Establishing a branch office in Poland by a foreign entrepreneur
Autor: Agnieszka Wesołowska
A foreign entrepreneur may establish a branch office in Poland. The issue is regulated by the provisions of the Act on freedom of economic activity.
In the meaning of its provisions, a foreign entrepreneur is i.a. a legal person with their registered seat outside Poland, which performs their business activity outside Poland. Such an entrepreneur may perform their economic activity in the territory of Poland in the form of a branch office (on a reciprocity basis). EU entrepreneurs may act in Poland on the same basis as Polish citizens, in accordance with the applicable provisions of the Act on freedom of economic activity.
A foreign entrepreneur who creates a branch office in Poland may perform their economic activity solely in the scope of their activity performed abroad. They are also obliged to establish in the branch office a person empowered to represent them in Poland.
Registration of the branch office
In order to create a branch in Poland, a foreign entrepreneur is obliged to file an application for registration of an entity in the register of entrepreneurs - a branch of a foreign entrepreneur to the National Court Register on a dedicated form with the required attachments. The application shall be submitted with a stamp duty of PLN 600, which covers also the obligatory cost of publication of the branch office registration in the Official Court Gazette and Economic Monitor.
The foreign entrepreneur shall:
1. specify their seat in the territory of Poland (address),
2. specify the name, surname and address of the person authorized to represent them in a branch within the territory of Poland;
3. attach a notarized specimen signature of the person referred to above;
4. if the entrepreneur operates under the Deed of Incorporation, Articles of Association or Bylaws – submit relevant copies of the aforementioned documents to the registry records of the branch office along with a certified translation into Polish;
5. if the entrepreneur operates based on an entry in a register – submit a copy of this entry to the registry records along with a certified translation into Polish.
Together with the application for registration the entrepreneur shall submit to the appropriate offices:
1. an application for an entry into the National Official Business Register (REGON) for statistical purposes;
2. an identification notification on granting a tax identification number (NIP);
3. an identification notification as a social insurance contributions payer, if the branch office has employees.
The branch office shall also open a bank account.
Any further tax registrations for VAT, EU VAT and CIT (corporate income tax) shall be made afterwards and supplemented in the register, if applicable for the branch activity in Poland.
Performing activity in Poland
The foreign entrepreneur may commence their activity in Poland within a branch office upon the effective registration of the branch in the Polish register of entrepreneurs and fulfillment of the conditions specified in the applicable provisions of the abovementioned Act.
In accordance with the applicable legal provisions, the entrepreneur establishing a branch office in Poland shall be obliged to use the original name of the foreign entrepreneur as the designation of this branch office along with the legal form of the foreign entrepreneur translated into Polish and the phrase “branch office in Poland” in Polish (i.e. “oddział w Polsce”).
The entrepreneur shall also notify the Minister of Economy of any changes of the actual and legal status related to its liquidation abroad or its loss of entitlement to perform economic activity, within 14 days following the occurrence of the said circumstances.
The branch is also obliged to keep separate accounts of the branch office in the Polish language pursuant to the Polish Accounting Act, as these provisions apply to foreign entities, branches and representative offices of foreign companies, within the meaning of the Act on freedom of economic activity.
The manager of a branch office of a foreign entrepreneur should submit the branch's annual financial statements to the relevant court register. The annual financial statement of a branch office is considered to have been approved if the financial statement of the foreign entrepreneur covering the data of that branch office has been approved.
Personal data processing
The establishment of a branch office in Poland may be related to an obligation to fulfill the requirements provided for in the Act on personal data protection.
This Act explicitly stipulates that, as regards to private legal entities, its provisions shall apply to legal persons and organizational units not being legal persons, if they are involved in the processing of personal data as a part of their business or professional activity or the implementation of statutory objectives, provided that they have their registered seat in the territory of Poland or in a third country (outside the European Economic Area), if they are involved in the processing of personal data by means of technical devices located in the territory of Poland.
In consequence, the Act on personal data protection shall not apply to legal entities with their registered seat in countries that are members of the EEA (outside the territory of Poland) and not having a branch or a representative in the territory of Poland, even if they are processing personal data in relation to their activity by means of technical devices located in the territory of Poland. In this respect, such entities shall be subject to the jurisdiction of the country in which they have their seat. However, a legal entity incorporated in an EU member state, which has created in Poland a branch office, may be subject to the provisions of the Polish Act on personal data protection and become a personal data administrator provided it decides on the purposes and means of the processing of personal data in its business activity. And as such it shall be obliged to register the personal data filing system at the Polish General Inspector for Personal Data Protection (GIODO). It is also worth mentioning that, according to the Act, a personal data filing system shall mean “any structured set of personal data which are accessible pursuant to specific criteria, whether centralized, decentralized or dispersed on a functional basis”. The registration shall be made either in paper form or through the Internet platform of GIODO (with the use of a safe electronic signature). The registration (as well as any further changes in this respect) is free of charge.
In view of the above, to consider that a branch office of a foreign entrepreneur is the administrator of personal data processed in Poland and in consequence subject to the provisions of the abovementioned Act, it is indispensable to examine whether this branch office is decisive on the purposes and means of the processing of personal data in its business activity. If it is the exclusive right of a foreign entrepreneur and a branch does not have in this respect any decision-making power, it should be considered that the administrator is a foreign entrepreneur and as such is subject to the jurisdiction of the state of its registered office.