Case C-106/16 | Polbud – Wykonawstwo sp. z o.o.

Author (Corporate)
Series Details C-106/16
Publication Date 2017
Content Type


Case brought to the Court of Justice of the European Union (CJEU) by the Polish Supreme Court (Sąd Najwyższy), seeking clarification on: 1) whether freedom of establishment is applicable to the transfer of only the registered office of a company incorporated under the law of one Member State to the territory of another Member States, where that company is converted to a company under the law of that other Member State, when there is no change of location of the real head office of that company; 2) whether Polish legislation, that provides that removal of a company from the commercial register is dependent on the winding-up of the company following a liquidation procedure, is compatible with freedom of establishment.

Further information:

The CJEU clarified on 25 October 2017 that Member States may not impose mandatory liquidation on companies that wish to transfer their registered office to another Member State. The transfer of the registered office of such a company, when there is no change in the location of its real head office, falls within the scope of the freedom of establishment protected by EU law.

Polbud is a limited company established in Poland. By a resolution in 2011, an extraordinary general meeting of shareholders of that company decided to transfer the company’s registered office to Luxembourg. That resolution makes no reference to a transfer to Luxembourg of either the place where Polbud’s business is managed or of the place where that company’s business is actually carried out. On the basis of that resolution, the opening of a liquidation procedure was recorded in the Polish commercial register and a liquidator was appointed.

In May 2013, Polbud’s registered office was transferred to Luxembourg and that company was no longer named ‘Polbud’ but became ‘Consoil Geotechnik’ under Luxembourg law. Further, Polbud lodged an application at the Polish registry court for its removal from the Polish commercial register. The registry court refused the application for removal. Polbud brought an action against that decision. The claim was brought before the Sąd Najwyższy (Supreme Court of Poland), which then asked the ECJ to intervene in the case.

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Related Links
Commentary and Analysis
Conflict of Laws: Views, 28.10.17: Freedom of establishment after Polbud: Free transfer of the registered office
GAVC Law, 25.10.17: Free movement of companies and Polbud. The CJEU is not for turning
University of Oxford: Faculty of Law: Blog, 05.07.17: Changes of Lex Societatis: A Quick Comment on the Polbud Case
Corporate Finance Lab, 25.10.17: Polbud: ECJ further facilitates shopping for company law
University of Leiden: Leiden Law Blog, 04.12.17: The New Delaware and its Kirchberg Plateau

CJEU: Press Release, 25.10.17: Judgment of the Court of Justice in Case C-106/16 Polbud - Wykonawstwo sp. z o.o.

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