Annual financial documents – new regulations – Important information

I. THE MANNER OF PREPARATION OF ANNUAL FINANCIAL DOCUMENTS:

In the period between 15 March – 30 September 2018

1. In the period until 30 September 2018 the annual financial documents should be prepared in a traditional manner (hard copy) with handwritten signatures of all directors (members of the management board) and an accountant.

As of 1 October 2018

1. Pursuant to the new regulations (i.e. the act of 26 January 2018 on a change of the National Court Register act) as of 1 October 2018 the annual financial documents (including financial statements, directors’ report on company’s activity and auditors’ report, if required) will have to be prepared in an electronic form only.
2. Under the new law the persons whose signatures are required on the financial statements remain unchanged (i.e. all members of the management board of a company and an accountant), however, the manner in which financial statements will have to be signed has changed, i.e. directors and accountants must sign them in with e-signature (i.e. a qualified electronic signature or a signature confirmed by the ePUAP trusted profile – which is a kind of free-of-charge electronic signature introduced by Polish government, which has, however, some limitations as compared to the qualified electronic signature). The same applies to directors’ report on company’s activity.

II. THE MANNER OF FILING ANNUAL FINANCIAL DOCUMENTS: 15 MARCH – 30 SEPTEMBER 2018

1. The new law requires that as of 15 March 2018 the annual financial documents need to be filed to registry court via the telecommunication platform only, made available in the Internet by the Polish Ministry of Justice.
2. In the interim period from 15 March 2018 until 30 September 2018 (during which the financial statements will be still prepared in writing) the filing must be done as follows:
   1. scanned copies of the annual financial documents must be signed with e-signature (i.e.with the qualified electronic signature or with the use of the ePUAP trusted profile) by at least one director whose PESEL (personal identification number) has been disclosed in the National Court Register and then
   2. submitted electronically:
      • by this director to a repository of financial documents (i.e. a special platform made available in the Internet by the Ministry of Justice) or
      • by a proxy to the National Court Register by a different platform (i.e. S24 platform).
3. In the interim period from 15 March 2018 until 30 September 2018 the annual financial documents will have to be filed to the tax office as previously.
4. Under the new regulations, a member of the board who electronically confirmed the scanned copies of the annual financial documents will also be required to make a declaration while filing to the repository of financial documents that these documents were prepared in accordance with the accounting regulations in force in Poland.

III. THE MANNER OF FILING ANNUAL FINANCIAL DOCUMENTS: AS OF 1 OCTOBER 2018

1. As of 1 October 2018 the annual financial documents (which since then will have to be prepared in an electronic form – as explained in section I above) will have to be submitted to the repository of financial documents only.
2. The access to this repository is granted only to companies’ directors – i.e. the company’s directors only will be allowed to effectively submit the annual financial documents to this repository, thus submission of these documents will have to be performed directly by a director (member of the management board). Director effectively submitting the financial documents will be required to create the repository account. TGC can assists in creating the repository account and preparation of the electronic application.
3. It is beyond doubt that annual financial documents may be submitted to the repository of financial documents by the members of the management board of the company only, and not by proxies.
4. Furthermore, this obligation can be performed only by such a director whose PESEL is registered in the National Court Register and the submission will have to be confirmed by this director with e-signature (i.e. the qualified electronic signature or the ePUAP trusted profile). No other form of submission will be possible.
5. Submission of annual financial documents to the repository of financial documents will discharge a company from obligation to submit these documents to relevant tax office and will be free of any charge.
6. Under the new regulations, a member of the board who files the annual financial documents via  telecommunication platform will be required to make a declaration while filing to the repository of financial documents that the documents submitted were prepared in accordance with the accounting regulations in force in Poland.

IV. CORRESPONDENCE ADDRESS

1. Beyond the changes indicated above, any current and new individual appointed as a member of the management board will be obliged to indicate his/her correspondence address and notify it to the registry court.
2. If the correspondence address is outside the EU, such a director will be obliged to appoint a service agent in Poland (proxy for delivery of correspondence).
3. Current members must notify the correspondence address/service agent at the first application submitted to the registry court by the company, not later than by 15 September 2019.
4. Same rules apply to members of management boards of the shareholders of the Polish companies. Also the Polish company should submit a list of members of management boards of the shareholders with their correspondence address. TGC will be happy to assist with dealing with these requirements.

V. IMPLICATIONS

1. The new law obliges all members of the management boards and accountants to have a qualified electronic signature or the ePUAP trusted profile (e-signature) – in order to sign the annual financial documents electronically.
2. Furthermore, the new law requires that at least one director (member of the management board) has a PESEL number, which has to be disclosed in the National Court Register – in order to submit the annual financial documents to the repository of financial documents.
3. Although, the EU law binding in all member states (i.e. the Regulation (EU) No 910/2014 of the European Parliament and of the Council of 23 July 2014 on electronic identification and trust services for electronic transactions in the internal market and repealing Directive 1999/93/EC) explicitly states that a qualified electronic signature issued in one member state (e.g. Spain, Germany, etc.), should be recognised as a qualified electronic signature in other member state (e.g. Poland), we were told by the representative of Polish Ministry of Justice
   that all the electronic platforms established for submission of financial documents will recognize only Polish e-signature (i.e. a qualified electronic signature issued by Polish provider or the ePUAP trusted profile). If this is the case, directors of Polish companies will have to have Polish e-signatures in order to comply with the new law.
4. In addition, we were informed by the Polish Ministry of Justice, that the electronic platforms will allow to upload files which were signed electronically with XAdES extension only.
   Other extension (such as CAdES, PAdES, ASIC, etc.) will not be accepted by these platforms and therefore the process of filing the financial documents will not be completed.
5. At least one director (member of the management board) will have to have PESEL number in order to comply with the obligations arising from the new law on preparation and signing of the annual financial documents.
6. However, it is recommended to have at least two directors whose PESEL number will be disclosed in the National Court Register, so that a potential change in the management board can be executed without prejudice to the company’s filing obligations.
7. The time-frame of proceedings for assignment of PESEL to a foreigner may take several weeks, especially taking into account a rapid growth in a number of such applications. TGC will gladly assist in the process.
8. In order to obtain a qualified electronic signature by a foreigner it will be necessary to file an application which will be signed by this foreigner and notarised and apostilled (if done abroad).
9. Such e-signature is valid for 2 years. Thus the process of applying for granting the e-signature for a director will have to be repeated on a regular basis.
10. Furthermore, the telecommunication platform established by the Ministry of Justice in order to submit financial documents is in Polish only. Therefore foreign directors may have difficulties with filling documents via this platform. TGC offers its assistance in the process.

VI. RECOMMENDATIONS

1. If the management board consists of foreign directors only and none of them have PESEL number, at least one foreign director must apply for assignment of PESEL number and, once assigned it should be registered with the registry court – TGC offers its assistance in the process;
2. All directors should apply for Polish electronic signature – TGC can assist in the process;
3. All financial documents should be entered to the telecommunication platform by a Polish speaking specialist (due to the complexity of the platform and language constraints – available in Polish only) – TGC can assist in the process;
4. Director or directors of the Polish company will need to create a personal account on the telecommunication platform (repository) (with assistance of Polish speaking specialist) – TGC can assist in the process;
5. Depending on timeframe – confirmation of the documents in the system will be done by a proxy or one of directors – TGC can assist in the process.

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