Polish crypto license for foreign company
It has been over a year now since new regulations of Polish VASP Register were introduced to Polish law. My Law Firm in Poland significantly expanded experience and knowledge in Polish AML law area. In a natural way AML legislation has become my main specialization with particular emphasis on virtual currency business activity. In this article I will bring up very interesting subject – if foreign company may obtain cryptocurrency license in Poland. To be more specific if foreign entity may be entered into Polish Virtual Asset Service Providers Register. This matter has been already mentioned but I would like to reinforce my position. If you are not familiar at all with Polish cryprocurrency regulation, I encourage to check FAQ about VASP onboarding in Poland.
Polish AML Act
First of all, the Polish AML Act does not provide answer whether the foreign entity may or not be enclosed in Polish VASP register. Moreover, in accordance with Article 5 of the Act of 6 March 2018 on the rules of participation of foreign entrepreneurs and other foreign persons in economic activity on the territory of the Republic of Poland, a foreign entrepreneur from a Member State may temporarily provide services without the need to be entered in the Polish Commercial Registers (the National Court Register or the Central Register and Information on Economic Activity). Therefore, business activity of the foreign company may be only occasional (temporal) in Poland. Entry into register of regulated activity in Poland is contradictory to temporal activity. It is definitely opposite, as it emphasis daily and ongoing business undertaking in Poland. For this reason, for long time in my opinion foreign entity could not be entered into Polish VASP Register.
Polish Regulator (“GIIF”) position
Of course, I wanted to explore official position of Polish Regulator (GIIF) in regard of entry foreign entity into crypto register in Poland. One of the Estonian company request from me official information in that regard. I received following interpretation about Estonian entity, which was interested in entry into Polish VASP Register:
in response to your email of XX.XX.XXXX, please be advised as follows.
The provisions of the Polish law (including the Anti-Money Laundering and Countering the Financing of Terrorism Act of 1 March 2018 (Journal of Laws 2022, item 593, as amended)) have a territorial scope in the territory of the Republic of Poland. The regulations enacted by the Polish Parliament are applicable in the territory of the Republic of Poland and it is difficult to enforce the obligations under the Polish regulations against entities that do not have their registered office in the territory of the Republic of Poland or branches of such entities. The provisions you have quoted confirm that only entities operating in Poland (e.g.: having registered seats, branches) are recipients of Polish laws.
Above letter from GIIF convinced me and my original position that foreign company can not be entered in Polish register of virtual currency activities, unless such company has official branch in Poland within the meaning of Polish Corporate Code (registered in Commercial Register).
Loophole in process of registration in VASP
I spoke recently with official who handles the process of entrance entities into Polish VASP Register. I would like to kindly remind you that upon delegation of Polish Ministry of Finance, the holder of Polish virtual currencies business activity register is Tax Office in Katowice not GIIF. Only Tax Office in Katowice is the holder of VASP Register in whole Poland, regardless of the seat of Polish company. Therefore personnel of Tax Office make analysis of the application and issue decision on entry into Polish crypto register. Above mentioned tax official shared with me very clever “trick” how entry into Polish VASP Register of foreign company might be possible.
In order to entry foreign company into Polish VASP Register, it has to obtain “NIP” number. “NIP” is Polish Tax Identification number. In some circumstances it can be granted also to foreign entities. According to Polish tax regulations, legal persons and other organisational units, regardless of the country in which they are registered, are subject to obtain NIP if they are taxpayers or tax agent on the basis of separate acts. Thus, if a foreign company is a taxpayer or tax agent under any Polish tax act, it is obliged (in our scenario entitled) to obtain a Polish Tax Identification Number.
On short notice, I have come up with multiple scenarios how foreign company may obtain Polish TIN.
Requirements of entry foreign entity into Polish VASP
In order to obtain a Polish “NIP”, foreign company has to submit official application to the appropriate Tax Office. The application should be accompanied by the company’s corporate documents:
- Articles od Association of foreign company;
- Excerpt from the Commercial Register (or other documents, which encloses company name, incorporation date, name of the register, register number, directors).
Above documents have to bear Apostille stamp and be sworn translated into Polish language. Of course application to obtain Polish Tax Identification Number has to be well justified. Without proper grounds of the application, the Tax Authority will reject the application for obtaining Polish TIN.
After obtaining Polish Tax Identification Number road to entry foreign company into Polish VASP register is open. Of course foreign company and its director or directors has to comply with all requirements stipulated in Polish AML Act ( same as Polish entity). These include also formal requirements such as obtaining by director PESEL number and Polish Trusted Profile