State Plan - there is a mandatory state pension plan which usually has no impact on a transaction (unless the contributions are not paid or there is a major dispute with the local regulator, the Social Security Office, which happens rarely).
Additional Plans - there are two types of additional pensions plans: Employees’ Capital Plans ("ECP") and Employee Pension Programs ("EPP"). As a rule, having an ECP is obligatory for employers (with some minor exceptions). It is co-financed by the employer (the minimum statutory employer's contribution to the ECP is 1.5% of the employee's remuneration), the employee (the minimum contribution is 2% of the employee's remuneration) and the state (welcome one-off and annual fixed payments). ECPs were gradually being implemented into all Polish companies, depending on headcount. Currently, as a rule, all employers must have an ECP set up. As regards an EPP, it is voluntary for employers. It is financed by the employer only (the minimal statutory employer's contribution to the EPP is 3.5% of the employee's remuneration) and employee contributions are voluntary. Under certain conditions, employers operating an EPP are exempted from the duty to set up and operate an ECP. Currently, the establishment of an EPP by the new employer does not alone exempt it from the duty to establish an ECP.
Where there are additional pension plans, the consequences of a transaction depend on the type of transaction and the type of plan. Moreover, the regulations in this area are unclear and there is no established practice yet. Therefore, such issues should be assessed on a case-by-case basis.
As a rule, in the case of a merger (or other transaction resulting in a so-called universal succession of rights and obligations) the additional pension plans are likely to transfer to a surviving entity.
As a rule, in other transactions (e.g. transfer of employees due to transfer of functions and/or assets) the additional pension plans do not transfer to the new employer automatically. In addition, it is widely accepted that participation in an ECP does not constitute part of employment conditions. Therefore, there is no automatic transfer of the employee's right to participate in an ECP. However, subject to some minor exceptions, all employers are now required to have an ECP. The provisions of Polish law do not determine the deadline for setting up an ECP for new employers in the case of a transfer of employees. It is recommended an ECP is set up as soon as possible to limit the gap in payment of contributions in respect of transferred employees.
As regards an EPP, it may transfer automatically to the new employer in the case of a transfer of the whole undertaking (therefore, in some cases, the new employer may temporarily operate two EPPs simultaneously). An EPP does not transfer automatically to the new employer in the case of a transfer of part of an undertaking. However, participation in an EPP constitutes part of an employee's employment conditions, so the new employer may be obliged to offer relevant compensation for the loss of participation in the EPP or cancel this EPP entitlement in accordance with relevant procedures (especially if the employees are transferred from an employer having an EPP to an employer having only an EPC financing minimal statutory employer contributions).