Security interest law in Poland

Guarantees

1. Can an intercompany guarantee be granted?

1.1 Upstream?

Yes

1.2 Downstream?

Yes

1.3 Lateral?

Yes

2. Can a guarantee be given under foreign law (e.g. English law)?

Yes

3. Any special arrangements (e.g. to deal with transfer pricing/corporate benefit)? 

Corporate benefit. 
Financial assistance. 
Tax issues.

Security

4. Can a security interest be granted in the following type of asset?

4.1 Real property

Yes

4.2 Shares (privately held)

Yes

4.3 Shares (marketable securities)

Yes

4.4 Receivables

Yes

4.5 Bank account

Yes

4.6 IP/Trademark

Yes

4.7 Equipment/Plant/Machinery

Yes

4.8 Inventory

Yes

4.9 Insurance

Yes, pecuniary claim.

4.10 Rights under a contract

Yes, pecuniary claim.

5. Can security interests be granted to a foreign lender?

Yes

6. Can multiple security interests be granted over the same asset?

Yes, for mortgages and pledges. 
No, for assignments.

7. Can a security interest be granted to secure liabilities of a holding company, a subsidiary or any other affiliate?

Yes, but may need to consider corporate benefit/financial assistance issues.

Perfection

8. In order to be enforceable against third parties, must a security interest be?

8.1 Notarised?

Yes

8.2 Registered?

Yes, registered pledges and mortgages.

8.3 Other?

Notification will be required, in particular for: 
Pledge over shares. 
Financial pledge over bank accounts. 
Assignment.

9. Does registration in most cases protect the secured creditor against the debtor’s subsequent dealings with the secured asset?

Yes, for registered pledges. 
No, for mortgages, but mortgages will encumber real estate despite any change of owner.

10. Is there any stamp or similar tax or duty payable on the security document? 

Notarial fees, court fees and stamp duty.

Enforcement

11. For a security interest to be legally enforceable which items must be filed as part of the registration or notarisation process?

11.1 Entire security agreement?

Yes, for certain types such as mortgages and registered pledges.

11.2 Names of pledgor and pledgee?

Yes

11.3 Description of secured asset in general terms?

Yes

11.4 Description of each individual secured asset?

Yes, apart from registered pledges over a collection of rights and movables.

11.5 Documents concerning ownership of secured asset?

No

11.6 Documents concerning debt in respect of which the asset is being secured?

No

12. Can a right to enforce security arise: 

12.1 When the secured debt is unpaid and due?

Yes

12.2 When there is some other breach of the pledge/security agreement?

Yes, but generally after the acceleration of debt.

12.3 When the debtor becomes insolvent?

Yes, but in certain cases the acceleration of debt may be required.

13. Can the creditor enforce its security interest by taking possession of the asset and selling it without court assistance?

Yes, for registered pledges and financial pledges. 
No, for mortgages.

14. Is an instrument for direct enforcement necessary/available/market practice?

Such security interests as registered/financial pledge or assignment allow for direct enforcement.

15. Are powers of attorney to the secured party used to facilitate a sale of secured assets in an enforcement situation?

No

16. If a sale is permitted without court assistance does it have to be made by public auction?

Yes, for a registered pledge. 
No, for a financial pledge.

17. Can a transfer of all or part of the debt be made without affecting the security over the assets?

Yes, but additional arrangements and court fillings may be necessary.

18. Is there anything else of which a lender should be aware as unusual or particularly difficult?

N/A