Business beyond borders

Firstly, it should be noted that, within the bounds of the European Union, mergers and consolidations between companies are regulated, first and foremost, by art 43 in reference to art 48 of the EEC Treaty as an aspect of free enterprise. Such consolidation may proceed either by way of a takeover (per incorporationem) or of establishment of a new company (per unionem).

In Polish law, transborder mergers are regulated by art 491 § 11 of the Commercial Companies Code, whereunder a Polish corporate entity as well as some kinds of Polish partnerships may merge with a foreign company (as defined in art 2.1 of the European Parliament and Council Directive 2005/56/EC of 26 October 2005) incorporated in accordance with the law of a European Union member state or of a European Economic Area state (and maintaining its corporate seat, main management, or main facilities within an EU or EEA state). This general rule is qualified by the reservation that a partnership may not be the party taking over another entity, and that the newly established entity must have full legal personality. These provisions meet the general harmonisation requirements – duly confirmed by European Court of Justice authority – to the effect that member states may not exclude foreign companies from mergers admissible on the basis of their domestic laws. The general rule under international law is that transborder mergers should be allowed by member states as long as their own laws allow mergers of specific kinds of companies. (…)