The interpretation of the company interest has for years been the subject of lively debate in Polish company-law academia. In this article, which contributes to that debate, we propose shifting its focus from doctrinal attempts to define the company’s interest and from abstract, a priori hierarchies among the interests it is said to encompass to a more precise specification of the duties incumbent on corporate decision-makers when making business decisions in the course of managing the company’s affairs. We proceed from the premise that, in the context of managerial decision-making, what matters is not settling – “in the abstract” – how the company’s interest should be understood or whether the interests of its members (shareholders) should invariably take precedence over other, especially non-financial, objectives, but rather assessing whether the relevant body acted within the bounds of the managerial discretion afforded to it. The determination of what lies in the company’s interest should be left to the company’s office-holders (i.e., members of the management board and the supervisory board, and in a simple joint-stock company (PSA) also directors), who, when making such determinations, enjoy managerial discretion, provided they comply with the statutory duties of loyalty and care and with the requirements arising from the recently codified business-judgment rule.

On 25 April 2002, the Court of Justice (hereinafter: the Court or the Court of Justice) delivered a judgment in Case C-276/22 Edil Work 2 Srl, which had been brought by the Italian Court of Cassation (Corte suprema di cassazione) on the basis of a preliminary question. In its judgment, the Court ruled that it is contrary to the EU freedom of establishment (Articles 49 and 54 of the Treaty on the Functioning of the European Union) to apply generally the rules of a Member State to assess the effectiveness of the activities of the board of directors of a company established in another Member State but which carries out the main part of its activities in the first Member State. This provision is important for the ability of companies to carry out cross-border activities without being hindered by the law of the country in which the actual activity is carried out. The aim of this article is therefore to analyse the Court's reasoning and to outline the possible consequences of the judgment for companies operating on the single market.

Directive (EU) 2019/2121 of the European Parliament and of the Council amending Directive (EU) 2017/1132 introduces provisions on the protection of participation rights of employees of a limited liability company subject to a cross-border conversion, merger or division (Articles 86l, 133, 160l of Directive 2017/1132). The model for the protection of participation rights is based on one basic principle, i.e. the application of the rules of the company seat resulting from the reorganisation, and three exceptions to this principle. This model raises significant questions due to the vague definition of the exceptions to the basic principle and the system of references to other existing EU legislation. Therefore, the aim of this two-part article is to first analyse the principles of protection of participation rights in EU law (Part I) and then critically discuss their implementation in Polish law (Part II).