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Beyond Borders: Eversheds Sutherland's ICR insights series. EU Mobility Directive – Legal Update – Poland

  • Poland
  • Europe
  • Corporate
  • Labor law and trade union issues

09-11-2022

Country specific - Poland

This country specific outline contains further information regarding the implementation of the provisions of the EU Mobility Directive into Polish law and provides further local insight.

For further information and to access any of our other country-specific briefings that we have prepared, please refer to the bottom section of our general briefings page here.

Cross-border mergers, divisions and conversions

Current status of the implementation

The Polish draft proposal (the “Proposal”) implementing, inter alia, Directive (EU) 2019/2121 of the European Parliament and of the Council of 27 November 2019 amending Directive (EU) 2017/1132 with regard to cross-border conversions, mergers and divisions (the “Directive”) is at its preliminary stage of consulting. The Prosal is currently in its final draft prior to its referral to Parliament. Once the final wording of the Proposal is prepared, it will have to pass Parliament, the Senate and then the President. Once the President accepts the Proposal and signs it, the Proposal needs to be promulgated and after agreed vacatio legis (according to the current wording of the Proposal which comes into force 31 January 2023), the provisions will be binding.

Given the current legislative stage, it is difficult to assess whether Poland will implement the Directive into its national legislation before the implementation deadline of 31 January 2023. For now, the actual effective date of the new legislation remains unclear, despite the fact that the Proposal itself sets an effective date of 31 January 2023, the implementation deadline may not be met.

Summary of the current and future legal landscape for Poland

Apart from cross-border mergers, Polish regulations do not currently permit for redomiciliations (conversions) of Polish companies and also divisions across borders. To date, only domestic divisions and conversions are regulated under Polish law and cross-border redomiciliation (conversion) is connected with the compulsory dissolution of the company and liquidation procedure.

In the absence of a specific cross-border legal framework concerning, inter alia, conversions it is problematic to conduct such an operation smoothly, based only on current regulations and EU provision on  freedom of establishment and movement.  In the previous decade it led Poland to the Polbud case and proceeding before Luxembourg Court of Justice where the Polish legislator was obliged to amend the regulations in order to remove obstacles to the cross-border transfer of the registered office of Polish companies to other Member States. The Directive, as well as the Proposal, currently provides guidance on the formalities for implementation of such cross-border conversions.

Apart from the cross-border conversions, the cross-border divisions are largely non-existent. With the implementation of the Directive, Poland will have a unified legal framework for mergers, divisions and conversions across borders within the EU/EEA, safeguarding the rights of creditors, employees and (minority) shareholders. We expect these important structuring tools will further facilitate cross-border transactions.

Permitted companies and geographic scope

In the Polish context, the cross-border transaction can take place between Polish companies, i.e. Polish limited liability company [sp. z o.o. (spółka z ograniczoną odpowiedzialnością)], Polish joint-stock company [S.A. (spółka akcyjna)], Polish limited joint-stock partnership [S.K.A. (spółka komandytowo-akcyjna)] and companies from the other EU/EEA Member States.

Timescales

With the implementation of the Directive, we anticipate that Polish non-complex and simplified cross-border transactions (i.e. a transaction involving companies which each only have one shareholder, no employees and no secured assets) should take approximately 6-9 months to complete. More complex cross-border transactions could take between  8-15 months for actual implementation, particularly as formalities in the EU/EEA Member State of exit and entry will both need to be complied with. In practice, much will depend on the efficient conduct of the proceedings by the Polish registry court and the tax office.

The Directive provides an extensive legal framework and (largely) harmonised legal process for these cross-border transactions and introduces specific safeguards for creditors, employees and (minority) shareholders. Creditors, for example, will be equipped with a right to demand security of claims within one month of, inter alia, disclosure of cross-border transaction plan and, in case of a dispute, the creditor will be able to apply to the court to secure his claims within three months of, inter alia, disclosure of the aforementioned cross-border transaction plan. For any further guidance and advice on these matters, please do reach out your local Eversheds Sutherland contact.

Competent authority, pre-transaction certificates and anti-abuse checks

As for any domestic Polish conversion, merger or division in Poland, Polish registry court, i.e. proper district court, the commercial division of the National Court Register is the designated competent authority that supervises and executes Polish realisation of the cross-border transaction. Thus, participating Polish companies have to receive registry court attestation, i.e. certificate that the cross-border transaction complies with Polish law. Once the Directive (and the Proposal) is effective, the application for the aforementioned certificate will also have to include the application to the appropriate tax office to issue an opinion in accordance with the provision of the Tax Ordinance Act (the application to the tax office will be submitted by the registry court). The registry court will issue the certificate within three months from its submission, unless it concludes that the cross-border transaction has been set up for unlawful or fraudulent purposes aimed at evading the law.

The aforementioned three month term for issuance of the certificate may be extended by the registry court by a further three months in cases where additional information or explanations are required. Moreover, the registry court, in case of significant concerns, may also request the competent authorities  to examine the specific scope of activity of the company.

In the case of an outbound cross-border transaction, meaning a transaction whereby a Polish company converts to or transfers (assets) (in)to a company based in another EU/EEA Member State, the cross-border transaction shall subsequently be finalised in the other Member State involved. Based on the certificate issued by the Polish registry court, the designated competent authority of the other Member State is able to proceed and legally complete and effect the procedure locally.

In the case of an inbound cross-border transaction, meaning a transaction whereby a company (or companies) based in another EU/EEA Member State transfers (assets) (in)to or is converted into a Polish company, the cross-border transaction shall subsequently be finalised in Poland. To be able to legally complete and effect the procedure in Poland, the Polish registry court will require, inter alia, a certificate from the designated competent authority of the other Member State(s) involved.

In Poland it is the registry court which is a competent authority and plays a central role in any Polish cross-border transformation. Furthermore, Polish notaries as well as Polish lawyers need to be involved in the process to render advice on all related legal aspects and prepare all relevant/ancillary documents. Some of the documents, in particular shareholders’ resolutions, will need to be signed before the local notary in a notarial deed form. Local Eversheds Sutherland office cooperates with several local notarial firms and can ensure that the process runs smoothly.

Effective date, method and manner of inbound cross-border transactions

Inbound cross-border transactions (i.e. inbound conversions, mergers and divisions) become effective in the form, manner and on the date as prescribed by Polish law.

The final application to register the inbound cross-border transaction will require, inter alia, the certificate to be attached as well as other documents dependant on the type of the cross-border transaction. The conversion, merger or division will become legally effective on the day of entry in the register, thus from a Polish perspective such entry has a legal constitutive effect.

For any further guidance and advice on these matters, please do reach out your local Eversheds Sutherland contact.

Miscellaneous

Pursuant to the current wording of the transitional provisions of the Proposal, if the cross-border merger plan has been filed with the registry court before the effective date of the Proposal the previous provisions shall apply.

Key local contacts

Should you have any questions or if you require any assistance, please do not hesitate to contact us.

Other country specific

For reference, please find other country-specific information we prepared as part of this Insight Series here.