AMENDMENT OF THE POLISH COMPANIES CODE – IMPORTANT CHANGES FOR CORPORATIONS OPERATING IN POLAND
On October 13, 2022, there will enter into force changes to the Polish Commercial Companies Code, which will have influence on corporations operating in Poland, particularly from the perspective of holding law, regulations increasing the powers of supervisory boards and imposing additional obligations on the management boards of capital companies. The changes are introduced by the latest amendment to the Polish Code of Commercial Companies and Partnerships of February 9, 2022, published on April 12 in the Journal of Laws (Journal of Laws, item 807).
The changes contained in the amendment are important both for the owners of entities (shareholders), as well as for members of supervisory boards and members of management boards.
The amendment of the Polish Commercial Companies Code introduces the concept of a group of companies, according to which the group of companies is a parent company and a company or subsidiaries that are capital companies, following the resolution on participation in a group of companies by a common strategy to pursue a common interest (interest of a group of companies), justifying the exercise of by the parent company of uniform management of the subsidiary or subsidiaries. The consent to participate in the group of companies with the indication of the parent company will be expressed by the shareholders’ meeting or the general meeting of the subsidiary by a three-fourths majority of votes. Participation in a group of companies will be disclosed in the national court register by the parent company and the subsidiary.
The parent company will be entitled to issue binding instructions (in writing or electronically) to the subsidiary, if it is justified in the interest of the group of companies and if specific provisions do not provide otherwise. The execution of a binding instruction will require a prior resolution of the company’s management board, and a resolution on its non-execution may be adopted only in specific cases (e.g. when it may result in the insolvency of the subsidiary).
Importantly, a member of the management board, supervisory board, audit committee and liquidator of the subsidiary company will not be liable for damage caused by the execution of a binding instruction. The amendment also introduces regulations regarding the possibility of purchasing shares or stocks of minority shareholders. Willingness to sell-out will be able to be expressed by shareholders representing less than 10% of the share capital.
The amended Companies Code also specifies the method of calculating the term of office of the company’s bodies – the term of office is calculated in full financial years, unless the articles of association provide otherwise. In addition, the amendment strengthens the role of the supervisory board, giving it, inter alia, the right to request that the supervisory board be forwarded immediately, not later than within two weeks from the date of submitting the request to the authority or the obligated person, documents, information, reports, unless the request specifies a longer period. The management board may not restrict the members of the supervisory board from accessing this information.
The Supervisory Board will be obliged to notify the statutory auditor of the date of the meeting, the subject of which will be the company’s reports on the company’s operations, it will also be able to appoint a supervisory board committee consisting of supervisory board members to perform specific supervisory activities.
The management board not only in a joint-stock company or a simple joint-stock company, but also in a limited liability company will be required to officially record the progress of each of its meetings (in the form of minutes). Some limited liability companies (typically with extended shareholding structure) already do it, but the vast majority of them record only when they have to (in some situations, when they are mandated by regulations). In practice, the amended regulations will force changes in the entire organization, they will also affect the course of the purchasing process, the process of concluding all contracts, investments, finances.
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