Pursuant to Article 494 of the Commercial Companies Code, the acquiring company or the newly formed company assumes, as of the date of the merger, all the rights and obligations of the company being acquired or of the companies merging through the formation of a new company. Furthermore, on the date of the merger, the acquiring company or the newly formed company assumes, in particular, the permits, licences and concessions granted to the acquired company or to any of the companies merging through the formation of a new company, unless the law or the decision granting the permit, licence or concession provides otherwise.
In view of the above, a key stage in preparing for the merger of commercial companies should be to identify decisions requiring special attention and to plan the necessary actions even before the transaction is finalised.
Dynamic changes in the renewable energy market and business reorganisation
Reorganisation processes in the energy sector require particular attention with regard to compliance with administrative regulations. Companies operating under licences granted by the President of the Energy Regulatory Office (URE), regardless of whether they are engaged in the generation, trading or distribution of electricity, are obliged to comply with a number of requirements arising both from the Energy Law and from the terms of the licence decisions themselves.
Although, in accordance with the provisions of the Commercial Companies Code, a merger takes place on the basis of universal succession, in relation to licensed activities this mechanism does not imply an automatic transfer of the licence without any intervention by the regulatory authority. On the contrary – the President of the URE must be able to assess whether the acquiring company continues to meet all the conditions for conducting energy activities.
The process of merging energy companies and the necessary formalities
In the case of companies holding a licence for electricity generation, the most common obligation is the requirement to notify the President of the Energy Regulatory Office in advance of the planned merger. Although the deadline for informing the President of the Energy Regulatory Office of the planned restructuring is not specified in statutory provisions, it is very often set out in the licence decision as a condition for its retention. This obligation serves to enable the President of the Energy Regulatory Office to assess whether the new entity – the acquiring company – guarantees the proper continuation of operations, both financially and in technical and organisational terms.
Similar obligations apply in the case of licences for electricity trading. Here too**,** licence holders are often required to immediately inform the President of the Energy Regulatory Office of a planned reorganisation, for example within 30 days of the planned merger date.
The most stringent regime applies to companies operating in the field of energy distribution. In the case of electricity distribution licences (DEE), the obligation to give prior notice of a reorganisation is absolute and usually also involves the need to submit a much more extensive set of documents. The acquiring company must demonstrate that it possesses not only the formal right to continue operations, but also the appropriate infrastructure resources. In this case, the President of the Energy Regulatory Office has significantly greater scope for substantive assessment and may – in case of doubt – not only refuse to amend the licence, but also restrict its scope or revoke it.
Regardless of the type of licensed activity carried out, all acquiring companies are required to submit an application to the President of the Energy Regulatory Office for a licence amendment following the merger. Pursuant to Article 37(2c) of the Energy Law, “In the event of a change to the data referred to in paragraph 1(1) and (7) and paragraph 2a, an energy undertaking is obliged to submit an application for a licence amendment no later than 7 days from the date on which such changes occur.” These cases concern: the name of the entity, its registered office or place of residence and their address, the subject and scope of the activity covered by the licence, the number in the register of entrepreneurs in the National Court Register, where the entrepreneur holds such a number, or the number in an equivalent register of a Member State of the European Union, the Swiss Confederation, a Member State of the European Free Trade Association (EFTA) – a party to the Agreement on the European Economic Area – or Turkey, and the tax identification number (NIP).
The merger of energy companies constitutes a change to the data referred to in Article 37(2c) of the Energy Law. – as it concerns the entity’s identification details, its legal form, ownership structure or decision-making bodies. The deadline for submitting an application to amend the licence is 7 days from the date of entry of the merger in the Register of Entrepreneurs of the National Court Register.
Consequences of failing to comply with obligations in the process of merging energy companies
All the obligations listed are of a public law nature and failure to comply with them may lead to far-reaching consequences – ranging from financial penalties, through a restriction of the scope of the licence, to its revocation. For this reason**, whenever a reorganisation of energy companies is planned, it is advisable to analyse the content of existing licences in advance, determine the scope of disclosure obligations towards the President of the Energy Regulatory Office (URE), and prepare the required applications and supporting documentation**. Only such an approach guarantees that the merger process will proceed smoothly and without the risk of losing the right to conduct regulated activities.
In his decisions and interpretations (available, inter alia, in the ERO Public Information Bulletin), the President of the ERO has repeatedly emphasised that failure to give adequate advance notice may be treated as a breach of the licence conditions — which may result in sanctions, such as a financial penalty or the revocation of the licence.
Key aspects of the merger process in the renewable energy sector
For companies operating in the renewable energy sector, the merger process involves not only the need to resolve issues relating to electricity generation licences issued by the President of the Energy Regulatory Office, but also the need to review a range of other administrative decisions to which the acquired company is a party. This primarily concerns decisions that are crucial for the implementation of infrastructure projects – such as planning permission decisions, environmental decisions, site selection decisions or water law permits.
Although these decisions are not of a concessionary nature, they often determine the possibility of continuing investment or operational activities, particularly in areas subject to special environmental or urban planning protection. Unlike licences, which as a rule are transferred to the acquiring company by universal succession, some of these decisions may – depending on specific regulations – expire, lose their validity, or require re-obtaining, or notification of changes to the competent administrative authority.
For this reason, before taking formal steps leading to the merger of energy companies, it is essential to conduct a comprehensive audit of the administrative decisions held – both those obtained during the investment preparation stage and those regulating the ongoing operation of the installations. Such an analysis should include, amongst other things, identifying decisions requiring updating, assessing whether these decisions are transferred as part of the succession, and determining whether they are subject to additional legal or procedural conditions.
The conclusions of such an analysis should then be incorporated into the timetable for the entire merger process – together with clearly assigned duties, deadlines and responsibility for their implementation. It may be particularly important to ensure the continued validity of environmental decisions, which often form the basis for obtaining further permits, and the loss of which could result in projects being halted or even having to be restarted.
Ultimately, it should be emphasised that the transfer of licences, permits and administrative decisions is a key, but not the only, aspect of the merger process in the renewable energy sector. It is equally important to ensure the consistency of the new entity’s entire legal and operational model – including compliance with planning and environmental requirements and the conditions for the location of the investment. Only a comprehensive approach to these issues allows for the safe and effective execution of the consolidation process of energy companies within a dynamically evolving regulatory environment.
Merger of energy companies – Summary
In summary, it should be noted that the merger of energy companies holding licences for the generation, trading or distribution of energy entails significant obligations towards the President of the Energy Regulatory Office. In addition to the formal succession of rights and obligations, regulatory practice requires, among other things, prior notification of the planned reorganisation, the submission of an application to amend the licence, and a demonstration that the acquiring company meets all the conditions for carrying out regulated activities. Depending on the scope of the licence, it may also be necessary to update data in the Energy Regulatory Office’s registers, supplement technical documentation, or ensure the continuity of reporting obligations.
It is recommended that any planned merger in the energy sector be preceded by a detailed audit of licences and administrative decisions, and that the process timetable take into account the required actions vis-à-vis the Energy Regulatory Office. Close cooperation with specialists familiar with the practices of the President of the Energy Regulatory Office and the proper preparation of documentation are key to ensuring a smooth merger and maintaining full compliance with public law requirements.
He gained his professional experience in one of Lublin's renowned law firms, dealing with civil and business law in its broadest sense. At the law firm Hewelt Wojnowski i Wspólnicy spółka komandytowa, he deals on a daily basis with current counseling in the field of business and the development of corporate documentation of companies, such as. Company agreements, bylaws of company bodies, agreements regulating relations between shareholders, resolutions of company bodies, M&A transactions. In addition to…
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