There are also differing views, which refer to the concept of the ‘rational legislator’ and the fact that this is a deliberate measure aimed at protecting the shareholders of a limited joint-stock partnership involved in a company merger procedure.
In accordance with Article 520 of the Commercial Companies Code:
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- Where the acquiring company or the newly formed company is a public limited company, or where one of the merging companies is a limited partnership with a share capital, the merger plan must be examined by an expert for correctness and reliability.
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- In cases other than those specified in § 1, the merger plan must be examined by an expert if at least one of the partners of the merging companies so requests, by submitting a written application to that effect to the company of which they are a partner, no later than seven days from the date on which the company notified them of its intention to merge.
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- The provisions of Article 501, Article 502(2) and (3) and Article 503 shall apply mutatis mutandis.
Importantly, Article 520(3) of the Commercial Companies Code does not provide for the corresponding application of Article 5031 of the Commercial Companies Code, which allows for the possibility of waiving the examination of the merger plan by an expert if all partners of each of the merging companies consent to this.
For, in accordance with Article 5031 of the Commercial Companies Code:
Ҥ 1. If all the shareholders of each of the merging companies have given their consent, the following is not required:
1) the preparation of the report referred to in Article 501 § 1, or
2) the provision of the information referred to in Article 501 § 2, or
3) the examination of the merger plan by an expert and their opinion.
- 2. In the case referred to in § 1(3), the provisions of Articles 311–3121 shall apply mutatis mutandis to the assets of the acquired company or the assets of the merging companies through the formation of a new company, if the acquiring company or the newly formed company is a public limited company.”
This raises the question of whether, in the cases specified in Article 520 § 1 of the Commercial Companies Code, where such an audit is in principle mandatory, it is nevertheless possible to waive it with the consent of all the shareholders of the merging companies. In other words, the issue here is whether Article 5031 of the Commercial Companies Code can be applied by analogy to the situations of mergers specified in Article 520 § 1 of the Commercial Companies Code.
The prevailing view in legal scholarship (see, for example, K. Oplustil in: Commercial Companies Code. Commentary 2022, ed. J. Bieniak, 8th ed., Warsaw 2022) is that such a possibility should be ruled out where the acquiring company or the newly established company is a public limited company. The possibility of applying Article 5031 of the Commercial Companies Code by analogy should therefore be permitted only in the following cases, falling within the scope of Article 520 § 1 of the Commercial Companies Code:
- the acquisition of a limited joint-stock partnership by a limited liability company;
- mergers involving the formation of a new company with the participation of a limited joint-stock partnership, where the newly formed company is to be a limited liability company.
- Rodzynkiewicz (Commercial Companies Code. Volume IV. Mergers, divisions and transformations of companies. Penal provisions. Commentary. Articles 491–633, ed. Prof. A. Opalski, 1st ed., Warsaw 2016) assumes that, when adding Article 5031 to the provisions of the Commercial Companies Code, the legislator overlooked the need to incorporate this new provision into Article 520 § 3 of the Commercial Companies Code. The author emphasises that there is no substantive justification for not applying the exemption from the obligation to examine the merger plan with the consent of all shareholders of the merging companies when the merger involves partnerships – this concerns the possibility of applying Article 5031 of the Commercial Companies Code to the scope specified in Article 520 § 1 of the Commercial Companies Code, since in the remaining scope the absence of an obligation to examine the merger plan with the consent of all partners already follows from Article 520 § 2 of the Commercial Companies Code. A. Szumański takes a similar view, hypothesising whether the absence of a reference in Article 520 § 3 of the Commercial Companies Code to Article 5031 of the Commercial Companies Code is the result of a deliberate act by the legislator, who, relying on a systemic interpretation, wishes in this way to exclude the application of Article 5031 of the Commercial Companies Code to the merger of capital companies involving partnerships, or whether it is a mere legislative oversight, which has, incidentally, frequently occurred in the context of recent amendments to the Commercial Companies Code.
Business practice shows that registration courts register mergers by acquisition involving a limited joint-stock partnership without the need for an auditor’s report; nevertheless, in view of the principle of legal certainty, legislative intervention in this regard is desirable.
Frequently asked questions
Is examination of the merger plan by an expert auditor always mandatory in cases of mergers involving a limited joint-stock partnership?
The general rule indicates a mandatory examination requirement, however, voices appear in the doctrine that this requirement can be waived with the consent of all partners. The regulations do not expressly provide for such an exclusion in all cases, which creates certain legal uncertainties.
Can all partners agree to waive the examination of the merger plan by an expert auditor?
According to Article 5031 of the Commercial Companies Code, consent of all partners allows for waiving the examination, but this provision is not directly applied to situations specified in Article 520 § 1. In practice, this means that depending on the type of merging companies, this possibility may be excluded or permissible through interpretation.
In which specific situations involving a limited joint-stock partnership can examination of the merger plan be waived?
According to the prevailing opinion in the doctrine, waiver is possible only when the acquiring company is a limited liability company or when the newly formed company is to be a limited liability company. In other cases, e.g., when acquired by a joint-stock company, examination by an expert remains mandatory.
Does the practice of registry courts allow for registration of mergers without an expert auditor’s opinion?
Yes, business practice shows that registry courts often register mergers involving a limited joint-stock partnership without the need to prepare an expert’s opinion. Nevertheless, due to the principle of legal certainty, potential legislative intervention in this area is recommended.
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He gained his professional experience in one of Lublin's renowned law firms, dealing with civil and business law in its broadest sense. At the law firm Hewelt Wojnowski i Wspólnicy spółka komandytowa, he deals on a daily basis with current counseling in the field of business and the development of corporate documentation of companies, such as. Company agreements, bylaws of company bodies, agreements regulating relations between shareholders, resolutions of company bodies, M&A transactions. In addition to…
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