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UKNF Statement on press conference of Deputy to the Sejm of the Republic of Poland Krzysztof Bosak in relation to Kernel delisting

Modification date:

Following a press conference of Deputy to the Sejm Krzysztof Bosak which took place at the Sejm on 29 November 2023 in regard to the application of Kernel Holding S.A. (hereinafter: ‘Kernel’) for authorisation of delisting, the UKNF notes that the claims expressed by Krzysztof Bosak during the conference are false and infringe the good name of the KNF Board and the Chair of the KNF Board (quotation: ‘The scandal consists in the fact that the Polish authorities responsible for capital market, i.e. the President of the GPW and the Chair of the KNF Board do absolutely nothing about it. The KNF Board and the GPW have the tools to block such actions but they do nothing.’)

Over the last months, the UKNF has made  a public statement on the delisting procedure several times, including on the ongoing administrative procedure concerning Kernel delisting (in the form of communications published on the KNF website as well as positions and comments expressed in the media). The UKNF has pointed out multiple times that considering the interest of market participants, including investors, the UKNF is taking firm action to thoroughly examine all the aspects of the application for authorisation of delisting of Kernel shares and to clarify the issues regarding the last issue of the company’s shares. In addition to requesting the company to submit explanations and documents, the UKNF is also in constant contact with Commission de Surveillance du Secteur Financier in Luxembourg, (hereinafter: ‘CSSF’) in connection with investors’ allegations about the issue of Kernel shares and the planned delisting. The UKNF is in ongoing contact with the CSSF and is using all the measures available under EU regulations to resolve this matter, including the allegations made by Polish investors in their complaints. 

During the procedure, in late August and early September, Kernel conducted a  public offering of shares addressed to qualified (professional) investors, which, under the regulations, does not require preparation of a prospectus. 

Following the complaints received over the last months by the KNF Board about the public offering of shares carried out by Kernel in late August and early September, the UKNF took appropriate actions towards Kernel and notified the CSSF, as the authority competent to take supervisory actions in relation to Kernel. 

The KNF Board will make the decision on the application after the circumstances of the case are clarified and after a detailed analysis of whether the requirements for delisting laid down in the Act on public offering have been fulfilled.

Kernel is a company with its registered office in Luxembourg, and for several years has been listed on the Warsaw Stock Exchange (GPW). In the first half of 2023, Kernel decided to delist its shares from the GPW, which decision required, under the Polish regulations, the majority shareholder to announce a tender offer for the sale of shares by all the other shareholders, and the company's competent body to adopt a resolution. The majority shareholder announced a tender offer for the sale of shares at a price that is determined under the Polish laws based on average stock exchange prices from previous months. The decision to delist the company from the GPW was taken by Kernel board of directors (management body) in accordance with the legal order of the country where the company has its registered office, while in the case of Polish companies a resolution of the general meeting of shareholders taken by a qualified majority of votes is required. 

In April 2023, the UKNF published a Position which explained that in the case of Kernel, in relation to the resolution on delisting, the law of Luxembourg applies, as follows from the EU legal order and as reflected in the Polish Act on public offering. The Position also outlined the legal requirements that have to be met for the decision concerning authorisation of delisting to be made. The duration of the administrative procedure for authorisation of delisting depends largely on the interaction with the CSSF.

In addition, recently there have been reports about a court action brought against Kernel in connection with the challenged resolution on delisting adopted by the company’s board of directors. Under the Administrative Procedure Code, the KNF Board is required to carefully investigate the factual and legal circumstances of the case, and that requirement also includes the requirement for the KNF Board to investigate the issues related to the statement of claim made against the company. The above circumstances may affect the date of completion, by the KNF Board, of the administrative procedure for authorisation of Kernel delisting.