26.04.2022 Company law

Amendments to the Commercial Companies Code signed by the President

On 4 April 2022, the President signed the act amending the Commercial Companies Code. The amendment introduces regulations governing corporate groups and principles of management and supervision in commercial companies.

The amended act introduces a number of changes to the Polish company law. In practice, they are to encourage traders to conduct business activity in the form of a company and supplement the adopted regulations from other acts such as the National Court Register Act and the Bankruptcy Law.

Amendments to the Commercial Companies Code – governing corporate groups

The amendment to the Act on the Commercial Companies Code introduces a definition of a corporate group to Polish company law and regulates the principles of its operation. The new act defines a corporate group as a parent company and its subsidiary or subsidiaries, guided by a common economic strategy to pursue a common interest of a corporate group, justifying exercise by the parent company of uniform management over its subsidiary or subsidiaries.

Provisions governing the operation of a corporate group include the following solutions:

  • Resolution on participation in a corporate group indicating the parent company must be adopted by the subsidiary’s general meeting of shareholders by a majority of three-fourths of votes;
  • Participation in a corporate group to be entered in the register by the parent company and the subsidiary;
  • The parent company may issue a binding instruction in writing or electronically, under pain of nullity, to a subsidiary participating in a corporate group, regarding the conduct of the company’s affairs;
  • Binding instruction requires a resolution of the subsidiary and indicates:
    • the expected conduct of the subsidiary;
    • the interest of the group to be served by the instruction;
    • the expected benefits or damage to the subsidiary resulting from the performance of the binding instruction, if any;
    • the time and manner of redressing damage suffered by the subsidiary as a result of performing the binding instruction;
  • The parent company may inspect the books and documents of the subsidiary participating in a corporate group and request information from it at any time;
  • Permanent supervision of the supervisory board of the parent company over the implementation of the interests of a corporate group by the subsidiary participating in the corporate group;
  • Introducing the possibility of compulsory buy-out of shares of a minority shareholder or shareholders representing no more than 10% of the share capital of a subsidiary;
  • Termination of participation in a corporate group by adopting a resolution by the subsidiary’s general meeting shareholders with a majority of three-fourths of votes or by the parent company submitting a declaration of termination of such participation to a subsidiary.

Moreover, what is important, the provisions of the amended act on a subsidiary participating in a corporate group will not apply to:

  • A public company;
  • A company in liquidation that has commenced distribution of its assets or a company in bankruptcy;
  • A company being an entity subject to supervision over the financial market within the meaning of Art. 1 paragraph 2 of the Act on Financial Market Supervision of 21 July 2006;

Amendments to the Commercial Companies Code – the role of supervisory board

The amended regulations increase supervision over the company. Supervision is exercised by the supervisory board, and the new solution consists in introducing the obligation to provide the board with any information, documents, reports or explanations not later than within two weeks from the date of receipt of the board’s request to the governing body or the obligated person.

In addition, the amended act contains a provision that a member of the management board, supervisory board or audit committee may not disclose company secrets even after the expiry of the mandate, and should perform their duties with due diligence and acting loyally towards the company.

The supervisory board may also establish an ad hoc or standing committee consisting of members of the supervisory board. This committee is to perform specific supervisory activities, it may also adopt resolutions on the examination, at the company’s expense, of a specific matter concerning the company’s operations or its assets by a selected adviser to the supervisory board.

See also: Theft of companies – KRS newsletter to increase the protection of businesses

Competencies of the supervisory board with regard to financial statements

Pursuant to the new regulations, the supervisory board is required to inform, at least one week in advance, a key certified auditor auditing the company’s financial statements about when the board meeting concerning the report on the company’s activities is to be held.

If the company’s financial statements are subject to a statutory audit, the meeting of the supervisory board should be attended by a key certified auditor or another representative of the audit firm who will provide the supervisory board with an audit report, including an assessment of the basis for the adopted statement relating to the company’s ability to continue as a going concern, and answer questions from members of the board.

The act will enter into force 6 months after its promulgation.

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