The implementation of EU rules to KSH extends the scope of the possibility to carry out company merger processes as regards the possibility to choose an additional form of company that merging companies can adopt.
On 8 August 2022 on the website of the Government Legislative Centre, a draft amendment of the law of the Commercial Companies Code and some other laws on mergers, divisions and transformations of companies was published, implementing the Directive (EU) of the European Parliament and of the Council No Directive 2017/1132 of 14 June 2017 on certain aspects of company law, as amended Directive (EU) of the European Parliament and of the Council No Directive 2019/2121 of 27 November 2019 and the judgment of the Court of Justice of the EU of 25 October 2017 in the case of the signature of the file C-106/16 (hereinafter: ‘Amendment Act’ or ‘Novelisation’).
De lege lat according to content Article 491(1) Act of 15 September 2000 Commercial Companies Code (i.e. Journal of Laws of 2022, item 1467 hereafter, ‘KSH’) the company formed by the merger of capital or passenger companies can only be a capital company.
According to Article 4(1)(2) KSH is a limited liability company, a simple public limited liability company and a public limited liability company.
This limitation of the merger process as a result of which the acquiring company or the newly established company may be limited by the possibility of trading and the adjustment of entities to the needs of the changing market.
The Polish legislator proposed in the Act amending the possibility of the merger of merging companies, as the target form after the merger, a limited partnership-shared company – the only personal company in which companies participating in the merger could transform.
This extension of the list of authorised entities resulting from the merger should, as a general rule, be assessed in a positive manner, given the greater possibilities of the merger procedure.
In addition, the amendment, after Article 515 KSH adds Article 5151, which introduces into section 1 the possibility of a faster merger procedure where one the shareholder holds directly or indirectly all the shares or shares of the merging companies and, where the partners of the merging companies have shares or shares of the merging companies in the same proportions in all the participating companies (hereinafter ‘Simplified Procedure’). The simplified procedure allows the merger to be carried out without granting shares or shares of the acquiring company to shareholders.
In addition, section 2 the proposed provision provides that where one the shareholder holds indirectly all the rights of shares in the company being acquired (shares or shares), and the merger is made on the basis of the simplified procedure, i.e.
without the granting of shares or shares of the acquiring company, the creditor of the company not participating in the merger, directly having all the rights of the acquired company, may require the company to secure claims within one month of the date of the announcement of the merger plan, if it is likely that the satisfaction of its claims is compromised by the merger.
In the event of a dispute between the company and its creditor regarding the establishment of a security, the court competent for its decision shall be the court competent for the registered office of the company, after the creditor has lodged a request for a security to the court within the time limit two months from the date of publication of the merger plan.
At the same time added Amending section 6 1 Article 516 KSH provides that the simplified procedure does not apply to the following provisions: 494 section 4 KSH, 499 section 1 point 2-4 KSH, 502 KSH and 503 KSH and to the company being acquired shall not apply Article 501 KSH and Article 506 KSH.
Announcement and provision of a connection plan and access to documents resulting from Article 505 KSH should take place at least one month before the date of the meeting of shareholders or the general meeting of the acquiring company on which the merger resolution is to be adopted.
The planned changes in KSH to the extent indicated above will have a positive impact on the economic turnover by increasing the ability of economic operators to restructure, as well as, in the case of entities which are personally linked (i.e.
the composition of entities which have a shareholder's or a shareholder's status in the company) also in terms of faster merger process. At the same time, the literal wording of the proposed provisions shows that the simplified merger procedure refers to a merger by acquisition (a merger per corporation).
The proposed revisions of the KSH, in principle, should be assessed positively, although they may change during the legislative procedure and only after their final adoption and after the relevant period of application a clear impact assessment of the proposed regulation will be possible.