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On 8 August 2022, a draft of amendments to the Code of Commercial Companies ("CCC") was published on the website of the Government Legislation Centre, implementing the following EU directives:
In parallel, the provisions in question implement the judgment of the Court of Justice of the European Union (CJEU) in Polbud case C-106/16 of 25 October 2017 in which the CJEU found that Polish provisions requiring liquidation proceedings to be conducted in order to transfer a company's registered office to another Member State restrict the principle of the freedom of establishment.
The draft amendments to the CCC particularly concern changes as regards reorganisation companies at both national and cross-border level.
Proposed changes affects entities that are planning to reorganise their corporate structure or expand their business abroad. Businesses should therefore analyse their current financial situation and the potential opportunities offered by the following proposed regulatory changes.
1. Introduction of new types of cross-border reorganisation
The amendments introduce two new types of cross-border operations to the Polish legal system:
2. Simplification of cross-border merger process – in the case of a merger without a share issue, given the same proportion of equity participation in the merging companies, by the very nature of this type of merger, simplifications in this respect include not having to specify the exchange ratio in the cross-border merger plan or having to prepare an expert opinion.
3. Introduction of rules to protect creditors, minority shareholders and employees in cross-border reorganisations
As regards cross-border mergers, divisions and conversions, the amendments introduce the following regulations to ensure the protection of creditors, minority shareholders and employees in connection with cross-border reorganisations:
4. Introduction of arrangements for extending the scrutiny of cross-border reorganisation processes
To ensure greater security of cross-border operations, the amendments introduce the need to obtain a certificate of the conformity of operations with Polish law, hitherto in force for cross-border mergers. The registration of a reorganisation in another Member State is made conditional upon the issue of a certificate.
5. Introduction of new types of domestic reorganisations
6. Changes to limited joint-stock partnerships
The amendments change the existing regulations on the participation of limited joint-stock partnerships in merger and division procedures and allow limited joint-stock partnerships to participate in merger procedures, either as the acquiring company or as a newly formed company, or, in the case of a division, as the company being divided. This applies to both domestic and cross-border transactions.
7. Entry into force of the new regulations
The majority of the provisions of the law are scheduled to come into force on 31 January 2023.
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