Opinion of the Advocate General — ECLI:EU:C:2017:351
Date: 2017-05-04
Language of the case: Polish
Based on: Treaty on the Functioning of the European Union (consolidated version 2008)
Subject matter: Right of establishment
Procedure: Reference for a preliminary ruling
Origin: Poland

summary-of-responses_en.pdf). No further action appears to have been taken as yet. 7 A functionally similar outcome could, at most, be achieved under Directive 2005/56 (cited in footnote 2), in the form of a cross-border merger. On this basis, however, the transferring legal entity would be wound up without retaining its legal identity (see Article 2(2) of the Directive). 8 See judgment of 12 July 2012, VALE (C‑378/10, EU:C:2012:440, paragraphs 19 and 23). 9 See judgment of 12 July 2012, VALE (C‑378/10, EU:C:2012:440). 10 See judgment of 16 December 2008, Cartesio (C‑210/06, EU:C:2008:723, paragraph 47). 11 Judgments of 12 July 2012, VALE (C‑378/10, EU:C:2012:440, paragraph 24), and of 13 December 2005, SEVIC Systems (C‑411/03, EU:C:2005:762, paragraph 19). 12 See judgments of 16 December 2008, Cartesio (C‑210/06, EU:C:2008:723, paragraphs 109 and 110); of 29 November 2011, National Grid Indus (C‑371/10, EU:C:2011:785, paragraphs 26 and 27); and of 12 July 2012, VALE (C‑378/10, EU:C:2012:440, paragraphs 28 and 29). 13 See judgments of 21 June 1974, Reyners (2/74, EU:C:1974:68, paragraph 21); of 30 November 1995, Gebhard (C‑55/94, EU:C:1995:411, paragraph 25); of 14 September 2006, Centro di Musicologia Walter Stauffer (C‑386/04, EU:C:2006:568, paragraph 18); and of 26 October 2010, Schmelz (C‑97/09, EU:C:2010:632, paragraph 37). 14 See judgments of 14 September 2006, Centro di Musicologia Walter Stauffer (C‑386/04, EU:C:2006:568, paragraph 19), and of 26 October 2010, Schmelz (C‑97/09, EU:C:2010:632, paragraph 38). 15 Judgments of 25 July 1991, Factortame and Others (C‑221/89, EU:C:1991:320, paragraph 20), and of 4 October 1991, Commission v United Kingdom (C‑246/89, EU:C:1991:375, paragraph 21). 16 See judgments of 12 September 2006, Cadbury Schweppes and Cadbury Schweppes Overseas (C‑196/04, EU:C:2006:544, paragraph 54); of 12 July 2012, VALE (C‑378/10, EU:C:2012:440, paragraph 34); and of 21 December 2016, AGET Iraklis (C‑201/15, EU:C:2016:972, paragraph 51). 17 See judgments of 12 July 2012, VALE (C‑378/10, EU:C:2012:440, paragraph 34), and of 21 December 2016, AGET Iraklis (C‑201/15, EU:C:2016:972, paragraph 51). 18 Judgment of 12 September 2006, Cadbury Schweppes and Cadbury Schweppes Overseas (C‑196/04, EU:C:2006:544, paragraph 54). 19 See judgment of 11 December 2003, Schnitzer (C‑215/01, EU:C:2003:662, paragraph 32). In particular cases, the renting of premises for business purposes may be sufficient; see the judgments of 18 June 1985, Steinhauser (197/84, EU:C:1985:260, paragraph 16), and of 4 December 1986, Commission v Germany (205/84, EU:C:1986:463, paragraph 21). Mere registration in the host State, on the other hand, is not sufficient; see the judgment of 25 July 1991, Factortame and Others (C‑221/89, EU:C:1991:320, paragraph 21). 20 See judgment of 12 July 2012, VALE (C‑378/10, EU:C:2012:440, paragraph 35). 21 I shall take the liberty here of referring to the comments made by Polbud’s counsel at the hearing, to the effect that, contrary to the account given in the request for a preliminary ruling, the company relocated its entire business to Luxembourg and no longer carries on any economic activities in Poland. It is a matter for the referring court, however, to reach a definitive conclusion on this issue. 22 Judgment of 16 December 2008, Cartesio (C‑210/06, EU:C:2008:723). 23 Judgment of 16 December 2008, Cartesio (C‑210/06, EU:C:2008:723, paragraph 110). 24 Judgment of 16 December 2008, Cartesio (C‑210/06, EU:C:2008:723, paragraph 111). 25 See paragraph 47 of that judgment. 26 Judgment of 9 March 1999, Centros (C‑212/97, EU:C:1999:126). 27 Judgment of 30 September 2003, Inspire Art (C‑167/01, EU:C:2003:512). 28 See judgment of 12 July 2012, VALE (C‑378/10, EU:C:2012:440, paragraph 37). 29 See judgments of 30 November 1995, Gebhard (C‑55/94, EU:C:1995:411, paragraph 37); 17 October 2002, Payroll and Others (C‑79/01, EU:C:2002:592, paragraph 26); of 5 October 2004, CaixaBank France (C‑442/02, EU:C:2004:586, paragraph 11); of 29 November 2011, National Grid Indus (C‑371/10, EU:C:2011:785, paragraph 36); and of 21 December 2016, AGET Iraklis (C‑201/15, EU:C:2016:972, paragraph 48). 30 See, to that effect, the judgment of 16 December 2008, Cartesio (C‑210/06, EU:C:2008:723, paragraph 112 et seq.). 31 See judgments of 30 November 1995, Gebhard (C‑55/94, EU:C:1995:411, paragraph 37); of 15 May 1997, Futura Participations and Singer (C‑250/95, EU:C:1997:239, paragraph 26); of 12 September 2006, Cadbury Schweppes and Cadbury Schweppes Overseas (C‑196/04, EU:C:2006:544, paragraph 47); of 29 November 2011, National Grid Indus (C‑371/10, EU:C:2011:785, paragraph 42); and of 21 December 2016, AGET Iraklis (C‑201/15, EU:C:2016:972, paragraph 61). See also the judgment of 16 December 2008, Cartesio (C‑210/06, EU:C:2008:723, paragraph 113). 32 See judgments of 12 May 1998, Kefalas and Others (C‑367/96, EU:C:1998:222, paragraph 20); of 23 March 2000, Diamantis (C‑373/97, EU:C:2000:150, paragraph 33); of 21 February 2006, Halifax and Others (C‑255/02, EU:C:2006:121, paragraph 68); of 13 March 2014, SICES and Others (C‑155/13, EU:C:2014:145, paragraph 29); and of 28 July 2016, Kratzer (C‑423/15, EU:C:2016:604, paragraph 37). 33 See, to that effect, judgments of 4 March 2004, Commission v France (C‑334/02, EU:C:2004:129, paragraph 27); of 9 November 2006, Commission v Belgium (C‑433/04, EU:C:2006:702, paragraph 35); of 28 October 2010, Établissements Rimbaud (C‑72/09, EU:C:2010:645, paragraph 34); and of 5 July 2012, SIAT (C‑318/10, EU:C:2012:415, paragraph 38). 34 See judgment of 9 March 1999, Centros (C‑212/97, EU:C:1999:126, paragraph 38). 35 See judgments of 5 November 2002, Überseering (C‑208/00, EU:C:2002:632, paragraph 92); of 13 December 2005, SEVIC Systems (C‑411/03, EU:C:2005:762, paragraph 28); and 12 July 2012, VALE (C‑378/10, EU:C:2012:440, paragraph 39). 36 See judgments of 13 December 2005, SEVIC Systems (C‑411/03, EU:C:2005:762, paragraph 30), and of 12 July 2012, VALE (C‑378/10, EU:C:2012:440, paragraph 40). 37 See judgments of 9 March 1999, Centros (C‑212/97, EU:C:1999:126, paragraph 36), and of 30 September 2003, Inspire Art (C‑167/01, EU:C:2003:512, paragraph 135). 38 See, by analogy, Article 13(2)(2) of Directive 2011/35/EU of the European Parliament and of the Council of 5 April 2011 concerning mergers of public limited liability companies (OJ 2011 L 110, p. 1), as well as judgment of 9 March 1999, Centros (C‑212/97, EU:C:1999:126, paragraph 37). 39 This is certainly the case under Regulation (EU) No 1215/2012 of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (‘Brussels Ia Regulation’; OJ 2012 L 351, p. 1); see Article 4(1) in conjunction with Article 63(1)(b) of that regulation. Furthermore, for the purposes of insolvency law too, Polish courts are to be regarded as having international jurisdiction, since, in the circumstances of the present case, the centre of the company’s main interests within the meaning of Article 3(1) of Regulation (EU) 2015/848 of 20 May 2015 on insolvency proceedings (OJ 2015 L 141, p. 19) is to be found in Poland. See also in this regard judgment of 10 December 2015, Kornhaas (C‑594/14, EU:C:2015:806). 40 See, to that effect, Article 16(2) of Directive 2004/25/EC of 21 April 2004 on takeover bids (OJ 2004 L 142, p. 12). 41 In contrast, the location of a company’s statutory seat does not usually have any bearing on the extent of operational co-determination rights, that is to say rights that serve to protect specific interests of the workforce. 42 See recital 13 of Directive 2005/56 (cited in footnote 2). 43 Cited in footnote 2.