don’t know exactly what will happen, I’m genuinely looking forward to what’s next.”
On June 24, 2024, the Act on the Protection of Whistleblowers (the “Whistleblowers Act”) was published in the Journal of Laws, which means that most of its provisions will come into force on September 25, 2024.
The following is a summary of the new provisions introduced into the Polish legal system by the Act, which are the most relevant from the point of view of employers.
Definition of whistleblower
Following the model of the implemented Directive 2019/1937 of the European Parliament and of the EU Council of 23 October 2019 on the protection of whistleblowers under the EU law (the “Directive”), the legislator does not differentiate between the forms of work provided or the nature of the legal relationship between the whistleblower and the legal entity where the irregularity occurred, if the whistleblower became aware of the irregularity in a broadly understood work-related context (provision of services, performance of functions).
Such a definition is not merely editorial and has important consequences in terms of the legal position of whistleblowers and their access to intra-organizational whistleblowing tools, as discussed in more detail below.
In addition, a whistleblower can also be an individual who becomes aware of irregularities in a work-related context before the employment (or other legal relationship) is established, as well as after the termination of this relationship, which means that the provisions of the Act should also be applied to both candidates for employment in a given legal entity and former (co-)employees of a legal entity.
Subject of whistleblower’s report
The whistleblowers Directive obliged Member States to include in their local laws implementing EU law certain areas of law and social life that may be affected by a whistleblower’s report but left Member States free to expand this catalogue. The EU regulation listed ten such areas:
The Polish legislator decided to expand this catalogue by four additional areas, which are:
Anonymous reports
The whistleblowers Directive left Member States the choice to extend protection to whistleblowers who anonymously report violations of the law. Successive drafts of the Whistleblowers Act have alternately allowed or disallowed this possibility, subjecting it to the individual decision of the individual entities implementing whistleblowing procedures.
In the final wording, the legislator decided to include anonymous reports under the regime of the Whistleblowers Act. This means that both legal entities and public bodies operating whistleblowing channels will be able to determine in their internal/external reporting procedures whether they choose to accept anonymous reports or whether they will leave them unprocessed. We note, however, that if the identity of a whistleblower who originally acted anonymously is subsequently disclosed, he or she should from that point on be treated on an equal footing with other whistleblowers at least in terms of protection against retaliation for having made a report and will be entitled to analogous claims for any harm suffered as a result of the report.
Prohibition of retaliation
The Whistleblowers Act described the prohibition of retaliatory actions against a whistleblower provided for by the Directive. The minimum requirements stemmed from the Directive, and the Polish legislator also extended this catalogue with e.g. mobbing, discrimination. Moreover, employers can also extend this catalogue on their own, e.g. to harassment or sexual harassment. The final wording of the Whistleblowers Act describes, among other things, the prohibition of actions involving any kind of coercion, intimidation or exclusion, or the prohibition of causing ‘other immaterial damage’, including the violation of personal property, in particular the whistleblower’s good name. Attempts or threats of such actions are also to be qualified as retaliatory actions. The Whistleblowers Act establishes that the burden of proof is on the employer to prove that the action taken against the whistleblower was not retaliatory.
The making of a report will not be allowed as a basis to:
The Whistleblowers Act also introduces rules on civil liability in connection with possible retaliatory actions. Under it, a whistleblower will be able to claim compensation from an employer or the other party to a legal relationship for retaliatory actions in an amount not lower than the average monthly remuneration in the national economy in the previous year, announced for pension purposes in the Official Journal of Laws of the Republic of Poland “Monitor Polski” by the President of the Central Statistical Office, or be entitled to damages. On the other hand, if it is the whistleblower who knowingly reports untrue information – the victim of such an action will be able to claim compensation or damages for violation of personal rights from the whistleblower who made such a report or public disclosure.
Internal notifications
The obligation to implement an internal reporting procedure will apply to legal entities for which, as of 1 January or 1 July of a given year, at least 50 persons are performing a paid work. However, this threshold does not apply to a legal entity performing activities in the fields of financial services, products and markets and anti-money laundering and countering the financing of terrorism, transport safety and environmental protection, in which case the legal entity is obliged to establish a procedure regardless of the number of persons who perform paid work for it.
The Whistleblowers Act sets a specific deadline for the consultation of the internal reporting procedure – it is to last between 5 and 10 days. In turn, the procedure itself enters into force 7 days after it has been made known to the persons performing the work in the manner adopted in the legal entity. The potential job applicant must be informed of the internal notification procedure with the commencement of recruitment or pre-contractual negotiations.
The procedure for internal notifications must mandatorily specify:
In addition – optionally – the procedure may also specify other aspects and, in particular, the legislator allows:
The telephone call is subject to specific requirements according to which it is to be documented in the form:
A report made verbally and over a non-recorded telephone line is to be documented using an accurate record of the call by the unit, person or entity responsible for receiving the call, reproducing the exact course of the call.
The submitter has the right to check the correction and approval of both the interview transcript and the interview protocol by signing them.
Direct meetings (at the whistleblower’s request) with the whistleblower’s consent should be documented in the form of a recording or minutes.
Legal entities that are required to establish an internal notification procedure are also obliged to maintain an internal notification register. Such register should include:
Personal data protection
The Whistleblower Act regulates in detail the protection of personal data of the whistleblower. According to the wording of the legislation, personal data and other information allowing for the identification of the whistleblower will be subject to disclosure only if so indicated by the whistleblower. However, it should be emphasised that the necessity to keep the whistleblower’s identity confidential will not be absolute.
The new rules provide for a derogation from the need to keep the whistleblower’s identity confidential when such disclosure is a necessary and proportionate obligation under the law in connection with investigations carried out by public authorities or pre-trial or judicial proceedings carried out by the courts, including in order to guarantee the right of defence of the reported person. As one argument in favour of such a solution is that the person against whom an allegation is made should also be protected. This is because there is a risk of stigmatisation of the person concerned in connection with the alleged acts.
It is worth noting that the disclosure of a whistleblower’s identity is subject to a number of safeguards, in particular the need for written or electronic notification of the intended disclosure of the whistleblower’s identity together with an explanation of the reasons for such a decision, unless such notification could jeopardise the related investigation or legal proceedings.
Regulation 2016/679 of the European Parliament and of the EU Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data and repealing Directive 95/46/EC (the “General Data Protection Regulation”) (“RODO”), includes in its scope of application personal data covered by the Whistleblowers Act. Accordingly, a legal entity, Ombudsman or public authority processing data on the premise of Article 6 sec. 1(e) of the RODO will only process data to the extent necessary to achieve the purposes of the Act and personal data not relevant to the analysis of the notification should not be collected or, if collected, should be deleted within 14 days of determining that it is not relevant to the case.
The Whistleblowers Act provides for certain derogations from the information obligation regulated by the provisions of the RODO. As a general rule, the legislator does not provide for an obligation to inform the data subject of the source of the acquisition of his or her personal data, unless the notifier does not meet the conditions for being considered a whistleblower pursuant to Article 6 of the Whistleblowers Act (at the time of the report, he or she did not have reasonable grounds to believe that the information that was the subject of the notification or public disclosure was true at the time of the notification or public disclosure and that it constituted information about a violation of the law) or he or she expressly consented to such communication.
The new rules also introduce a statutory data retention period. Personal data processed in connection with the acceptance of a notification by the Ombudsman will be retained for a period of 12 months after the end of the calendar year in which the external report was transmitted to the public authority competent to take follow-up action.
Personal data processed in connection with the acceptance of a notification and follow-up and documents related to those notifications shall be retained by the legal entity and the public authority for a period of 3 years after the end of the calendar year in which the external notification has been transmitted to the public authority competent for follow-up or follow-up has been completed, or after the proceedings initiated by those proceedings have been terminated.
Criminal sanctions
The Whistleblowers Act provides for the following criminal threat for each type of offence:
Effective date
As requested by representatives of the private and public sector giving their opinion on the legislation draft, the final version of the legislation extends the transition period during which these entities will have the opportunity to prepare the organization for the requirements of the Whistleblowers Act.
In the case of the obligation for legal entities for which at least 50 persons are performing paid work to adopt an internal procedure, as well as for legal entities carrying out activities in the fields of financial services, products and markets, anti-money laundering and countering the financing of terrorism, transport safety and environmental protection as listed in the Whistleblowers Directive – regardless of the scale of employment – these entities will have 3 months to implement appropriate solutions in accordance with the procedure provided for in the Act.
On the other hand, the Ombudsman and public bodies – regardless of the scale of employment – will have six months to implement the mandatory solutions introduced by the provisions of the Whistleblowers Act.
In view of the above, the legislation will come into force in two parts, i.e. from 25 September 2024, the majority of the provisions of the Act, including those concerning the obligations of legal entities, will come into force, and from 25 December 2024, the remaining provisions concerning the part relating to external notifications will come into force.
By Agnieszka Stefanowicz-Baranska, Agnieszka Wardak, and Aleksandra Minkowicz-Flanek, Partners, Dentons
Poland has finally implemented the EU Whistleblowing Directive. The new law will enter into force on 25 September 2024, leaving little time to adapt to the new regulations. We highlight the key privacy implications of implementing the whistleblowing procedures in Poland and outline the actions organisations need to take in the upcoming weeks.
Scope and timing
Poland has finally implemented the EU Whistleblowing Directive (EU) 2019/1937 through the Act of 14 June 2024 on the protection of whistleblowers (the “Act”).
The Act establishes rules and procedures designed to protect whistleblowers. Legal entities which, as of 1 January or 1 July of a given year, have at least 50 individuals perform paid work must implement an internal whistleblowing reporting procedure. This procedure may need to be consulted with trade unions or employee representative bodies, and employees must be informed about its implementation.
The Act will enter into force on 25 September 2024. As the Act does not provide for a transition period, organisations will need to have all necessary changes to their processes and procedures ready in less than three months from now.
Processing of personal data in connection with whistleblowing
Whistleblowing inherently involves the processing of personal data, which may include special category data and personal data relating to criminal convictions and offences, from various categories of data subjects.
These subjects include: the whistleblower; the person who is alleged in the whistleblower’s report or public disclosure to have breached the law (referred to as the “person concerned”); and third parties, such as individuals who possess knowledge about the breach, affected persons, and witnesses. Hence, data protection laws should be taken into account while designing whistleblowing programs.
Data processing occurs at multiple stages of an internal whistleblowing process within an organisation. It begins with the notification of a breach of law, followed by the recording of this notification, the initiation and conduct of an investigation, taking follow-up actions, and the subsequent retention of the case file once proceedings have concluded.
Given the sensitive nature and potentially broad scope of personal data processed while handling whistleblowing reports, organisations should diligently address the data protection requirements while adopting the requirements of the Act.
Actions to be taken to address key privacy requirements
When implementing the Act within an organisation, it is crucial to consider the key data protection requirements arising from the Act itself and other applicable data protection laws. The EU General Data Protection Regulation (the “GDPR“) will play a significant role in this context.
Organisations should undertake the following actions:
Key data protection requirements under the Act
The Act introduces certain data protection mechanisms that extend beyond the GDPR requirements. These need to be taken into account while designing and implementing whistleblowing frameworks in Poland.
Conclusions
The Act still raises concerns due to its inconsistencies and the failure to adequately address all the issues related to personal data protection, which could potentially affect compliance and the overall safeguarding of data subjects’ rights.
Given these doubts, the Polish Data Protection Authority will organise a seminar to clarify these uncertainties regarding the application of the Act’s provisions in the area of personal data protection.
As the deadline to comply with this Act rapidly approaches, we recommend that organisations meticulously review and update their data protection documentation to align with the Act and broader data protection requirements. Such proactive measures are crucial not only to meet legal obligations but also to uphold the trust and safety of all parties involved in whistleblowing processes.
By Szymon Sieniewicz, Head of TMT/IP, and Marcelina Sługocka, Associate, Linklaters Warsaw
Greenberg Traurig has advised CVC Capital Partners on its tender offer for all shares in Comarch. Clifford Chance advised Comarch’s shareholders – the Filipiak family. Oles Rysz Sarkowicz and White & Case reportedly advised other sellers.
CVC Capital Partners is a global private equity firm, listed on the Amsterdam Stock Exchange, with a network of 29 offices in Europe, Asia, and the United States, managing approximately EUR 193 billion in assets.
Comarch is a software developer with operations in more than 100 countries, on five continents. It has been listed on the regulated market of the Warsaw Stock Exchange since 1999.
According to Greenberg Traurig, “CVC Capital Partners together with the Filipiak family Mr. Michal Pruski and Ms. Anna Prokop announced their intention to launch a tender offer for all outstanding ordinary shares in the Company. The goal of the transaction is for the bidders to achieve 100 percent of the total number of votes in Comarch in order to delist the company from the Warsaw Stock Exchange and enable its further development as a private company.”
The Greenberg Traurig team included Senior Partner Lejb Fogelman, Partners Rafal Sienski, Stephen Horvath, Robert Gago, Michal Fereniec, Andrzej Wysokinski, and Pawel Piotrowski, Local Partners Michal Bobrzynski and Maciej Pietrzak, and Associates Adam Andula, Michal Kuratowski, Filip Drgas, Przemyslaw Nycz, Marta Poplawska, Mateusz Rogulski, Grzegorz Socha, Szymon Swierszcz, and Wiktor Zien.
The Clifford Chance team included Managing Partner Agnieszka Janicka, Of Counsels Nick Fletcher and Marcin Bartnicki, Counsels Jaroslaw Lorenc, Tomasz Szekalski, and Tomasz Derda, and Associate Marcin Waszynski.
Editor’s Note: After this article was published, Oles Rysz Sarkowicz confirmed its involvement to CEE Legal Matters. The firm’s team included Partner Wieslaw Oles, Of Counsel Joanna Hakluk, Attorneys at Law Kamil Kania and Tomasz Ferenc, and Process Coordinator Rafal Dyrda.
Wardynski & Partners has advised ACP Partners on the sale of the LivinnX dormitory originally owned by the Golub Group to Xior Student Housing.
ACP Partners is an independent asset management firm.
Xior Student Housing is the first Belgian public company specializing in the student housing sector, with operations in the European market, including Belgium, the Netherlands, Spain, Portugal, Poland, Germany, Denmark, and Sweden.
According to Wardynski & Partners, “within two years of taking control of the object company that owned the dormitory, ACP Partners carried out a series of collateral enforcement actions and a comprehensive restructuring of the project, and eventually sold the LivinnX dormitory in Krakow.”
The Wardynski & Partners team included Partners Lukasz Szegda, Michal Nowacki, Jakub Macek, Lukasz Sliwinski, Maciej Zych, and Michal Glinski, Counsels Jaroslaw Karlikowski and Sylwia Moreu-Zak, Senior Associate Aleksandra Sudak-Przybyla, Associate Mateusz Chelstowski, Junior Associates Patryk Jackiewicz, Adam Strzelecki, Agnieszka Kubowicz, and Aleksandra Szczepinska Lawyers Mateusz Tusznio and Radoslaw Wisniewski, and Legal Interns Amelia Niemiec, Klaudiusz Mikolajczyk, and Gabriela Kuszewska.
Wardynski & Partners did not respond to our inquiry on the matter.
White & Case has advised PKO Bank Hipoteczny on its PLN 500 million issuance of mortgage-covered bonds due July 4, 2028, with Erste Group and PKO Bank Polski acting as joint bookrunners.
According to White & Case, “the transaction represents the second issuance in 2024 of PLN-denominated covered bonds under PKO Bank Hipoteczny’s EUR 4 billion International Covered Bond Programme. The bonds are listed on the Luxembourg Stock Exchange and will be listed on the Warsaw Stock Exchange.”
Earlier in 2024, White & Case advised PKO Bank Hipoteczny on its PLN 1 billion issuance of mortgage-covered bonds (as reported by CEE Legal Matters on April 5, 2024). The firm also advised PKO Bank Hipoteczny on all three of its 2023 issuances of PLN-denominated covered bonds under its International Covered Bond Program (as previously reported by CEE Legal Matters on November 8, 2023, July 4, 2023, and February 15, 2023).
The White & Case team included Warsaw-based Partner Marcin Studniarek, Local Partner Bartosz Smardzewski, and Associate Michal Truszczynski as well as further team members in Dubai and London.
Gessel has advised Cavatina Holding on a prospectus-based public offering of series P2024A bonds with a total value of PLN 25 million.
According to Gessel, “Cavatina Holding executed the first bond issue under the third public bond issue program of up to PLN 150 million conducted on the basis of the base prospectus approved by the Polish Financial Supervision Authority on April 25, 2024. The function of issue manager within the framework of the 3rd bond issue program of Cavatina Holding S.A. is performed by Noble Securities S.A. In addition, Dom Maklerski BDM S.A. and IPOPEMA Securities S.A. were part of the distribution consortium of the P2024A series bonds.”
Earlier in 2024, Gessel advised Cavatina Holding on its bond program, prospectus, and third issuance (as reported by CEE Legal Matters on May 7, 2024) as well as on its prospectus-free bond issuance program with a maximum value of PLN 50 million and related public issuance of M2024A series bonds with an aggregate value over PLN 21.5 million (as reported by CEE Legal Matters on April 5, 2024). Back in 2022, Gessel also advised Cavatina Holding on its PLN 60 million public offering of P2022B and P2022C series bonds (as reported by CEE Legal Matters on July 25, 2022) and its PLN 16.5 million public offering of series P2022D bonds (as reported by CEE Legal Matters on November 30, 2022).
The Gessel team included Partner Krzysztof Marczuk, Managing Associate Magdalena Szeplik, Senior Associate Jakub Rowicki, and Associate Dawid Marciniak.
Gessel did not respond to our inquiry on the matter.