Continuing the subject of the revolution in the Polish Commercial Companies Code, we would like to point out issues related to the establishment of a board of directors in a simple joint-stock company.
The board of directors, as the company’s body, is certainly a novelty in Polish commercial law.
Although from the linguistic point of view the word “council” seems to impose collegial participation, art. 300 (73) § 2 gives the possibility to fill the body even with one person.
All directors are obliged and authorized to jointly manage the affairs of the company, unless the articles of association or the rules of the board of directors state otherwise. The rights of the director to represent the company cannot be limited with legal effect towards third parties.
Resolutions of the board of directors is required in particular to: 1) make strategic decisions for the company; 2) establish annual and long-term business plans; 3) establish the organizational structure of the company’s enterprise and shaping it basic functions related to running an enterprise.
What is specific for the regulation of a simple joint-stock company – it distinguishes two types of directors: “executive directors” performing business activities of the company, as well as “non-executive directors” exercising permanent supervision over the conduct of the company’s affairs.
In order to carry out the activities of running a company, an executive committee consisting of executive directors may be appointed.
Each non-executive director may examine all company documents, demand reports and explanations from company’s directors and employees.
In the coming weeks we will be presenting further information on the amendment, which is due to enter into force as soon as 1st of March 2020.
On June 13th, 2019 Polish parliament passed a law introducing a new type of company – a ‘simple joint-stock company’. It is supposed to be a response to the needs of the market. In particular, the new type of the company was planned as the optimal solution for start-ups.
According to our preliminary opinion, it will also be an interesting solution for foreigners starting a business in Poland.
A simple joint stock company will be the third capital company in the Polish legal system – apart from a limited liability company and a joint-stock company.
The minimum share capital of this type of company is only PLN 1,00 (!). The formalities related to its establishment have been minimized.
The provisions provide for the possibility of using the electronic model of the company’s agreement, as well as concluding it in a traditional way.
Although the new law is to come into force only on March 1st 2020, we will present some interesting possibilities provided by the regulation in the coming weeks.
Sometimes it is said that loans tend to be more durable than marriages. In the case of divorce or separation, the question arises how to settle joint financial obligations, and in particular who (and how!) should pay the loan after divorce.
Taking over a house by one spouse does not mean that only he/she will be automatically obliged to repay the indebtedness to the bank. Most often, the parties to a loan agreement are both spouses who are jointly and severally liable towards the bank. The agreement regarding the method of repayment of the loan, concluded only between the spouses, will not be effective against the bank.
One of the solutions may be taking over the entire debt by one of the former partners. However, this involves the need to obtain the bank’s consent.
From a legal point of view, it is also possible to join a contract by a family member or a new partner.
Nevertheless, it should be remembered that each of the solutions indicated is most often associated with the re-running of the loan granting procedure and the examination of creditworthiness.
According to recent press reports, the government abandoned the idea of introducing the so-called “Entrepreneur Test”, the aim of which was to limit the number of natural persons who settle according to the flat tax of 19%. New regulations could be particularly important for the IT industry and creative industries, where self-employment is often used by highly qualified specialists. Our team is patiently waiting for the situation to unfold.
However, regardless of the above mentioned regulation, self-employed persons already have (based on provisions of labour law) the right to claim establishment of an employment relationship before the court of law. As stipulated in art. 22 § 1² of the Labour Code ,,Employment contracts cannot be replaced with a civil law contract where the conditions of the performance of work (…) remain intact”.
This means that a formally self-employed person may, in the course of a lawsuit, lead to the court deciding that in the eyes of the law, he/she had possessed (or possesses) the status of an employee. Such a verdict may be beneficial – in particular regarding the possibility of determining excess payment of social security contributions or obtaining remuneration for overtime work.
On 4th April 2019 Parliament approved its position on revised rules for posting of drivers, drivers’ rest times and better enforcement of cabotage rules.
Parliament wants to prevent “systematic cabotage”, by establishing a “cooling-off period” for vehicles to be spent in the home-country (60 hours) before heading for another cabotage.
Some of new regulations are focused on drivers and working time. Companies will have to organise their timetables so that drivers are able to return home at regular intervals (at least every 4 weeks). The mandatory rest period at the end of the week should not be taken in the truck cab.
Planned rules shall apply to cabotage, and cross-border transport operations, excluding transit, bilateral operations and bilateral operations with one extra loading or unloading in each direction (or zero on the way out and two on return).
It should be noted that the results of voting in the European Parliament can clearly indicate that the opposition has been broken.
Planned changes can significantly affect the organization of work for Polish hauliers, but also Bulgarian, Romanian and hauliers from the Baltic countries.
Our team will closely follow the legislative work on this regulation.
[Source: European Parliment (press room) http://www.europarl.europa.eu/portal/en]
On March 1st 2019, amendments to the Code of Commercial Companies [PL] have entered into force. Amendments are particularly important for joint-stock companies and limited liability companies.
According to the new regulation, in a situation where, as a result of the resignation of the member of the management board of a capital company, none of the seats on the board would be filled, the board member resigns to shareholders by convening the shareholders’ meeting. The resignation shall be effective on the day following the day on which the shareholders’ meeting was called.
This amendment to art. 202 § 6 of the Commercial Companies Code, ended many years of dispute in doctrine and judicature.
Before the amendments entered into force, similar issues were settled in accordance with the resolution of seven judges of the Supreme Court of March 31st, 2016 (reference number III CZP 89/15). As indicated in the resolution, a member of the board should have made a statement of resignation to another member of the management board or a proxy.
The problem arose in a situation, when the resigning board member was the only management board member, and the company did not appoint a proxy.
It was then assumed that resignation should be submitted to the supervisory board, and in the absence of such – to a proxy appointed by resolution of shareholders. If the proxy was not appointed, a member of the management board should have initiated the appointment of such.
It is worth adding that a member of the management board of a capital company may resign at any time.