In today's article, we continue with the topic of pre-emptive rights. This time, we will explore the issue of pre-emptive rights to real estate covered by the investment location decision for the National Data Processing Center.

The National Data Processing Centre (NDC) is intended to be a modern data processing center, ensuring the continuity and security of public administration resources. It will, for example, ensure the operation of state registers and the government cloud, which serve as the basis for providing e-services essential for the stable functioning of society and the state administration on a daily basis and in crisis situations. As indicated by the Ministry of Digital Affairs, the construction of the National Data Processing Centre ( NDC ) is one of the largest investments in data processing centers by the government, and the budget allocated for the entire project is nearly PLN 830 million.

The right of first refusal to purchase the National Data Processing Centre is regulated in Article 18 of the Act of 7 July 2023 on the preparation and implementation of investments related to the National Data Processing Centre (hereinafter " Act "). As indicated in Article 18 of the Act, the minister responsible for information has the right of first refusal to purchase the State Treasury in the event of the sale of real estate, perpetual usufruct, a share in co-ownership or a share in perpetual usufruct of real estate covered by the decision on the location of the investment related to the National Data Processing Centre.

The pre-emptive right in question does not apply when the purchaser of the real estate covered by the decision is:

1) local government unit,

2) State Treasury,

3) a special purpose vehicle specified in the Act of 10 May 2018 on the Central Communication Port (hereinafter referred to as the "CPK Act ") or a company specified in Article 15 section 1 of the CPK Act, i.e. a special purpose vehicle that may establish, independently or with other entities, capital companies, and acquire, acquire and dispose of shares in other companies,

4) a commercial law company whose sole shareholder is the State Treasury, which is a transmission system operator or holds a license to transmit liquid fuels,

5) a commercial law company that is an operator of a gas distribution system, in the case of acquisition of real estate covered by a decision on determining the location of an investment in the scope of the National Data Processing Centre for purposes related to the construction of a gas distribution system,

6) a capital company or capital group operating in the electricity, crude oil and gas fuels sectors, where the real estate is acquired for purposes related to the construction of property in the electricity sector – infrastructure used to generate or transmit electricity; in the crude oil sector – infrastructure used to extract, refine, process crude oil and to store and transmit crude oil and petroleum products through pipelines, as well as port terminals for transshipment of these products and crude oil; in the gas fuels sector – infrastructure used to produce, extract, refine, process, store and transmit gas fuels through pipelines and liquefied natural gas (LNG) terminals,

7) national parks, in the case of acquisition for nature conservation purposes,

8) an entity exercising the right of pre-emption under the provisions of the Act on shaping the agricultural system,

9) a person close to the seller.

The acquisition of real estate covered by a decision establishing the location of a KCPD investment is possible when consent for the acquisition is issued by an administrative decision at the request of the buyer by the Minister responsible for computerization, provided it is determined that the acquisition will not prevent or hinder the implementation of the project. Another condition for obtaining consent for the acquisition of real estate is that the acquisition must not pose a threat to the operation of the KCPD.

The deadline for submitting a declaration of exercise of pre-emption by the KCPD is two months, counted from the date the notification submitted by the owner or perpetual usufructuary of the property is received by the minister responsible for computerization. Such notification must be accompanied by an extract from the land and building register for the property covered by the investment location decision, as well as an extract from the land and mortgage register or a certificate issued based on the set of documents maintained for the property being sold. Instead of an extract from the land and mortgage register and the certificate, information on the land and mortgage register number, which is available in the central land and mortgage register database, may also be attached.

It's also worth remembering that if the real estate's sales price differs significantly from its market value, the Minister of Information Technology, exercising his pre-emptive right, may, within 14 days of submitting a declaration of its exercise, request a court to determine the proper price for the real estate. In such cases, the court determines the price corresponding to the market value of the real estate covered by the decision on determining the investment location within the scope of the KCPD, in accordance with the provisions of the Real Estate Management Act of 21 August 1997.

In this article, we would like to invite you to read our latest article in the series on pre-emption, which will address these less common rights of pre-emption. Although these rights are rare in real estate transactions, they are important to understand, as the consequences of ignoring them can be extremely severe.

This article is for informational purposes only and does not constitute legal advice.

Legal status as of July 5, 2024

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