Register of Debtors in Poland – deadlines for data of bankrupts and insolvent entities
Publication date: March 07, 2024
Central Register of Debtors and Insolvencies in Poland – implementation of Regulation 2015/848
The deadline for the implementation of the duty by Poland for the purposes of e-Justice system of the obligations under the Regulation 2015/848 of the European Parliament and of the Council of 20 May 2015 on insolvency proceedings was in principle the year 2018. Currently there functions the centralized Register of Debtors, but the register is still not fully functionable. The specific Act of law that implemented the provisions of the Regulation is the Act of December 6, 2018 on the National Register of Debtors (consolidated text: Journal of Laws of 2021, item 1909, as amended).
The Register of Debtors is available here:
From the justification of the draft act published on the Parliament’s website in the legislative path: https://www.sejm.gov.pl/sejm8.nsf/druk.xsp?nr=2637
(it was a draft of the Ministry of Justice, not of MPs, so the act was created with the justification of the government legislative center, it should be quoted that the deadline for Poland was June 26, 2018),
we can read that:
“fulfillment of the obligation imposed by Article 24(1) of Regulation No 2015/848 on insolvency proceedings, according to which Member States shall establish and maintain in their territory at least one register in which information on insolvency proceedings is published (“insolvency registers”). The register, in accordance with Article 92 point b of the above-mentioned Regulation, should become operational on June 26, 2018.“.
In turn, when it comes to deleting data from the register, this is covered by Article 11 of the Act which sets forth rules of the removal of data from the National Register of Debtors. As a rule, data contained in the Register may not be deleted, unless the Act provides otherwise. Data contained in the Register automatically ceases to be disclosed after 10 years from the date of final conclusion or discontinuance of the proceedings to which they concern, unless the Act provides otherwise.
The Act also stipulates that if the arrangement has been validly approved in the proceedings, the data contained in the Register automatically ceases to be disclosed after:
1) 3 years from the date on which the decision confirming the implementation of the arrangement becomes final or binding, or
2) 10 years from the date on which the decision to repeal the arrangement or to expire the arrangement by operation of law becomes final.
There is also a rule that if a creditor repayment plan has been legally established in the proceedings or liabilities have been validly written off without establishing a creditor repayment plan, the data automatically cease to be disclosed after:
1) 3 years from the date on which the decision confirming the implementation of the creditor repayment plan and the write-off of the bankrupt’s liabilities or the write-off of liabilities without establishing a creditor repayment plan becomes final or binding, or
2) 10 years from the date on which the decision to revoke the creditor repayment plan becomes final.
If, in the proceedings, the bankrupt’s liabilities were conditionally discharged without establishing a repayment plan for creditors, the data contained in the Register, automatically ceases to be disclosed after:
1) 3 years from the date of expiry of the period of 5 years from the date on which the decision on the conditional discharge of the bankrupt’s liabilities without establishing a repayment plan for creditors becomes final, or
2) 10 years from the date on which the decision to repeal the decision to conditionally discharge the bankrupt’s liabilities without establishing a repayment plan for creditors becomes final.
The draft law provides that data contained in the Register may not be deleted from it, unless the Act provides otherwise. The solutions regarding the cessation of data disclosure in the Register are aimed at promoting the desired behavior of market participants.
The general rule is that the disclosure of data in the Register will automatically cease after 10 years from the date of final completion or discontinuation of the proceedings to which they relate. However, if an arrangement has been validly approved in the proceedings, the data ceases to be disclosed in the Register automatically after 3 years from the date of the decision confirming the implementation of the arrangement becomes final or after 10 years from the date of the decision to repeal the arrangement or expire the arrangement by operation of law. This solution, on the one hand, protects trading participants during the period of execution of the arrangement by the debtor, providing them with access to information that the debtor is obliged to execute the arrangement and enables access to information that the debtor continued to execute the arrangement for three years after its implementation was confirmed, which is necessary to ensure full security of entering into relations with a debtor who was subject to an arrangement due to insolvency or threat of insolvency. However, if the debtor fails to comply with the arrangement, the data ceases to be disclosed in the Register after 10 years from the date on which the decision to revoke the arrangement becomes final or from the date on which the arrangement expires by operation of law (the arrangement expires by operation of law on the date on which the decision declaring bankruptcy or dismissing the application becomes final). A similar regulation applies to situations where a repayment plan has been legally established in the proceedings. This solution is promoted by people who have made an arrangement or implemented a repayment plan. Data of the person against whom the ban referred to in Art. 373 section 1 of the Act of February 28, 2003 – Bankruptcy Law, together with data regarding the proceedings in which the prohibition was imposed, cease to be disclosed in the Register automatically after 3 years from the day following the expiry of the prohibition period.
The storage period of data regarding bankruptcy and restructuring proceedings is dictated by the desire to ensure trading security while respecting the right to privacy and personal data protection of entities included in the Register. The regulation stipulating that after 10 years (or 3 years) data regarding bankruptcy and restructuring proceedings will cease to be disclosed introduces a fundamental change compared to the current situation, in which publication in the Court and Economic Journal means that a given fact is disclosed in a sense always and this message cannot be stopped from being revealed. The introduction of data disclosure deadlines is intended to protect the rights of entities whose data are disclosed in the Register. At the same time, it should be noted that these deadlines must be long enough, because the purpose of announcements in bankruptcy and restructuring proceedings is not only to warn trade participants about an insolvent debtor, but also – and even to a greater extent – to guarantee legal certainty, e.g. as to the validity of legal transactions, their material effects, effectiveness of fulfilling the obligation, etc. The deadlines adopted in the Act, i.e. 10 years and 3 years, are related to the limitation periods for claims applicable in the Polish legal system.
Cessation of disclosure of data in the Register will also include announcements made in the proceedings to which the data concerned will no longer be disclosed in the Register. In other words, ceasing to disclose data means that no information will be visible in the Register about proceedings for which data is no longer disclosed.
The period of disclosure in the National Court Register of data on persons against whom enforcement was discontinued due to its ineffectiveness, set at 7 years, is identical to the period of disclosure of data on payment arrears in Section IV of the National Court Register. The Act of January 26, 2018 amending the Act on the National Court Register and certain other acts (Journal of Laws of 2018, items 398 and 650) shortened the period of disclosure in the National Court Register of data on entities to which the execution was discontinued due to its ineffectiveness. Therefore, it is reasonable that the period for disclosing the same type of data in each public register should be the same.
In art. 11 section Article 11 of the draft bill regulates the processing and use of data collected in the Register, which has ceased to be disclosed, for scientific research and statistical purposes. Data that is no longer disclosed in the Register is not permanently deleted from it, but they are also no longer disclosed in the Register. After cessation of disclosure, this data may be processed and used after depriving the data of information identifying the person for scientific and statistical research. Such data does not constitute personal data. Storing data is necessary to ensure the possibility of conducting scientific and statistical analyzes of the applicable bankruptcy and restructuring law, deciding on the need for amendments in order to remove solutions for which the analyzes show ineffectiveness, and conducting comparative law research assessing the effectiveness of Polish law compared to other legal orders.
