In Polish law, matters related to acquisition of companies are regulated by the Commercial Companies Code and the Tax Ordinance.
Types of takeovers
Incorporated companies (limited companies) can merge with each other and with partnerships, although a partnership cannot be an acquiring company or a newly formed company.
An acquisition can be achieved by transferring all the assets of the target company to the acquiring company in exchange for shares or stocks that the acquiring party issues to the shareholders in the target company (merger by acquisition).
Another permissible form of acquisition is the formation of a limited company, to which the assets of all companies involved are transferred in exchange for stocks or shares in the new company (merger by the formation of a new company).
The company formed in this way takes over all legal and tax obligations of the merged companies.
According to the rule of tax succession, the newly formed company inherits from its predecessors rights to overpaid taxes and the obligation to pay tax arrears.
Takeovers - employees' rights
The matters related to the rights of the employees in case of takeover of the employer’s company onto another employer are regulated by art. 23 (1) of the Labour Code, which regulates especially the following:
- joint and several liability of the current and new employer for obligations arising from employment relationships that preceded the transfer;
- notification procedures. If there are no trade union organisations in a company, the employers are obliged to provide employees with written information on reasons for the transfer and on its consequences for the employees 30 days before the transfer.
- protection of the employees. The transfer of the workplace or its part to another employer may not be a reason for dismissal.
As well as Article 26 (1) of the Trade Union Act, which regulates the procedure and time limits for informing trade union organisations about the transfer and also the procedure and time limits for consultations with these organisations aimed at signing an agreement if actions affecting employment conditions are planned.
Retiring business owners need to plan the transfer of their business in advance.
Some standard requirements to be completed when taking over a business are the same as when setting up a new business.
The target company or companies merging by setting up a new company are dissolved without liquidation proceedings on the day they are deleted from the National Court Register.
The merger becomes effective on the day it is added to the National Court Register responsible for the registered office of the acquiring company or of the newly formed company.
The boards of the merging companies draw up a joint merger plan, which should be submitted to the registry court of the merging companies together with a request to appoint an auditor. The auditor analyses the correctness and accuracy of the plan.
In addition, the board of each of the merging companies shall also prepare a written report, justifying the merger.
The boards of the merging companies should inform shareholders about an intention to merge with another company twice in the same way in which shareholders' meetings or general meetings are called.
The board of each of the merging companies should submit to the registration court its resolution on the company merger in order to enter the information on this resolution into the registry, indicating whether the merging company is the acquiring company or the target company. This resolution has to be passed by a three quarter majority of the votes unless stricter provisions of the Articles of Association or Agreement apply, representing at least half the share capital. The resolution should be mentioned in the minutes drawn up by a notary public.
Polish Chamber of Commerce
Office of Economic Innovation at Polish Chamber of Commerce created a website (inwestorzy.biz) which enables entrepreneurs:
- to actively search for investors by posting business offers;
- to find interesting investment announcements;
- to establish contacts within business groups;
- to establish cooperation and facilitates the search for undertakings which are worth investing into.
Staropolska Chamber of Industry and Commerce
The Staropolska Chamber of Industry and Commerce in Kielce has realized an EU programme under which it has acquired competencies in terms of individual advice for small enterprises. Businesses interested in the acquisition of a company with up to 50 employees can receive:
- an analysis of individual needs of a business and preparation of an individual mentoring plan;
- individual expert support;
- a final report prepared by an expert with suggestions for the business.