The Foreign Exchange Law has remained unchanged for many years. However, foreign exchange permits, though rarely required anymore, as well as reporting obligations, should still be kept in mind. To a large extent, foreign exchange transactions are freely allowed, but this does not mean that they are completely liberalised and not monitored by the National Bank of Poland.
The Foreign Exchange Law of 27 July 2002 regulates foreign exchange transactions with foreign countries and foreign exchange trading in Poland, as well as the business of buying and selling foreign exchange assets and acting as an agent in buying and selling of foreign exchange assets. Foreign exchange assets are defined as including legal tender, currency, bills of exchange, cheques, money orders, shares, bonds, stock certificates, etc.
The obligations under the Foreign Exchange Law differ depending on one’s status as a resident or non-resident. More lenient rules apply to transactions with non-residents having their residence or registered office in the European Union, the OECD or the European Economic Area.
A resident is a person residing in Poland or a business with its head office in Poland. Residents are required to obtain an individual foreign exchange permit if they intend to:
- Open an account at a bank in a third country (i.e., other than in the EU, the OECD or the EEA)
- Acquire shares of companies with their head office in third countries, participation units in funds from third countries, or debt securities issued by non-residents of third countries
- Acquire claims from non-residents from third countries, or sell debt securities or claims in third countries.
Non-residents from third countries must apply for an individual foreign exchange permit, for example, for the purpose of selling or settling in Poland short-term debt securities and claims and other rights, unless they acquired them in Poland.
A detailed list of activities not requiring an individual foreign exchange permit is provided in the Regulation of the Minister of Finance of 20 April 2009 on General Foreign Exchange Permits. The regulation contains blanket waivers from:
- Restrictions on foreign exchange transactions with foreign countries
- Obligations related to export or import of foreign exchange assets or Polish means of payment
- Obligations related to domestic foreign exchange settlements.
The full list of obligations is contained in the Regulation of the Minister of Development and Finance of 9 August 2017 on Providing the National Bank of Poland Data Necessary for Preparation of the Balance of Payments and International Investment Position.
Residents engaging in transactions with non-residents (if the resulting value of assets and liabilities in total exceeds the amounts specified in the foregoing regulation) are subject to the following information and reporting obligations to the National Bank of Poland.
A resident who holds stock, shares, securities, money-market instruments, derivatives or participation units in investment funds issued by non-residents should report to the NBP. Reporting obligations also apply to residents issuing debt securities or other money-market instruments if the issue is made in a foreign market or at least part of it was subscribed by non-residents.
Regardless of the value of the shares, residents holding a minimum of 10% of votes in foreign entities are required to notify the NBP. Also, in the opposite situation, where foreign entities hold a minimum of 10% of votes in Polish companies, the Polish companies are required to notify the NBP accordingly.
Information about the amount of claims from non-residents or liabilities to non-residents, including those resulting from commercial activities, loans, credit, or finance leases, should also be submitted to the NBP.
The reports to the NBP are submitted in accordance with templates provided, with explanations, on the NBP website.
Under the Fiscal Penal Code, a fine or even imprisonment of up to one year is foreseen for violation of foreign exchange obligations.
Danuta Pajewska, attorney-at-law, Aleksandra Nowacka, attorney-at-law, Capital Markets & Financial Institutions practice, Wardyński & Partners