The seat of service allows for example a transmission company (energy company) to obtain a permanent legal title to use the part of the property on which it built its equipment. Transformation of the company by law Article 551 and subsequent k.s.h. has no negative impact on such entitlement.
In the order dated 14 December 2017 reference no. V CSK 135/17 The Supreme Court took the view that the transformation of a transmission undertaking operating in the form of a capital company, carried out on the basis of Article 551 and subsequent k.s.h., does not adversely affect the possibility of a converted transmission service company to sit down, but it should be adequately demonstrated that there has been a transformation and therefore a continuation of the activities of the same entity, only that in a changed legal form.
If there has been a transformation of the transmission (energy) company on the ground Article 551 and next k.s.h, we are dealing with a situation where the same entity continues to possess leading to sitting and there should be no doubt that despite the changed legal form, the conditions of sitting have been retained.
The essence of the case dealt with by the Supreme Court was that if the conversion of a transmission undertaking operating in the form of a capital company on the basis of Article 551 and the following k.s.h, this request to establish a seat of service for his benefit also includes a request to establish a seat of residence for a company converted as a purchaser of the law. In addition, in the particular situation to be assessed by the court, it was rightly pointed out that the identity of the applicant is not affected by the change of business.
In the case of transformation processes carried out under the Commercial Companies Code, most of them (division, merger and accepted by part of the doctrine of converting a single-man entrepreneur into a company, although this is a view that should not be agreed with) are carried out on a universal succession basis (e.g. in the case of a merger, acquisition entirely of another company) or partial (e.g. in the case of a division by separation, separation of a specific part, a set of rights and obligations).
Transformation is a process in which, in principle, only the legal form of the same entity is changed, so it is assumed that it is carried out on a continuation basis, not on a succession of rights and obligations one after second. In the case of the so-called ‘classical’ transformation of companies, i.e.
where the conversion occurs one companies governed by commercial law to another company governed by commercial law, there is no doubt that the principle of continuing the activity of the converted company, which will continue to operate as a result of the conversion process, but in a modified legal form, adopting a new ‘legal table’, is applicable.
The conversion therefore implies a change in the type of company while maintaining an identity in terms of rights and obligations.
Company identity means that the converted company does not enter into civil law obligations and obligations of a converted company, but at the date of conversion of the converted company all rights and obligations of the converted company (Article 553(1) (k.s.h.)Otherwords, despite the transformation being carried out, continue with regard to these rights and obligations are the same company.
Expressed under Article 553(1) k.s.h. the principle of continuation covers both private rights and obligations (Article 553(1) k.s.h.), as well as public law (Article 553(2) k.s.h.).
Its activities are also covered by the personnel sphere, as the partners of the converted company, participating in the transformation, become members of the converted company (Article 553(3) k.p.c.)
Therefore, since the conversion of the transmission energy) company took place on the ground Article 551 and next k.s.h, we are dealing with a situation where the same entity continues to possess leading to sitting and there should be no doubt that despite the changed legal form, the conditions of sitting have been retained.
Author:
Aleksandra Księżyk
Director of the Legal Department in Warsaw. Legal advisor, from 2013 associated with Russell Bedford. He runs the Legal Department at the Chancellery Russell Bedford.