Planned implementation of CRD VI and its impact on cross-border lending in Poland | In Principle

Legislative work on transposing the CRD VI directive into Polish law is entering a decisive phase. The new regulations will bring about a fundamental reform of many aspects of how banks operate. However, the directive’s impact on the operations in Poland of banks from outside the European Union and on cross-border lending transactions involving them may prove to be a real revolution.

Under current law, there is no harmonised legal framework regulating the cross-border lending activities of non-EU banks. Prior to adoption of the CRD VI directive,[1] EU law did not regulate how banks from third countries conducted business within the Union. This led individual member states to develop divergent approaches in this regard.

Some EU jurisdictions, such as Ireland and Luxembourg, expressly permitted the presence of third-country banks in their banking markets, while others, such as France and Italy, unequivocally prohibited such activities.[2]

Current situation—Poland’s place in the European regulatory mosaic

Although the Polish Banking Law requires non-EU banks (referred to in the statute as “foreign banks”) to open a branch if they wish to operate in Poland, and the requirements for establishing a branch are similar to the regime for setting up a domestic bank,[3] Polish market and supervisory practice has permitted non-EU banks to operate within Poland without the need to open a branch for participation in lending transactions based on “reverse solicitation.”[4] However, this principle was never codified as an express exception in the Banking Law, but functioned as an unwritten supervisory and market practice, often by analogy to the exception provided for in the MiFID regime[5] for investment services.[6] The lack of codification means that the boundaries of this exemption have remained blurred.

It is this state of affairs that has made Poland de facto a jurisdiction open to cross-border financing. Consequently, the Polish credit market has for years attracted a wide range of international lenders, including banks from outside the EU. British and American banks have regularly participated in syndicated loan transactions as direct lenders, and less frequently as agents or security agents. In leveraged finance and acquisition finance transactions, they have operated partly through EU subsidiaries and partly directly as members of syndicates. Asian banks have also been active in Poland, primarily involved in larger syndicated transactions and infrastructure and energy projects, and increasingly in defence finance. It is also telling that currently there is not a single branch of a non-EU bank registered in Poland (compared to 35 branches of EU credit institutions).

Art. 21c CRD VI—potential discrepancies in Polish implementation

Art. 21c CRD VI introduces the first comprehensive harmonisation of EU regulations in this area. It establishes the general rule that undertakings established in a third country and intending to carry out banking activities within the territory of a member state must establish a branch within that member state and obtain authorisation from the competent supervisory authority to commence or continue such activities. In other words, EU law has introduced a general prohibition on the direct conduct of banking activities within the EU by entities established outside the EU without the intermediation of a branch or subsidiary licensed as a credit institution.

Art. 21c (2) and (4) CRD VI provide for four exceptions to the above rule; the prohibition does not apply if:

• The client or counterparty requests provision of a service or conduct of business at their own exclusive initiative, without any prior activity by the third-country entity aimed at acquiring the client (reverse solicitation exemption)
• The client is an EU credit institution (interbank exemption)
• The client or counterparty is an undertaking belonging to the same group as the undertaking established in a third country (intragroup exemption), or
• The activity relates to investment services and investment activities, including ancillary services, carried out under MiFID II by a third-country entity authorised to provide such services in accordance with the relevant regulations (MiFID services exemption).

Although at first glance the draft implementation of Art. 21c CRD VI into Polish law via Art. 40 of the Banking Law appears to be identical to the relevant provision of the directive, certain structural differences may give rise to significant interpretative doubts. From the perspective of cross-border lending transactions, the most significant difference lies in the placement of the exemption concerning “services, activities or products necessary or closely related” to the service originally requested. Art. 21c(3) CRD VI places this exemption as the second sentence of the provision governing marketing restrictions at the client’s own initiative, which means that it is contextually linked to a situation where the client itself has approached the third-country entity. Meanwhile, the proposed Art. 40(1)(3) of the Banking Law states this exemption as a separate, standalone condition waiving the requirement to establish a branch, independent of the “client’s own initiative” scenario. This change may have significant substantive implications. Namely, under Polish law, the exemption for closely related services may operate more broadly and apply regardless of whether the client initiated contact with the third-country entity.

Gold-plating in relation to grandfathering provisions

Following Art. 21c(5) CRD VI, the proposed Art. 47 of the Banking Law introduces an exemption from the prohibition on cross-border banking activities within the EU for contracts concluded before 11 July 2026.

CRD VI applies only a bright-line temporal test for this exemption: any existing agreement concluded before the cutoff date is covered by the protection. But the proposed Polish implementation goes further by adding a substantive condition, that the customer must have acquired “specific rights” (skonkretyzowane prawa) under the contract. This concept is non-standard, vague, and alien to CRD VI, which uses the broader term “acquired rights.” This raises the important question of whether the Polish implementation unduly narrows the protection provided for in EU law. If so, this could pose a problem for the correctness of the implementation, because the directive protects every existing contract, whereas the Polish act would protect only contracts under which “specific rights” have been acquired.

The proposed Polish implementation also expressly excludes from transitional protection framework agreements, preliminary agreements, and other contractual provisions only obliging the parties to conclude further agreements. This exclusion is an autonomous choice by Polish lawmakers with no basis in the text of the directive, and as such may be regarded as “gold-plating,” i.e. national implementation adding restrictions beyond the EU standard.

From a market perspective, this provision has significant practical implications. In the credit market, multi-stage structures are commonly used in which signing of the actual credit agreement is preceded by a framework agreement, a letter of intent, or a term sheet. The Polish implementation may deprive such structures of transitional protection, even if negotiations were at an advanced stage or the parties were in fact bound by an obligation to conclude a credit agreement before the cutoff date.

Summary

Entry into force of the provisions implementing Art. 21c of the CRD VI directive in Poland marks a significant change in the conditions under which non-EU banks will be able to participate in lending transactions on the Polish market. The existing model, based on an unwritten practice allowing cross-border activity without a local presence, based on the principle of reverse solicitation, will be replaced by a formalised regime of structural requirements.

The reverse solicitation exemption, which has been relied on for the activities of the vast majority of non-EU banks in Poland, will remain available, but its scope will be clearly narrowed. In practice, this means a need for more careful documentation of how contact with the client was established, a move away from active marketing, and detailed examination of whether each transaction falls within the exemption. The risk of misclassification will rest with the third-country entity.

Banks from outside the EU will need to review their business models. Possible avenues for adaptation include:

• A more cautious use of the reverse solicitation exemption, with careful documentation of how the relationship with the client or counterparty was established
• Using the interbank or intragroup exemption, where the structure of the transaction permits
• Channelling transactions through EU subsidiaries (credit institutions or their branches in Poland)[7]
• Establishing a branch in Poland and obtaining authorisation from the Polish Financial Supervision Authority.

Given the deadline by which operational structures must be adapted (i.e. 11 July 2026), the complexity of the processes for obtaining supervisory authorisations, and the time required to restructure the transaction portfolio, entities involved in the Polish credit market should promptly commence adaptation measures.

Meanwhile, with regard to ongoing transactions, the transitional provisions protecting agreements concluded before 11 July 2026 have been phrased in the Polish implementation in a manner that is potentially narrower than in CRD VI itself. The additional condition of “specific rights” and the express exclusion of framework or preliminary agreements mean that market participants who had hoped that existing structures would be covered by transitional protection should carry out a detailed legal analysis of each agreement. Multi-stage structures, preceded by a framework agreement or term sheet, may not benefit from grandfathering, even if the negotiations were finalised before the cutoff date.

Dr Wojciech Kobyliński, attorney-at-law, Banking & Project Finance practice, Wardyński & Partners