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.

The article is the second part of the study aimed at presenting the rules of protection of employees' participation rights under EU law in the context of cross-border company reorganisations (Part I) and their implementation in Polish law. This part critically examines some of the provisions of the Act of 26 May 2023 on the Participation of Employees in a Company Resulting from a Cross-Border Conversion, Merger or Division of Companies. As will be shown, they constitute an improper transposition of EU law, which creates certain risks both for Polish companies involved in cross-border reorganisations and for their employees who are or may be entitled to participation rights.

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).