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Anna Smagowicz-Tokarz

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On 12/11/2014 the Council of Ministers adopted a draft of the Regulation on state aid granted for enterprises operating under a permit to conduct a business activity in special economic zones. The Regulation should take effect by the end of 2014. The amended provisions of the Regulation adjust the rules of granting regional aid for investments in special economic zones in Poland (SEZ) in the years 2014–2020 to the community provisions provided for in the Commission Regulation (EC) no. 651/2014 of 17 June 2014. 

Special economic zones (SEZ) in the mazowieckie province

As compared to the previous rules, the key changes concern mainly the granting of aid in the mazowieckie province, currently referred to as the "c" zone, which means that the aid can only be granted to large enterprises already involved in business activity in the mazowieckie province to support them to make initial investment in a new business activity. Such a new business activity must belong to a class other than that of the existing activity in the Polish classification of economic activities (PKD).

The definition of "new investment" in the Special Economic Zone in Poland

In addition, as a result of the amended provisions the definition of a new investment connected with purchase of an enterprise will change and the condition demanding the purchase of assets from third parties which are not related to the purchaser does not apply when a small enterprise is purchased by a family member of the original owner or by a person employed with this enterprise. 

Large investment project – criteria

The Regulation has also introduced an additional criterion for recognising the investment as a large investment project. In the context of the new rules, in addition to the unchanged requirement of EUR 50 million, the size of the investment is to be analysed at the group level in the same sub-region specified at the third level (NTS 3). 

As a result of the changes a new aid map and a formula for calculating the maximum aid amount for a large investment project were introduced. Thus, an investment project will be classified as large if its eligible costs exceed EUR 50 million. In addition, the term "large undertaking" was specified by introducing the obligation that the size of an investment is analysed from the group level in the same sub-region specified at the third level (NTS 3). The new provisions include additional conditions for granting investment aid to an undertaking to make fundamental changes to the production process or to diversify the existing establishment.

When individual aid requires notification and consent of the European Commission

The Regulation also provides for situations where the aid constitutes individual aid and, as such, is subject to the obligation to file a notification and receive a permit  from the European Commission according to the "Guidelines on Regional state aid for 2014–2020". This applies whenever:

  • the expected aid for an investment project with expenses over EUR 100 million is higher than the amount calculated according to the relevant formula;
  • the enterprise ended its business activity in the European Economic Area within a period of two years before filing the application for aid and this activity was classified under the same class, or when it plans, on the day of filing the application for aid, to end such activity within two years after the end of an investment which requires a permit 

The aforementioned change included in item 2) gives rise to the biggest discrepancies in interpretation and it is expected that this will cause complications with the transfer of investment projects not only  within the European Economic Area but also within individual countries. It cannot be excluded that the end of a business activity within the European Economic Area in the meaning of the amended EU provisions will imply not only a relocation from one country of the European Economic Area to another but also a relocation within  one area or even province of a single country.

It is a common assumption that the changes of rules relating to the functioning of Special Economic Zones (SEZ) in Poland, which result from Commission Regulation (EU) no. 651/2014 of 17 June 2014 and the Guidelines of the European Commission on regional state aid for 2014–2020, may cause a decrease in the interest in the launching of investment projects in theSpecial Economic Zones .

In case of further questions, please do not hesitate to contact us. Our tax advisers working for Rödl & Partner offices in Gdansk, Gliwice, Cracow, Poznan, Warsaw and Wroclaw will gladly review your tax documentation related to your investment in the Special Economic Zones in Poland and propose a solution allowing minimising your tax risks. We are also at your service to answer any other questions you may have with respect to tax advisory services in Poland. Our offices offer legal support with conducting business within a SEZ and with legal advisory services in Poland in any other aspects of your operations.