Cross-border transfer of the registered office of a Polish company abroad as a reason for the campany’s dissolution in light of the Code of Commercial Partnerships and Companies and freedom of entrepreneurship

Abstract

In the absence of a EU (fourteenth) directive on the transfer of a company’s registered office, a number of questions arise including whether a Member State may prevent cross-border transfer of a company by enforcing a requirement that it be dissolved in a liquidation procedure. Article 270 point 2 and Article 459 point 2 of the Code of Commercial Partnerships and Companies provides for such a requirement stating that a shareholders’ resolution to move a company abroad shall constitute a reason for dissolving the company. Hence a decision of the Supreme Court to refer to the European Court of Justice regarding compliance of this regulation with the Treaty on the European Union (Article 49).

It is generally expected that a fourteenth directive regulating the above matter will be issued. Sharing this expectation, the author attempted to provide rationale for the following de lege lata conclusions: (i) a situation in which the striking off a company’s name from the Polish register of entrepreneurs if its registered office is to be cross-border transferred to another Member State is contingent upon such company’s dissolution constitutes a limitation of the freedom of entrepreneurship and (ii) the interests of creditors and shareholders that are worthy of protection
when a Polish company is being transformed (also when per analogiam applied in the case of a cross-border transfer) are protected by relevant provisions of the Polish Code of Commercial Partnerships and Companies as well as, frequently, the EU regulations, and (iii) a cross-border transformation does not require a change (or transfer) of the company’s registered office.

In light of the above, a de lege ferenda postulate must be made calling for adoption of a separate regulation or an explicit provision constituting grounds for relevant application of provisions on the transformation of Polish companies and provisions on mergers.