A milestone in the Union market integration? Cross-border reorganization of companies and a new type of company division in the Commercial Companies Code – changes effective from 15 September 2023
15 September 2023 was the effective date for the provisions of the Amendment to the Commercial Companies Code adopted on 16 August 2023. Changes to the Commercial Companies Code (CCC) introduced by the said Amendment implement the following directives of the European Parliament and of the Council (EU):
- 2019/1151 of 20 June 2019 amending Directive (EU) 2017/1132 as regards the use of digital tools and processes in company law; and
- 2019/2121 of 27 November 2019 amending Directive (EU) 2017/1132 as regards cross-border conversions, mergers and divisions.
The aforementioned Amendment addresses (without limitation) the need to implement the rulings passed by the ECJ. In the high-profile case C-106/16 Polbud, the ECJ held that national legislation may not make the right of a company to convert itself into a company governed by the laws of another Member State by transfer of its registered office contingent on its prior liquidation.
The Amendment implements two new cross-border reorganization processes to the Polish law (cross-border division and cross-border conversion), and introduces a new type of division, i.e. division by separation. Moreover, the Amendment introduces changes in the context of a cross-border merger. The changes made by virtue of the Amendment also involve implementation of the mechanism of testing the legitimacy of a cross-border transaction, in which an opinion of the Head of the National Fiscal Administration (regarding compliance with the tax law) is to be one of the elements.
1. Cross-border merger
The Amendment introduced a solution whereby a limited joint-stock partnership [spółka komandytowo-akcyjna] can also, in addition to capital companies, take part in a merger and act as the acquiring company or a company newly formed with a foreign company, as referred to in Art. 119(1) of Directive (EU) 2017/1132 of the European Parliament and of the Council, formed in accordance with the laws of a Member State or a state which is a party to the European Economic Area Agreement, having its registered office, central administration or principal place of business within the EU or a state being a party to EEA Agreement.
2. Cross-border division
Cross-border division for capital companies and limited joint-stock partnerships is the first one of the new cross-border reorganization processes. The cross-border division may be made by transfer of assets of the company being divided to a new company or new companies. Importantly, the companies to be divided must be formed in conformity with the law of a Member State of the European Union or a state being a party to the European Economic Area Agreement (EEA) and have their registered office, central administration or principal place of business within the European Union or a state being a party to the EEA Agreement. Moreover, at least two of the companies participating in the division should be subject to the laws of different Member States or States being Parties to the EEA Agreement.
3. Cross-border conversion
The new regulations governing cross-border conversions enable capital companies and limited joint-stock partnerships (as mentioned before) to convert into a company governed by the laws of another Member State. However, according to the new regulations, the conversion will no longer necessitate liquidation of a company in the country in which the company operated so far.
The only requirement to be satisfied for a conversion into a company under the law of another Member State to be effective is that the registered office of the company is transferred from its current location to Poland or the other way round – from Poland abroad. As a result of the conversion, the company will also be entitled to change its legal form so that it complies with the legal regime currently applicable to it.
4. Verification of a cross-border merger or division
Another change that became effective on 15 September 2023 applies to the right of the registry court to check whether the planned cross-border reorganization (merger or division) does not abuse the law. The registry court is authorized to issue a relevant statement in this regard within three months of filing a request in this respect by competent corporate bodies. In this statement the court confirms compliance of the planned reorganization with the law. The court records the information on filing cross-border division or merger documents by the company. It should be noted that the registry court checks in particular whether the terms of cross-border merger include information on procedures for employee participation which are the basis for the relevant agreements.
When compared to the requirements provided for in the CCC, the Amendment additionally requires that said statement be obtained also with respect to a cross-border division and conversion. Previously this requirement applied to cross-border mergers only.
5. Opinion from Head of the National Fiscal Administration (NFA)
The amendment implements a new obligation with respect to cross-border reorganizations (conversions, divisions and mergers) which consists of the need to obtain an opinion from the NFA Head, which is filed along with the request for issuance of the statement on compliance of cross-border reorganization with the law. As part of the opinion, the NFA Head will verify that there is no reasonable presumption that the cross-border conversion, merger or division may:
- constitute tax evasion or an element thereof as referred to in Art. 119a §1 of the Tax Code; or
- be the subject of a decision issued using measures limiting contractual benefits; or
- constitute law abuse referred to in Art. 5(5) of the VAT Act,
and will confirm that the company paid or secured its liabilities to tax authorities or public law liabilities other than taxes.
Thus, the opinion is to: (i) assess the reorganization in terms of the risk of tax law abuse and (ii) establish whether the reorganization participant fulfilled its tax liabilities.
National changes – new types of company division and merger
1. Division by separation
According to the amended provisions of the CCC, a division may be made by transfer of part of assets of the company being divided to an existing or newly formed company or companies in return for shares of the acquiring company/companies or newly formed companies, to be taken up by the company being divided rather than by its shareholder as in the case of division by spin-off. Unlike in case of operations that consist of transfer of an undertaking or an organized part of undertaking by way of an agreement on sale or by in-kind contribution, the so called universal succession will apply to division by separation. Division by separation consists of transfer of a part of assets of the company being divided to another company – the recipient company, while the company being divided receives shares in return.
2. Merger without allotment of new shares of the acquiring company
Mergers can be accomplished without allotment of shares in the acquiring company (no increase of the share capital) in a situation where one shareholder holds directly or indirectly all shares in the merging companies or the shareholders of the merging companies hold the same proportion of shares in all merging companies.
3. New obligations to inform
The registry court was provided with a new tool, which is the possibility to enquire whether a person is not on a list of persons banned from holding the function of a board member or a manager. This list is administered by the Financial Supervision Authority (KNF) which makes this information available to the registry court via the ICT system.
The restructuring regulations are an area of crucial interest of the European company law. The aforesaid amendment, i.e. the Company Law Package, which addresses the problem raised in case C-106/16 is undoubtedly a step towards improvement of domestic and cross-border reorganization of companies. This is also an increase of control of operations in connection with the LOB ( Limitation of Benefits) clause intended to limit transactions that are made solely to derive a tax benefit.
However, the scope of implementation of the above-mentioned directives is narrow as the new regulations apply to capital companies and limited joint-stock partnerships only.