Polbud — Wykonawstwo (C-106/16) — cross-border conversion of a company and freedom of establishment (corporate)

Wykonawstwo sp. z o.o", "25 October 2017 ( *1 )"]

25 October 2017 ( *1 ) On the basis of that resolution, on 19 October 2011 Polbud lodged a request that the opening of a liquidation procedure be recorded by…

Wykonawstwo sp. z o.o", "25 October 2017 ( *1 )"]

25 October 2017 ( *1 ) Second, the referring court states that, while, as a general rule, a Member State may not refuse to recognise legal personality acquired…

Wykonawstwo sp. z o.o", "25 October 2017 ( *1 )"]

25 October 2017 ( *1 ) The Polish and Austrian governments submit that Articles 49 and 54 TFEU are not applicable to a company transfer such as that at issue…

Wykonawstwo sp. z o.o", "25 October 2017 ( *1 )"]

25 October 2017 ( *1 ) In the light of the foregoing, the answer to the first and second questions is that Articles 49 and 54 TFEU must be interpreted as…

Wykonawstwo sp. z o.o", "25 October 2017 ( *1 )"]

25 October 2017 ( *1 ) Moreover, the mere fact that a company transfers its registered office from one Member State to another cannot be the basis for a…

Wykonawstwo sp. z o.o", "25 October 2017 ( *1 )"]

25 October 2017 ( *1 ) By its third question, which it is appropriate to examine first, the referring court seeks, in essence, to ascertain whether Articles 49…

Wykonawstwo sp. z o.o", "25 October 2017 ( *1 )"]

25 October 2017 ( *1 ) Furthermore, as regards the criticisms made of the Advocate General’s Opinion, it must be borne in mind, first, that the Statute of the…

Wykonawstwo sp. z o.o", "25 October 2017 ( *1 )"]

25 October 2017 ( *1 ) Before that court, Polbud claims that, when its registered office was transferred to Luxembourg, it had lost its status as a company…

Wykonawstwo sp. z o.o", "25 October 2017 ( *1 )"]

25 October 2017 ( *1 ) Polbud stated that it did not see any need to produce those documents since it was not being wound up, its assets had not been…

Wykonawstwo sp. z o.o", "25 October 2017 ( *1 )"]

25 October 2017 ( *1 ) That is not the situation here. Polbud set out, at the hearing, its assessment of the facts at issue. In particular, Polbud had the…

Wykonawstwo sp. z o.o", "25 October 2017 ( *1 )"]

25 October 2017 ( *1 ) However, in accordance with the settled case-law cited in paragraph 52 of the present judgment, it must also be determined whether the…

Wykonawstwo sp. z o.o", "25 October 2017 ( *1 )"]

25 October 2017 ( *1 ) At the outset, it must be observed that the questions referred for a preliminary ruling are based on the premiss, which Polbud disputes…

Wykonawstwo sp. z o.o", "25 October 2017 ( *1 )"]

25 October 2017 ( *1 ) This request for a preliminary ruling concerns the interpretation of Articles 49 and 54 TFEU.

Wykonawstwo sp. z o.o", "25 October 2017 ( *1 )"]

25 October 2017 ( *1 ) Articles 551 to 568 of the Companies Code concern the conversion of a company. Article 562(1) of that code provides: ‘The conversion of…

Wykonawstwo sp. z o.o", "25 October 2017 ( *1 )"]

25 October 2017 ( *1 ) That argument cannot be accepted.

Wykonawstwo sp. z o.o", "25 October 2017 ( *1 )"]

25 October 2017 ( *1 ) However, it must be observed that, as the Court has previously held, the fact that either the registered office or real head office of a…

Wykonawstwo sp. z o.o", "25 October 2017 ( *1 )"]

25 October 2017 ( *1 ) In this case, it is apparent from the request for a preliminary ruling that the transfer of the registered office of a company…

Wykonawstwo sp. z o.o", "25 October 2017 ( *1 )"]

25 October 2017 ( *1 ) Under the second paragraph of Article 49 TFEU, read in conjunction with Article 54 TFEU, the freedom of establishment for companies or…

Wykonawstwo sp. z o.o", "25 October 2017 ( *1 )"]

25 October 2017 ( *1 ) On 24 June 2013, Polbud lodged an application at the registry court for its removal from the Polish commercial register. The reason…

Wykonawstwo sp. z o.o", "25 October 2017 ( *1 )"]

25 October 2017 ( *1 ) On the contrary, it follows from those judgments, and from the judgment of 12 July 2012, VALE (C‑378/10, EU:C:2012:440), that, as EU law…

Wykonawstwo sp. z o.o", "25 October 2017 ( *1 )"]

25 October 2017 ( *1 ) On 28 May 2013 the meeting of shareholders of Consoil Geotechnik Sàrl, whose registered office is in Luxembourg, adopted a resolution…

Wykonawstwo sp. z o.o", "25 October 2017 ( *1 )"]

25 October 2017 ( *1 ) First, the referring court considers that the restriction on freedom of establishment is justified, in this case, by the objective of…

Wykonawstwo sp. z o.o", "25 October 2017 ( *1 )"]

25 October 2017 ( *1 ) Nonetheless, under Article 270, point 2, of the Companies Code and Article 272 of that code, a resolution of the shareholders on the…

Wykonawstwo sp. z o.o", "25 October 2017 ( *1 )"]

25 October 2017 ( *1 ) It follows, in this case, that freedom of establishment confers on Polbud, a company incorporated under Polish law, the right to convert…

Wykonawstwo sp. z o.o", "25 October 2017 ( *1 )"]

25 October 2017 ( *1 ) It must, in that regard, be made clear that, according to the request for a preliminary ruling, the process of liquidation extends to…

Wykonawstwo sp. z o.o", "25 October 2017 ( *1 )"]

25 October 2017 ( *1 ) It must be recalled that the question of the applicability of Articles 49 and 54 TFEU is different from the question of whether a Member…

Wykonawstwo sp. z o.o", "25 October 2017 ( *1 )"]

25 October 2017 ( *1 ) Article 270 of the Kodeks spółek handlowych (the Companies Code), of 15 September 2000, as amended (Dz. U. 2013, No 1030) (‘the…

Wykonawstwo sp. z o.o", "25 October 2017 ( *1 )"]

25 October 2017 ( *1 ) In those circumstances, the Sąd Najwyższy (Supreme Court, Poland), decided to stay the proceedings and to refer the following questions…

Wykonawstwo sp. z o.o", "25 October 2017 ( *1 )"]

25 October 2017 ( *1 ) Since a general obligation to implement a liquidation procedure amounts to establishing a general presumption of the existence of abuse…

Wykonawstwo sp. z o.o", "25 October 2017 ( *1 )"]

25 October 2017 ( *1 ) However, in accordance with the case-law cited in paragraph 40 of the present judgment, the fact that either the registered office or…

Wykonawstwo sp. z o.o", "25 October 2017 ( *1 )"]

25 October 2017 ( *1 ) It must be observed that Article 49 TFEU, read in conjunction with Article 54 TFEU, extends the benefit of freedom of establishment to…

Wykonawstwo sp. z o.o", "25 October 2017 ( *1 )"]

25 October 2017 ( *1 ) In this case, the Polish legislation requires the mandatory liquidation of a company that wishes to transfer its registered office to a…

Wykonawstwo sp. z o.o", "25 October 2017 ( *1 )"]

25 October 2017 ( *1 ) By document lodged at the Registry of the Court on 28 June 2017, Polbud asked the Court to order the reopening of the oral part of the…

Wykonawstwo sp. z o.o", "25 October 2017 ( *1 )"]

25 October 2017 ( *1 ) Accordingly, Articles 49 and 54 TFEU do not, in principle, preclude measures of a Member State intended to ensure that the interests of…

Wykonawstwo sp. z o.o", "25 October 2017 ( *1 )"]

25 October 2017 ( *1 ) In those circumstances, the Court must hold that the national legislation at issue in the main proceedings, by requiring the liquidation…

Wykonawstwo sp. z o.o", "25 October 2017 ( *1 )"]

25 October 2017 ( *1 ) In that regard, it must be recalled that the Court has recognised that overriding reasons in the public interest include the protection…

Wykonawstwo sp. z o.o", "25 October 2017 ( *1 )"]

25 October 2017 ( *1 ) In that regard, it must be recalled that, in the absence of harmonisation of EU law, the definition of the connecting factor that…

Wykonawstwo sp. z o.o", "25 October 2017 ( *1 )"]

25 October 2017 ( *1 ) The referring court, for its part, states, first, that a liquidation procedure is focused on the end of a company’s legal existence and…

Wykonawstwo sp. z o.o", "25 October 2017 ( *1 )"]

25 October 2017 ( *1 ) Article 272 of the Companies Code states: ‘A company shall be wound up, after being liquidated, by being removed from the register.’

Wykonawstwo sp. z o.o", "25 October 2017 ( *1 )"]

25 October 2017 ( *1 ) First, the argument of the Austrian government that no business is actually being conducted by Polbud in the host Member State cannot be…

Wykonawstwo sp. z o.o", "25 October 2017 ( *1 )"]

25 October 2017 ( *1 ) Article 288 of that code provides: ‘§ 1. Upon approval by a shareholders’ meeting of the financial statement as at the date preceding…

Wykonawstwo sp. z o.o", "25 October 2017 ( *1 )"]

25 October 2017 ( *1 ) In that regard, it should be observed that, according to settled case-law of the Court of Justice, Article 267 TFEU establishes a…

Wykonawstwo sp. z o.o", "25 October 2017 ( *1 )"]

25 October 2017 ( *1 ) Second, the Polish Government relies on the objective of preventing abusive practices in order to justify the national legislation at…

Wykonawstwo sp. z o.o", "25 October 2017 ( *1 )"]

Prawo prywatne mięzynarodowe (Law on Private International Law) of 4 February 2011 (Dz. U. No 80, position 432), states: ‘Upon transfer of its head office to…

Wykonawstwo sp. z o.o", "25 October 2017 ( *1 )"]

25 October 2017 ( *1 ) That conclusion is not called into question by the arguments made by the Polish and Austrian governments.

Wykonawstwo sp. z o.o", "25 October 2017 ( *1 )"]

25 October 2017 ( *1 ) In that regard, it is open to the Member States to adopt any appropriate measure for preventing or penalising fraud (judgment of 9 March…

Wykonawstwo sp. z o.o", "25 October 2017 ( *1 )"]

25 October 2017 ( *1 ) Polbud brought an action against that decision before the Sąd Rejonowy w Bydgoszczy (District Court of Bydgoszcz, Poland), which…

Wykonawstwo sp. z o.o", "25 October 2017 ( *1 )"]

25 October 2017 ( *1 ) Second, under the second paragraph of Article 252 TFEU, it is the duty of the Advocate General, acting with complete impartiality and…

Wykonawstwo sp. z o.o", "25 October 2017 ( *1 )"]

25 October 2017 ( *1 ) Pursuant to Article 83 of its Rules of Procedure, the Court may at any time, after hearing the Advocate General, order the reopening of…

Wykonawstwo sp. z o.o", "25 October 2017 ( *1 )"]

25 October 2017 ( *1 ) Accordingly, although it may in principle transfer its registered office to a Member State other than the Republic of Poland without the…

Wykonawstwo sp. z o.o", "25 October 2017 ( *1 )"]

25 October 2017 ( *1 ) It follows that, in the main proceedings, the fact that it was decided to transfer to Luxembourg the registered office alone of Polbud…

Wykonawstwo sp. z o.o", "25 October 2017 ( *1 )"]

25 October 2017 ( *1 ) Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the…

Wykonawstwo sp. z o.o", "25 October 2017 ( *1 )"]

25 October 2017 ( *1 ) Article 49 TFEU requires the abolition of restrictions on freedom of establishment. It is settled case-law that all measures which…

Wykonawstwo sp. z o.o", "25 October 2017 ( *1 )"]

25 October 2017 ( *1 ) In support of its request, Polbud claims, in essence, first, that, contrary to what is stated in the request for a preliminary ruling…

Wykonawstwo sp. z o.o", "25 October 2017 ( *1 )"]

25 October 2017 ( *1 ) Polbud is a limited company established in Łąck (Poland). By a resolution of 30 September 2011, an extraordinary general meeting of…

Wykonawstwo sp. z o.o", "25 October 2017 ( *1 )"]

25 October 2017 ( *1 ) The Court has held that freedom of establishment extends to a situation in which a company formed in accordance with the legislation of…

Wykonawstwo sp. z o.o", "25 October 2017 ( *1 )"]

25 October 2017 ( *1 ) In the light of the foregoing, the Court considers that there is no need to reopen the oral part of the procedure.

Wykonawstwo sp. z o.o", "25 October 2017 ( *1 )"]

Wykonawstwo sp. z o.o. (‘Polbud’) against the decision to refuse its request that it be removed from the Polish commercial register, made following the…

Wykonawstwo sp. z o.o", "25 October 2017 ( *1 )"]

25 October 2017 ( *1 ) Third, the referring court states that, according to the Court’s case-law, it is, as a general rule, permissible to check whether an…

Wykonawstwo sp. z o.o", "25 October 2017 ( *1 )"]

25 October 2017 ( *1 ) It follows that the mandatory liquidation required by the national legislation at issue in the main proceedings goes beyond what is…

Wykonawstwo sp. z o.o", "25 October 2017 ( *1 )"]

25 October 2017 ( *1 ) By its first and second questions, which can be examined together, the referring court seeks, in essence, to ascertain whether Articles…

Wykonawstwo sp. z o.o", "25 October 2017 ( *1 )"]

25 October 2017 ( *1 ) According to the Court’s settled case-law, such a restriction on freedom of establishment is permissible only if it is justified by…

Wykonawstwo sp. z o.o", "25 October 2017 ( *1 )"]

25 October 2017 ( *1 ) In the light of the foregoing, the answer to the third question is that Articles 49 and 54 TFEU must be interpreted as meaning that…

Wykonawstwo sp. z o.o", "25 October 2017 ( *1 )"]

25 October 2017 ( *1 ) Second, as regards the judgments of 27 September 1988, Daily Mail and General Trust (81/87, EU:C:1988:456), and of 16 December 2008…

Wykonawstwo sp. z o.o", "25 October 2017 ( *1 )"]

25 October 2017 ( *1 ) Consequently, the questions referred must be answered on the basis of that premiss, the accuracy of which it is, however, for the…

Wykonawstwo sp. z o.o", "25 October 2017 ( *1 )"]

25 October 2017 ( *1 ) It must be observed that that legislation prescribes, in general, mandatory liquidation, there being no consideration of the actual risk…

Wykonawstwo sp. z o.o", "25 October 2017 ( *1 )"]

25 October 2017 ( *1 ) its registered office to that other Member State without changing its main head office, which remains in the State of initial…