Transgraniczne przeniesienie siedziby statutowej polskiej spółki handlowej za granicę
Cross-border transfer of statutory seat of a Polish company

Summary/Abstract: Cross-border activities of a company whose statutory seat is located in Poland have to be considered both in the context of Polish private international law rules and the EU law freedoms, in particular the freedom of establishment. The article concerns particularly one of the types of such activities — cross-border transfer of statutory seat, which has to be qualified as a cross-border conversion of a company. In VALE-judgment (C-378/10) the Court of Justice of the European Union stated that cross-border conversions of companies are, in principle, amongst those economic activities in respect of which Member States are required to comply with the freedom of establishment. In Private International Law Act from 2011 the Polish legislator has implemented the rules concerning cross-border transfer of (statutory) seat of a legal entity. Nevertheless, adopting these rules to capital companies established under Polish law seems to be impossible. Code of Commercial Companies and Partnerships does not contain any provisions on cross-border conversion, although it contains comprehensive rules concerning ‘national’ conversion of Polish partnerships and capital companies as well as cross-border merger of companies within EU (EEA). The admissibility of a cross-border conversion of a company with its statutory seat in Poland into a company which is governed by a legal system of another EU (EEA) country is questionable since according to Art. 270 point 2 and Art. 459 point 2 of Code of Commercial Companies and Partnerships the resolution on the transfer of the seat of a company abroad is a reason for dissolving a company. Such regulation has to be assessed as a restriction on freedom of establishment. However, the proportionality test applied to that restriction (necessity of dissolving a company) leads to a conclusion that it is justified and de lege lata under Polish law the cross-border transfer of statutory seat of a Polish company, even within the EU (EEA), is inadmissible.

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