The interest in cross-border transformation processes is increasing among Polish entrepreneurs who are increasingly participating in the Community market.
The cross-border merger of companies was regulated in Directive 2005/56 of 26 October 2005 on cross-border merger of capital companies (Directive) which was implemented in the Polish legal order by amending the Commercial Companies Code with 25 April 2008 The adoption of the Directive was intended to facilitate the functioning of a single Community market.
Many legal and practical problems related to the termination of the company's legal existence in the territory can be avoided through the legislation. one the Member State and its continued activities in the territory of another State.
As with the domestic merger, on the date of entry of the cross-border merger in the register, the acquired company and the merging companies by the merger of the new company are removed from the National Court Register.
On the date of merger, the acquiring company or the newly established company shall enter into all the rights and obligations of the acquired company or the merging companies by the new company. The cross-border merger refers to capital and limited-activity companies, but cannot be a acquiring company or a newly established company.
Such a merger is possible if the companies are established in accordance with the law of an EU Member State and are established, head office or head office on the site one from Member States.
The condition for applying cross-border merger rules is that at least two from companies involved in the transformation process is governed by the laws of different Member States.
The cross-border merger process is carried out in accordance with national regulations on merger with modifications under the Directive. In addition to the limitations resulting from Article 491(3) KSH, i.e.
the merger ban on the company in liquidation, which has already started the division of assets and the company in bankruptcy, cannot participate in a cross-border merger, even if it meets the criteria of the foreign company referred to in Article 2(1) Directive 2005/56 of 26 October 2005 on cross-border mergers of companies and a company whose objective is to invest publicly-issued capital collectively, acting on a risk diversification basis and whose units are redeemed or redeemed directly or indirectly from the assets of that company on request.
An element of the conversion plan is, inter alia, the identification of the date on which the operations of the merging companies will be considered, for accounting purposes, to be operations carried out on the account of the acquiring company or the newly bound company and the date on which the accounts of the merging companies are closed.
In the case of a cross-border merger plan, in addition to the elements of the plan mentioned in the national merger rules, additional requirements for the mandatory content of the merger plan are provided, inter alia, for the exchange of shares or shares, the ratio of the exchange of other securities of the company being acquired or of the companies merging into the securities of the acquiring company or the newly bound company and the amount of any cash payments, the date from which those other securities entitle to participate in the profit of the acquiring company or the newly bound company, and the conditions for exercising the rights of creditors and minority shareholders of the merging companies and the address at which information on these conditions may be obtained free of charge. In addition, the cross-border merger plan should indicate the impact of the merger on the state of employment of the acquiring or newly bound company and the procedures for the participation of employees in determining their rights of participation in the organs of the acquiring or newly bound company.
In addition to the above, the mandatory element of the conversion plan is also the identification of the date on which the operations of the merging companies will be considered, for accounting purposes, to be operations carried out for the account of the acquiring company or the newly established company and the date on which the accounts of the merging companies are closed.
In practice, there is also often a problem with which language the merger plan should be drawn up, since this issue is not regulated by law. Since this plan should be drawn up jointly by all merging companies and understood by all the addressees of the merger process (including the relevant bodies, e.g. registered courts) it appears necessary to draw it up in all the official languages of the countries governed by the law by the companies involved in the cross-border merger.
As per content Article 127(2) Directive on certain aspects of company law, in each of the countries in which the merging companies are established, a court, a notary or another competent authority shall issue a certificate confirming the proper completion of the merger operations and formalities. Such a certificate should be issued immediately. After issuing the certificate, the court shall enter the mention of the merger.
Although the whole process of merging cross-border companies is time-consuming and requires great commitment it is one from the basic ways of transferring business to another country and is increasingly interested in entrepreneurs.