The provisions of the Commercial Companies Code should be notified to the registration court of merging companies, together with a specific request. In practice, the issues related to the registration obligations of the passenger company merger plan raise doubts as to whether the plan is also subject to compulsory publication in the Judicial and Economic Monitor.
According to Article 500 k.s.h., which concerns the merger of capital companies, the merger plan should be notified to the registration court of the merging companies with the application in question under Article 502(2) k.s.h.
According to section 2 the proposed provision should also be published no later than one month before the date of the meeting of shareholders or the general meeting at which the merger resolution is to be adopted.
The obligation to advertise in the MSiG shall not apply to a company which, no later than one month before the date of commencement of the meeting of shareholders or the general meeting at which the merger resolution is to be adopted, shall, without delay, make the merger plan available to the public on its website free of charge until the end of the meeting adopting the merger resolution.
The provisions in question differ in the drafting and notification of the merger plan. Provision Article 519 k.s.h. is the equivalent of a recipe Article 500 k.s.h. on mergers with capital companies. This standard, other than those mentioned Article 500 k.s.h., provides only one how the merger plan is disclosed, i.e. by reporting it to the records. This provision does not require the publication of a merger plan in the Judicial and Economic Monitor.
The solution adopted in this provision is justified by the need to simplify the merger procedure in the event of mergers with partnerships, due to existing personal ties between partners. It should therefore be considered that the merger plan with the partnership does not require publication in the Court and Economic Monitor.
It is also worth pointing out that the notification obligation is excluded from the merger plan itself (Article 518(1) k.s.h.), i.e. without the Annexes provided for under Article 499(2) k.s.h. However, since it will also be necessary for the expert to review the merger plan correctly for certain annexes, practical considerations support the submission of certain annexes to the registration court. Under Article 499(2) k.s.h.
The examination of the merger plan by the expert will have to be carried out if the acquiring company or the newly established company is a public limited company or if one of the merging companies is a limited-stock company and if requested at least one from the shareholders of the merging companies, making a written request in the company to which he is a shareholder, no later than within the time limit seven days from the date of notification by the company of the intention to merge.
Overall, according to Article 519 k.s.h. the merger plan should be disclosed only by reporting it to the Registry Court. The merger plan should be accompanied by annexes which will be verified by the expert during the examination of the merger plan in the cases referred to above.
Author: Michał Wasilenko
Lawyer, Senior Associate in the Legal Department, member of the Bar Association in Lublin, graduate of the Faculty of Law and Administration at Maria Curie-Skłodowska University in Lublin. He specializes in commercial and civil law law.