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Journal: Problemy Prawa Prywatnego Międzynarodowego (“Problems of private international law”)

Cross-border transfer of the registered office of a Polish commercial company abroad

Maciej Mataczyński

Published: 31-12-2013 | Abstract | pp. 19-60

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.

2013-12-31



Journal: Problemy Prawa Prywatnego Międzynarodowego (“Problems of private international law”)

he C ompetition o f L aws w ith R espect t o t he Requirement of Consent of the Ownership Body of the Company for Conclusion of the Selected Types of Contracts with Its Officers

Maurycy Ostaszewski

Published: 30-06-2025 | Abstract | pp. 107-137

The article discusses the impact of uncertainties about the legal nature of Article 15 of the Polish Commercial Companies Code on the outcome of the conflict-of-laws qualification of the requirement (resulting from this provision) to obtain the consent of the ownership body of the company to execute financing agreements with an officer of that company. This requirement can be viewed as concerning corporate, representation, or contractual matters. Depending on the presumed legal nature of this requirement, it is possible to categorize it under different laws — applicable to corporate, representation, or contractual aspects. In practice, this can cause significant doubt as to the effect of failing to obtain the consent of the ownership body. The article attempts to resolve these doubts and classify the consent requirement to the most appropriate law, taking into account its purpose, function, and nature. The article dwells also upon the functional links between the norms regulating this requirement and the purpose of the given conflict norm. The outcome of these considerations is that there are convincing arguments for classifying Article 15 of the Commercial Companies Code to the legis societatis within its scope, to the category of restrictions on representation.

2025-06-30