Brussels, 27 June 2007
The European Commission has decided to send a formal request to Poland to amend its Act on Special Powers of the Treasury and their Exercise in Companies of Special Importance for Public Order or Public Security. This law, together with its implementing ordinances, grants special rights to the Polish state in currently fifteen Polish companies considered of special importance. These special rights consist of the right to veto certain key management decisions, which makes it substantially less attractive for other EU investors to acquire the company’s shares. In the Commission’s view such a disincentive to investment from other Member States violates EC Treaty rules on the free movement of capital (Article 56) and the right of establishment (Article 43). The Commission’s request takes the form of a reasoned opinion, the second stage of infringement procedures under Article 226 of the EC Treaty. Should the Polish authorities not take satisfactory steps to remedy the infringement of Community law within two months of receiving the reasoned opinion, the Commission may decide to refer the case to the European Court of Justice.
The Act on Special Powers confers on the Polish state special rights in fifteen Polish companies in several sectors. These include the right to veto key management decisions: disposal of core assets, dissolution of the company, transfer of seat abroad, change of activity etc., and the right to appoint an observer in each company, who has access to documents related to the above decisions and may at the same time be a member of the management board. Two implementing ordinances list the companies concerned and define the role of the state observers. The fifteen companies currently concerned operate in important sectors of industry, including oil, gas, electricity, mining, audiovisual and railways. They are leading companies in those sectors in Poland, and in some cases also in a broader regional context.
The Commission takes the view that the above provisions of the Act on Special Powers of the Treasury and their Exercise in Companies of Special Importance for Public Order or Public Security, together with its implementing ordinances, are incompatible with Community law on the freedom of capital movement and the right of establishment guaranteed by Articles 56 and 43 of the Treaty respectively.
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