Your group has a Polish subsidiary - a limited liability company (sp. z o.o.) - it no longer wants to run as a separate company. The operations can sit directly under the parent, and head office would rather have one legal entity than two. The obvious question from the parent’s general counsel is whether you can simply merge the Polish company upward into the foreign parent in one step - and, if so, what the Polish side actually involves now that the rules were rewritten in 2023.
You can. This is a cross-border merger by acquisition (transgraniczne łączenie przez przejęcie), with the Polish company as the acquired company and the foreign parent as the acquiring company. What follows is the Polish-law view of it, for the direction that comes up most often: the Polish subsidiary disappearing into a parent registered elsewhere in the EU or EEA.
Yes - but only into an EU or EEA parent
A Polish company may merge with a foreign company only where that company was formed under the law of an EU Member State or an EEA state and has its registered office, central administration or principal place of business inside the EU or EEA (Art. 491 § 1¹ of the Commercial Companies Code - Kodeks spółek handlowych, “KSH”). That is the first gate, and it is a hard one: a parent incorporated in the United States, the United Kingdom or Switzerland cannot use this route. If your ultimate parent sits outside the EEA, the merger has to run into an intermediate EU or EEA holding company, or you reach the same end state by a different structure - a separate conversation.
Assume the parent qualifies. The merger transfers the whole of the Polish company’s assets and liabilities to the parent by universal succession (Art. 494 KSH): contracts, receivables, debts, employees and - subject to the point below - permits move across by operation of law, without individual assignments. The Polish company is then dissolved without liquidation. In plain terms: one company absorbs the other, and nothing has to be transferred item by item.
Because the parent owns 100%, most of the procedure disappears
A cross-border merger looks heavy on paper. The wholly-owned case is much lighter, because the KSH borrows the logic of the domestic simplified merger and applies it across the border (Art. 516¹⁵ KSH).
Where the acquiring parent holds all the shares and issues no new shares, the plan need not state an exchange ratio and there is no expert examination of the plan - the exchange ratio is what an expert would normally check, and here there is none. On the Polish subsidiary’s side, two further steps fall away: no shareholders’ resolution approving the merger, and no management-board report for shareholders or employees. The reason is practical - the only shareholder is the party absorbing the company, so a resolution and a report to it would be an empty formality.
For precision: this clean version holds at 100%. If the parent holds at least 90% but not all of the Polish company, the simplification narrows - the expert-examination provisions come back for the Polish company (Art. 516¹⁵ § 3 KSH), and minority shareholders acquire buy-out rights. Polish commentators regard that 90% rule as a drafting error out of step with EU law, but it is the law until it is changed.
What the Polish side still requires - and where it ends
Three things still have to happen on the Polish side. First, a cross-border merger plan (Art. 516³ KSH), which even in the simplified case must still carry the essentials - the companies’ identification, the safeguards offered to creditors, the accounting dates, and the draft articles of association of the parent drawn up under its law. Second, the plan is filed with the registry court at least 5 weeks before it is acted on, or published on the company’s website instead (Art. 516⁴ KSH), which opens the window for creditors and employees to comment. Third - and this is the endpoint - the company applies for the pre-merger certificate (zaświadczenie o zgodności z prawem, Art. 516¹² KSH).
That certificate matters because the Polish part of the process is only half of it. Up to the day the certificate is received, the Polish company’s side of the merger is governed by Polish law; from that day, the merger is governed by the parent’s law (Art. 516¹ § 2 KSH). So, unlike a domestic merger, you do not fix a Polish “merger date.” Once the Polish court issues the certificate, completion and the effective date happen under the parent’s law, on registration in the parent’s state; the Polish company is then removed from the National Court Register (KRS) once that foreign registration is notified. When you tell counterparties when the change takes effect, it is the parent’s registration date you point to, not a Polish one.
The real gate since 2023: the certificate, the abuse test and the tax opinion
Before 2023 the certificate was a formality check. It is now the point where a cross-border merger can actually be stopped, and it is worth understanding why.
The registry court has 3 months to issue the certificate, extendable by a further 3 (Art. 516¹² § 6 and § 10 KSH). It does two things. It confirms the file is complete and formally correct - it does not re-open the commercial merits, the value of the company or the exchange ratio; those are not its job (the court’s role is much the same as in a domestic merger). And, following the 2023 reform, it must refuse the certificate if the merger serves an abuse, breach or evasion of law.
The same reform folded a tax screen into the procedure. The certificate application triggers an opinion from the Head of the National Revenue Administration (Szef KAS), who checks whether the merger raises a reasonable suspicion of tax avoidance - under the general anti-avoidance rule, the treaty anti-abuse rules or the VAT abuse rule - and confirms that the company’s tax and other public-law liabilities owed to the tax administration are paid or secured. That opinion has its own clock - up to 1 month, extendable by 3 - running alongside the court’s, and it is a large part of why this is not a quick procedure.
The abuse test itself is narrower than it sounds. A cross-border merger inevitably changes which law governs the company and which creditors and shareholders can rely on - the Court of Justice has said as much (case C-106/16, Polbud), and that change is a normal feature of the operation, not abuse. Polish commentators read the test as requiring concrete facts pointing to the merger being used solely to strip a particular group of its rights; a general complaint that the company is leaving Poland is not enough. There is also a statutory presumption in the company’s favour where, after the merger, the parent has its real management or carries on business in the state where it is registered.
Can creditors stop it? No
They cannot. The domestic creditor-protection machinery - separate management of the merged estates and the 6-month security window - does not apply where the acquiring company is foreign (Art. 516¹⁰ KSH). What a creditor of the Polish company gets instead is a right to demand security for claims that are not yet due, within 1 month of the plan being disclosed, and only if it makes a real, merger-caused threat to being paid plausible. It must ask the company first; if refused, it can go to court within 3 months of disclosure.
Two features make this a protection, not a veto. The creditor’s application does not hold up the certificate, and security cannot take the form of stopping the merger. And the threat has to be real: the mere fact that the company will be governed by another country’s law is not, on its own, enough (again Polbud). The domestic contrast, where a creditor has more leverage, is a separate topic.
What this means for you
At the corporate-law level the picture is simple: the Polish company disappears and everything it held is now the parent’s, by universal succession. That is the whole legal effect.
The part that surprises finance teams is what happens next, and it is not an effect of the merger. If the business carries on in Poland - the same people, premises and locally-performed contracts - the parent is now a foreign company trading in Poland. That usually means a Polish branch to register and, on the tax side, a permanent establishment. The merger did not make the Polish operation vanish; it re-hung it under the parent. Whether a branch and a permanent establishment arise depends on whether, and how, activity continues here - a question for your corporate and tax advisers, not a consequence of the merger itself. Employees follow the business under the transfer-of-undertaking rules; the separate question of employee participation rights in the merged company can apply and can add time.
Watch out
- EU or EEA parent only. A parent outside the EEA cannot use this route.
- The ZUS certificate. The certificate file must include a social-security (ZUS) certificate on the number of insured persons and no arrears. It is easy to leave to the end and slow to obtain - start it early.
- Clear tax liabilities first. The tax opinion also confirms the company’s tax and other public-law liabilities owed to the tax administration are paid or secured - settle or secure them early, or the opinion, and with it the certificate, stalls.
- Exit tax and permanent establishment. For precision: moving assets or functions out of Poland can trigger Polish exit taxation, and continuing to operate here can create a permanent establishment for the parent. Neither is a reason not to merge, but both should be modelled before you commit - confirm with your Polish tax adviser.
- Timetable. The certificate can take 3 months, extendable by 3, with a separate tax-authority opinion (up to 1 month, extendable by 3) running alongside. This is not a matter of weeks; plan the transaction calendar around the certificate.
- Real estate and permits. Most rights pass by universal succession, but Polish real estate passing to a non-EEA-controlled parent, and sector permits, can need separate attention.
Next steps
- Confirm the parent is an EU or EEA company and owns 100% of the Polish company.
- Map what stays in Poland - people, assets, contracts, real estate, permits - and take the branch, permanent-establishment and exit-tax questions to your tax adviser before drafting.
- Agree the cross-border merger plan on both sides, including the parent’s articles of association under its own law.
- File or publish the plan and run the 1-month creditor window.
- Assemble the certificate file - including the ZUS certificate - and apply to the registry court, which forwards the tax-opinion request.
- After the Polish certificate, completion and the effective date follow the parent’s law abroad; the Polish company is removed from the KRS on notification.