By judgment of 23 March 2017, reference no. I CSK 462/16 The Supreme Court has decided that in the case of the division of a company by the separation does not apply Article 531(3) The Commercial Companies Code, since the assets and liabilities of the split company which have not been assigned under the split plan remain with the split company.
That judgment was given on the basis of the following facts. Company A Sp. z o.o. brought an action against B Sp. z o.o. for payment of the amount 482.266.34 zł the title provided to C Sp. z o.o. prefabricates in the performance of the contract concluded between A Sp. z o.o. and C Sp. z o.o. Implementation of the contract took place prior to the separation of B Sp. z o.o. from C Sp. z o.o. as part of the separation procedure, in accordance with the provision Article 529(1)(4) k.s.h.
After examining the case, the District Court considered that the liability of B Sp. z o.o. was not assigned to B Sp. z o.o. in the plan of division to be shared company, i.e. C Sp. z o.o., and the liability of B Sp. z o.o. is a joint liability on the basis of the Article 546(1) k.s.h., i.e. the net asset value assigned to B Sp. z o.o. in the distribution plan.
The Court of Appeal, dismissing the appeal against the judgment of the Court of First Instance, indicated that for the obligations arising from the contract not assigned to B Sp. z o.o. in the plan of division, B Sp. z o.o. is jointly liable to C Sp. z .o. on the basis of Article 531(3) k.s.h.
As a result of the appeal, the Supreme Court annulled the contested judgment and referred the case to a re-examination, arguing that the principle of joint and several liability resulting from Article 531(3) k.s.h. is without object in case of division by separation.
In the justification for this ruling, the Supreme Court rightly noted that the division by separation (Article 529(1)(4) k.s.h.) this differs from divisions by separation (Article 529(1)(1-3) k.s.h.), that as a result the split company does not lose its legal existence.
The object of the separation is a certain part of the company's assets, not its entire assets. As a result, the division by separation shows the differences that have the normative expression.
The Supreme Court further explained that the specific nature of the division by separation makes it unnecessary to have a rule determining the fate of assets, including liabilities, of a shared company, which in the distribution plan were not assigned to a particular acquiring company or a newly-established company.
These components, including liabilities, remain in a shared company, since it retains its existence and the essence of the division by division consists in the fact that part of the shared company's assets, as defined in the distribution plan, is transferred to the acquiring companies or companies newly bound.
In the case of division by division in the allocation plan, a precise description and division of the components (assets and liabilities) of the acquiring companies or companies newly bound (Article 534(1)(7) k.s.h.).
This means that the assets, including liabilities that are not assigned to the acquiring companies or newly bound companies in the distribution plan, remain in the split company. Any provision of the allocation plan indicating the assets remaining in the shared company shall only be of a declarative nature.
The description of the breakdown by separation shall not apply to it. Article 531(3) k.s.h., since the rules contained in that provision are without object in this division.
The Supreme Court in the judgment in question undoubtedly interprets the provision correctly and correctly Article 531(3) k.s.h., and any different arrangements must be considered incompatible with the specific nature of the division by separation.
Author:
Emilia Pasławska
Legal advisor at the Legal Department Graduate of the Faculty of Law and Administration at the University of Gdańsk and Postgraduate Tax and Tax Law Studies at the University of Warsaw. In 2016 She completed an advisory application at the District Chamber of Legal Advisors in Warsaw, then passed the bar exam with a positive result.
She gained her professional experience in the Tricity and Warsaw law firms, conducting legal services for natural and legal persons. He also has professional experience in representing clients before general and administrative courts. Her interests focus on civil and economic law.