Investments in renewable energies Sale of Renewable Energy (RES) Projects in Poland – How Transactions Are Typically Structured

Below, we outline the key building blocks of such a sale, reflecting the legal and tax realities that, in practice, often determine whether a transaction can be completed successfully.

1) What exactly is being sold?

In a typical RES project at the pre-construction stage, the transaction scope may include, in particular:

• land-related rights (lease agreements, easements, powers of attorney from landowners),
• administrative decisions, permits and ongoing proceedings (depending on technology and project stage: an environmental decision/permit, a planning/zoning decision confirming development rights for a specific site, a building permit, and other approvals),
• documentation (concept designs, reports, maps, analyses, correspondence with authorities),
• project-related rights and claims (e.g., linked to the grid connection process; at early stages, grid connection conditions are often not yet obtained).

2) The project stage matters (and shapes the contract structure)

The earlier the project stage, the more often the price is partly conditional (e.g., linked to obtaining grid connection conditions). In practice, investors may assume that the grid connection conditions will be obtained after they take over the project—this directly affects the payment mechanics and the security package (more on this below). From a market perspective, it is also important that grid connection conditions are valid only for a limited period (typically two years).

3) Asset deal vs. share deal – two core transaction models

RES project transactions are most commonly structured in one of two models. They differ in what is acquired, how much work is required to transfer rights and permits, and which historical risks “come with” the transaction.

Asset deal (sale of a package of project rights)

The buyer acquires the project “assets” only (rights, permits/decisions, documentation), without taking over the seller’s company.

Pros: a cleaner structure (less corporate “history”), easier to ring-fence unwanted risks.

Cons: often more formal work (assignments of contracts, transfers of permits/decisions, landowner consents), which can extend the acquisition timeline.

Share deal (sale of shares in a project company – SPV)

The buyer acquires the company that already “holds” the project (e.g., land agreements, permits/decisions, documentation).

Pros: operationally often simpler (fewer transfers), especially where there are many contracts and administrative decisions.

Cons: the buyer also assumes the company’s historical risks (tax, liabilities, disputes), so due diligence is typically more extensive.

In practice, the choice of model often depends on the project stage, the number and transferability of the documents, investor expectations, and the timeline. This is commercially understandable—but why it requires careful “tightening” becomes particularly clear when you consider permits, land agreements, and the payment mechanics.

4) Transfer of key decisions and permits – generally possible, but procedural

This topic is particularly important in asset deals, because the buyer (or its SPV) must formally “take over” decisions and permits that were previously issued to the seller or the project company.

In RES transactions, a critical point is whether (and how) administrative decisions and permits can be transferred to the buyer. In many cases, Polish law provides for such transfers; however, they do not happen automatically. Typically, an application is required, along with the fulfillment of formal conditions.

Depending on the project and its stage, this may include, for example:

• an environmental decision/permit (often transferable subject to consent of the current holder and the buyer’s acceptance of the conditions),
• a planning/zoning decision confirming development rights for a specific site (often transferable under similar rules),
• a building permit, which can be transferred to a “new investor” in an administrative procedure if statutory requirements are met.

In a share deal, these decisions generally do not need to be transferred because they remain within the same legal entity. Nevertheless, it is still necessary to assess whether the change of ownership triggers additional obligations (e.g., information or consent requirements under contracts) and whether the project documentation is sufficiently robust for financing purposes.

5) Project due diligence – what buyers typically review

Whether the transaction is an asset deal or a share deal, an investor will usually want to confirm that they are buying the project “as presented in the teaser,” rather than a set of documents with no realistic path to delivery.

To keep the transaction predictable, buyers typically expect at least a review in the following areas:

• land rights: continuity of title (leases/easements), landowner consents, assignability, termination periods and grounds, “change of control” clauses,
• decisions and proceedings: whether they are final/enforceable, challenged/appealed, their scope, and whether they can be transferred (in an asset deal) and under which procedure,
• grid connection: current status, correspondence with the grid operator, schedule risks; where grid connection conditions are to be obtained post-transaction—assessment of feasibility and impact on the price and payment mechanics,
• technical and environmental documentation: completeness, consistency, and usage rights (including IP/copyright to studies and reports),
• regulatory and location risks: planning restrictions, road access, infrastructure conflicts, environmental constraints,
• (in share deals) company risks: tax, liabilities, disputes, “non-project” contracts, compliance.

6) Price, milestones and “step-in” mechanisms – to avoid the project getting stuck

A milestone pricing model is common in RES: part of the price is paid at signing/closing, and another part is paid only when certain conditions are met (e.g., grid connection conditions, a building permit, formal transfer of certain decisions). This is market standard, but it requires robust contractual design.

In practice—alongside classic protections (conditions precedent/subsequent, contractual penalties, guarantees, escrow arrangements, long-stop dates)—step-in mechanisms play an important role. These are arrangements that allow the buyer to step into the seller’s role in critical processes if the project becomes stuck for organisational reasons.

Typically, the transaction documents provide for, among others:

• irrevocable powers of attorney to coordinate defined actions (e.g., applications, approvals, communication with landowners or the grid operator),
• clear seller cooperation obligations and a transparent handover “workflow” for documents and correspondence,
• the ability to take over certain steps (or appoint a substitute/representative) so the project does not stop due to missing signatures, consents, or lack of contact on the seller’s side.

The goal is simple: the buyer should have real control over the route to the next milestones—especially where further price instalments depend on them.

7) VAT, PCC and “ZCP” – tax at a glance (which can change the economics)

Two tax questions commonly come up in project transactions:

VAT vs. PCC

As a general rule, where a transaction is subject to VAT, PCC (Polish civil law transaction tax) is generally excluded (subject to statutory exceptions).

If a transaction is not subject to VAT, PCC may apply, and the rate depends on the classification of the transaction (for example, the sale of shares in a share deal is generally subject to PCC at 1%).

Are we selling a “package of rights” or a business (or an organised part of a business – ZCP)?

If an asset deal is classified as a transfer of an enterprise or an organised part of an enterprise (ZCP), VAT rules do not apply.

This may shift the tax burden towards PCC and affect the documentation approach. In early-stage RES projects, it is often argued that the transaction covers a set of rights and documents rather than an independently operating business; however, the assessment is always fact-specific.

8) Timeline and documentation – what typically streamlines the process

To keep the transaction running smoothly, the market usually follows a clear sequence:

1. term sheet / offer and agreement on the model (asset/share, price, milestones),

2. due diligence and a gap list (with a plan to close gaps),

3. sale agreement + ancillary documents (assignments, consents, powers of attorney, transfer process),

4. closing and “handover” (document package + transfer of correspondence and process access),

5. post-closing actions (in particular in an asset deal: formal transfers of decisions/agreements if these could not be completed by closing).

How can we help?

We support the sale and acquisition of RES projects in Poland from both a legal and tax perspective—covering the selection of the transaction model (asset/share), drafting and negotiating transaction documents, structuring transfer mechanics, assisting with due diligence, and “tightening” payment terms and security packages in line with investor and financing requirements.