Abstract

Pursuant to Article 92 of the Act of 2 July 2004 on freedom of economic activity, a foreign entrepreneur who intends to terminate business operations conducted through a branch office should carry out the liquidation proceedings according to the regulations for liquidation of a limited liability company. A Polish entrepreneur has no such duty. This is why such an obligation imposed on a foreign entrepreneur established in a EU Member State or the European Economic Area (EEA) is in breach of the EU law. It causes incompatibility of the legal norm under Article 92 of the Act on freedom of economic activity with the provisions of Articles 49–54 of the Treaty on the Functioning of the European Union, which have precedence before national law. In this article, the authoress presents arguments supporting this assertion. In addition, resolutions of such conflict, including the possibility to refer to the pro-European interpretation of Article 92 of the Act on freedom of economic activity, or refusal of such reference by a Polish court, are discussed. In the event the Polish court passes a judgment basing only on Article 92, the foreign entrepreneur may refer to the principle of a Member State liability for infringement of the EU law. The authoress presents de lege ferenda postulates against the background of the existing legal environment.