Amended Act on the National Court Register

Key changes:

From 1 October 2018, financial statements must be drawn up in electronic version and be signed with electronic signature or ePUAP trusted profile by all board members.

• Each board member should have electronic signature.
• At least one board member should have PESEL number entered in the National Court Register.
• From 1 April 2019, financial statements may be filed to the repository also by attorneys (legal advisors and advocates).
• Entities registered with the business register are no longer obliged to submit financial statements to tax offices, but tax offices may force business entities by way of mandatory injunction to file financial statements with the National Court Register under pain of imposing a fine.

Our recommendations:

• At least one board member should obtain PESEL number and enter it to the register.
• Obtaining qualified electronic signature – Polish for filing documents to the repository of financial documents or issued in another EU member state to submit documents through S24 portal.
• Appointing attorneys of record for filing financial documents to the repository of financial documents or through S24 portal.

Procedure for filing financial statements

On 15 March 2018, the amended Act on National Court Register came into force and imposed on businesses new requirements for, among other things, the filing of financial statements. Financial documents (annual financial statements or declarations of no obligation to draw up and file annual financial statements) should now be filed only through IT data transmission system – to the repository of financial documents – in the prescribed format and structure.

The format depends on when the documents were prepared:

• Documents prepared before 30 September 2018 may be filed in electronic version as scans of hard copy documents. To this end, printed hard copy documents should be signed in accordance with the rules applicable to date, and scanned.
• On 30 September 2018, the transitional period ended, so from this date on, financial statements may be drawn up only in electronic version, in xml format, what results in the fact that financial statements prepared after that date must be signed with electronic signatures of all board members. The amended Accountancy Act introduced also the obligation to draw up reports on the company’s activities and reports on the activities of capital groups in electronic format and affix on them a qualified electronic signature. [Requirements as to the format of other documents did not change, so resolutions approving the financial statements will still be filed as signed and scanned documents].

Pursuant to the revised act, financial documents prepared in electronic format must be signed with a qualified electronic signature in XAdES format or ePUAP trusted format.

It should be noted, however, that as long as the signing of financial statements with ePUAP trusted profile should not pose any major problems, the same cannot be said about the management report on the company’s activities. Pursuant to the revised Accountancy Act, from 1 October 2018, the management report, similarly to financial statements, must be prepared in electronic version, though, no officially required format was prescribed for this document.

Most probably, one will need to electronically sign a PDF document. However, this option is not supported by ePUAP trusted profile what brings us to the conclusion that it is advisable to create electronic signatures for board members – this will reduce the risk of failing to post the documents by the prescribed time limit. According to the information obtained from the support desk of S24 portal, for the near future, it will still be possible to file this document in the form of a scanned and signed document bearing an electronic signature.

Documents may also be signed with a qualified electronic signature issued in another EU member state, as long as it supports the XAdES format. It is possible because all EU member states are bound by eIDAS Regulation which provides that all qualified certificates issued in the EU are recognised as equivalent. It should be noted, though, that documents signed by e-signature issued in another member state may only be filed through the paid S24 system. Due to technical reasons, it is not possible to file them free of charge to the repository of financial documents.

Filing financial documents

The Act provides for two ways of filling financial documents:

• through S24 system – scanned documents bearing electronic signature of at least one person authorised to represent the company, whose PESEL number is entered in the register,
• to the repository of financial documents.

Both platforms operate only in the Polish language.  

The Act provides that financial documents should be filed by at least one board member whose PESEL number is entered in the register, but may also be filed by commercial proxy, liquidator or – in debt restructuring proceedings – receiver.

Applications for acceptance of documents in the repository of financial documents may either be signed by electronic signature or e-PUAP trusted profile.

According to the amendment to the National Court Register Act in force from 1 April 2019, the group of persons authorised to post documents to the repository will encompass also professional attorneys – advocates and legal advisors whose personal data will be provided by the Polish Bar Council and the National Council of Legal Advisors to courts and the Minister of Justice.

This amendment does not relieve the management board from the obligation to sign the financial statements and report on the company’s activities with electronic signatures, but makes life significantly easier for those boards members who use attorney’s assistance and will no longer have to have an account in the S24 system and personally sign and send applications to place documents in the repository.

It should be stressed that the changes have been in force for a short period of time only or will enter into force soon. That is why IT data transmission system is still somewhat unstable though continuously improved. Therefore, we cannot be absolutely sure that the procedures and requirements as to the signatures will not change.

On top of this, the amendment introduced also a number of other noteworthy changes:

• Each present and newly appointed board member will have to provide their address for service to the registry court.
• The same obligation applies to the body appointing the management board, that is in a limited liability company – shareholders. If the shareholder is a company, address for service of its boards members should be provided
• If the address for service of such board members is located outside the territory of the European Union, a service agent should be appointed in Poland
• Declaration on service addresses should be made with the first application being filed with the registry. Board member who have not yet complied with this obligation should do it so by 15 September 2019
• Courts are authorized to force the filing of obligatory documents by way of mandatory injunction to submit them
• In the absence of the governing body (management board or supervisory board), courts will be able to summons the persons obliged to appoint the governing body (shareholders) to file these documents under pain of imposing a fine.
• The Central Repository of Electronic Excerpts of Notarial Deeds was created to which notaries will file notarial deeds forming the basis for entry in the register. If excerpt copy of the notarial deed has been placed in the repository, the applicant will only provide in the application the number of this deed in the repository. Provisions on the repository of notarial deeds will not come into force before 1 March 2020.
• As a result of the amendment, the Polish National Court Register now forms the part of the European Business Registers Interconnection System (BRIS). Through IT data transmission system one can search for information on companies such as:
  • information on striking the company off the register;
  • corporate documents such as funding deeds/articles of association/statutes, financial statements, resolutions on the change of share capital or appointment of members of governing bodies;
  • copies of documents filed in hard copy or electronically.
• From 1 October 2018, business entities registered with the National Court Register do not have to submit financial statements to the tax office.
• The revised tax ordinance act empowered tax offices to force business entities by way of mandatory injunction to file financial statements with the National Court Register under pain of imposing a fine.

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