In recent months the ways in which businesses develop have changed, which makes it possible to look more openly at how to transfer businesses from one country to another. Polish entrepreneurs are increasingly talking about the need for business development and business expansion into Europe or the USA, and it is becoming more and more commonplace for a company to move its headquarters from one country to another. It is now possible to move within the European Union or to Switzerland, and it is becoming even more common to do it through the Polish courts.
COMPANY TRANSFER FROM ONE COUNTRY TO ANOTHER – HOW TO MAINTAIN BUSINESS CONTINUITY
The premise of this process, known as redomiciliation (our article ‘Redomiciliation, or how to move a business to another country’ provides more information on that matter), is the transfer of the registered office of a company established in accordance with the legislation of an EU Member State to another country within the European Union. Redomiciliation has been possible since 2017 when the landmark rulings of the Court of Justice of the European Union (CJEU), followed by the Polish Supreme Court were made. As a direct result of those decisions and in line with the rules on free movement of capital, a company may now be relocated without first being wound up.
For example, a company in Poland may cease operations there and start operating in Luxembourg instead; or a company in Malta could start operating in Warsaw, register with the Polish National Court Register (KRS) and deregister from the Commercial Register in Malta.
And although, the current Polish legislation alongside the various laws in force in many other countries still uses processes of deregistration similar to those put in place for winding a company up, there is no actual need for the company to close down. Such company may operate from another location in Europe from a specific date.
In some countries registers work blindfolded since everything is based on precedents, there are no rules on implementation, sometimes there is no set practice either. Although this process is relatively straightforward, it is important to work with a lawyer experienced in this area and if possible (and there is a way to influence this) also with an experienced court in the country of your choice. If those conditions can be met then the process is quite quick. Our record here at Panasiuk & Partners is 5 weeks.
It is however possible for this to go differently than planned. Given that this process involves lawyers and courts (or registry authorities) in two different countries, it is possible for our partner or the court in the chosen country to extend the duration of this process due to their lack of experience.
FROM CYPRUS TO POLAND – ANALYSIS OF THE PROCESS OF MOVING A COMPANY’S HEADQUARTERS
Below is a detailed analysis of this process. Our test case is the transfer of a company’s headquarters from Nicosia in Cyprus to Warsaw in Poland. For completeness, we demonstrate all the hurdles that can extend the duration of the process. Putting all of one’s ducks in a row in advance will help to smooth out the process.
In practical terms, the process itself is more akin to the winding up of a company than a change of registered office. The necessary steps are broken down into several stages:
- Making changes to the statute of the Cyprus company which consists of an amendment stating the company can move its headquarters to countries within the European Union (standard provisions of Cyprus companies’ articles of association do not foresee this option); adopting a shareholder resolution regarding the acceptance of amendments to the articles of association; notifying the Cyprus Registrar of Companies of the change;
- Obtaining consent to transfer the registered office of the company to another country within the European Union from the Cyprus Registrar of Companies and publishing a notice of the company shareholders resolution in two journals (a copy of the publication must be submitted to the registrar of companies within 14 days of the date of publication);
The application for consent must be accompanied by a statement from the company directors which shall include: the company details, the type of business, the proposed name for the company that will operate outside Cyprus, the new jurisdiction in which the company intends to continue its activities and the name and address of the authority registering the company in the new jurisdiction, as well as the proposed date of incorporation of the company’s new headquarters outside Cyprus.
In addition, obtaining the above-mentioned consent is conditional upon:
- the submission of an interim financial statement showing the market value of the company’s assets, approved by a company shareholders’ resolution
- the submission of a declaration of solvency of the company drawn up by the company directors
- the submission of a tax clearance statement which confirms settlement of all taxes and charges by the company
- Being patient – in Cyprus the wait time is three months from the date of publication, let’s not expect any records to be beaten there.
- Finalising formalities – once all above listed requirements have been met, the Registrar of Companies should agree to the transfer of the company’s registered office to another country. A certificate of registration of the company with the business register in Poland must then be provided to the Cyprus Registrar of Companies, which will subsequently delete the company from its records.
WHAT COULD GO WRONG? WHAT TO WATCH OUT FOR WHEN MOVING A BUSINESS OUT OF CYPRUS
- Deregistration from VAT/VIES. It is crucial to deal with VAT and VIES deregistration matters well in advance. Should tax authorities take on a negative approach towards an operating company (not a holding company), the result could be an enforced cessation of operations.
- Carrying out of business activities until deregistration. It is possible that closing a company’s financial accounts in Cyprus will not necessarily mean an end the reporting responsibilities there. The company’s board should be prepared for the Registrar to request the submission of a statement confirming that the company hasn’t undertaken any business activity between the date the partners agreed the resolution to move the company’s headquarters to the date when permission was granted. This poses a serious problem given the company has every right to carry out its business activities. However, the inadequate procedures of the Cyprus Registrar take an inordinate amount of time, during which a company remains in suspended animation and faces the question of where to carry out its activities – Cyprus or Poland? Before even starting the company redomiciliation process, it is imperative to prepare a detailed timeline and decide who will be responsible for reporting to the tax authorities.
- Keeping an eye on deadlines. During the redomiciliation process to Poland, the company needs to be formally re-established before a Polish notary. Once this has been taken care of there is only a short window of time to submit an application with the Polish National Court Register (KRS). The deadline for submitting these documents is contingent upon the closing of the procedure with the Cyprus Registrar. That’s why it is good practice to prepare in anticipation for all those stages. That way, in the event of a protracted process overseas, it will be possible to avoid any problems with registering the company agreement, already in place, with the KRS.
Panasiuk and Partners’ experience with similar cases has allowed us to support a team of lawyers in Cyprus and help them cooperate with a local court of law to enable them to carry out a smooth trial. With our support and through skilful business justification of the trial – despite doubts raised by the Cyprus court – consent was obtained and today our client’s company is registered with the KRS in Warsaw.
Given the level of complexity in cross-border relationships, it is paramount to prepare a detailed schedule when reorganising and expanding Polish businesses overseas. This allows businesses, as well as clients, to carry on as planned throughout either a straightforward redomiciliation or a more complicated international company reorganisation. Sometimes redomiciliation can successfully replace a much more long-lasting and expensive cross-border company merger. In certain countries, such as Switzerland, cross-border mergers are not possible, whereas redomiciliation is.