1. Which law is applicable to the legal capacity and right of representation of a legal entity?
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In accordance with Article 17 of the Private International Law Act of 4 February 2011, a legal person shall be subject to the law of a country in which it has its head office. If, however, the law of that country provides for the jurisdiction of the law of a country on the basis of which the legal person was formed, the law of that country shall apply. In practice, as regards legal transactions in Poland, a differentiation between an office specified in the company’s articles of incorporation (e.g. in the articles of association or statutes) and an office disclosed in the relevant register is permitted. This follows from the principle under Polish law, according to which a legal person acquires legal personality upon its registration in a relevant register. The jurisprudence also allows for invoking the so called actual office of a legal person.
It may happen that a legal act performed by a legal person with respect to the business it manages is invalid on the grounds of the provisions of the law applicable to the assessment of the capacity to perform legal acts and the legal capacity of that legal person. To prevent this, pursuant to Article 18(1) of the Polish Private International Law Act, if a legal person performs a legal act with respect to the business it manages, its capacity to perform legal acts determined in accordance with the law of the country in which the business is managed shall be sufficient.
However, pursuant to Article 18(2) of the Polish Private International Law Act, a legal person may raise against the other party a limitation on its capacity or representation arising from the law referred to in Article 17(1) and (2) of the Polish Private International Law Act, if such limitation is not provided for by the law of the country where a legal act is performed, if the other party has knowledge or not of such limitation due to negligence on its part. This provision does not apply to immovable property located in a country other than the country in which the act was performed.
A substantial number of legal persons in Poland include the following companies under the Polish Partnerships and Companies Code: a private limited company, a public limited company and a simple public limited company. These companies are governed by the Polish Partnerships and Companies Code of 15 September 2000.
Legal personality is also granted to foundations (the Act on Foundations of 6 April 1984) and associations (the Association Law Act of 10 April 1989)
Under Polish law, legal personality is very often granted to different organisational units, both public and private.
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It may happen that a legal act performed by a legal person with respect to the business it manages is invalid on the grounds of the provisions of the law applicable to the assessment of the capacity to perform legal acts and the legal capacity of that legal person. To prevent this, pursuant to Article 18(1) of the Polish Private International Law Act, if a legal person performs a legal act with respect to the business it manages, its capacity to perform legal acts determined in accordance with the law of the country in which the business is managed shall be sufficient.
However, pursuant to Article 18(2) of the Polish Private International Law Act, a legal person may raise against the other party a limitation on its capacity or representation arising from the law referred to in Article 17(1) and (2) of the Polish Private International Law Act, if such limitation is not provided for by the law of the country where a legal act is performed, if the other party has knowledge or not of such limitation due to negligence on its part. This provision does not apply to immovable property located in a country other than the country in which the act was performed.
A substantial number of legal persons in Poland include the following companies under the Polish Partnerships and Companies Code: a private limited company, a public limited company and a simple public limited company. These companies are governed by the Polish Partnerships and Companies Code of 15 September 2000.
Legal personality is also granted to foundations (the Act on Foundations of 6 April 1984) and associations (the Association Law Act of 10 April 1989)
Under Polish law, legal personality is very often granted to different organisational units, both public and private.
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2. What criteria/rules are used to determine the applicable law (for example the law of incorporation or the actual seat)?
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In practice, as regards legal transactions in Poland, a differentiation between an office specified in the act of a company’s incorporation (e.g. in the articles of association or statutes) and an office disclosed in the relevant register is permitted. This follows from the principle of Polish law, according to which a legal person acquires legal personality upon its registration in a relevant register. Case law also allows for invoking the so-called actual seat of a legal person. When determining the actual seat, the place where activity is carried out and where bodies of a legal person take their decisions is taken into account.
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3. Which international conventions have to be respected?
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The list of international conventions, bilateral and multilateral agreements and agreements concluded with the EU that bind Poland can be consulted in the Internet Treaty Base available on the website of the Ministry of International Affairs at: https://traktaty.msz.gov.pl/english-version . When conducting the search, in the browser, you should select “Law matters” and then “Commercial Legal Aid”.
In accordance with Article 67 of the Polish Private International Law Act, if no applicable law is provided for in this Act or specific provisions or international agreements in force and ratified by the Republic of Poland, or in EU law, the relationship under this Law shall be governed by the law of the country with which that relationship is most closely connected.
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In accordance with Article 67 of the Polish Private International Law Act, if no applicable law is provided for in this Act or specific provisions or international agreements in force and ratified by the Republic of Poland, or in EU law, the relationship under this Law shall be governed by the law of the country with which that relationship is most closely connected.
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4. Are there international conventions with regard to certain countries?
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The list of international conventions, bilateral and multilateral agreements and of agreements concluded with the EU that bind Poland can be consulted in the Internet Treaty Base available on the website of the Ministry of International Affairs at: https://traktaty.msz.gov.pl/english-version . When conducting the search, in the browser, you should select “Law matters” and then the field which interests you. Consequently, you should be able to consult all conventions/agreements concluded by the Republic of Poland with other countries.
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5. Are all companies registered in a public register? What are the effects of registration? (please add a link to the register, if possible)
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The register is available at: https://ekrs.ms.gov.pl
Pursuant to Article 1 of the Act of 20 August 1997 on the National Court Register, the Register shall be composed of:
1) register of entrepreneurs;
2) register of associations, register of the remaining NGOs and professional associations, register of foundations, as well as of self-governing public healthcare institutions;
3) register of insolvent debtors.
The third register is a part of the system of interconnection of registers referred to in Article 22 of the Directive (EU) 2017/1132 of 14 June 2018 relating to certain aspects of company law (Official Journal of the EU L 169 of 13 June 2017, pages: 46-127), hereinafter referred to as “the register interconnection system”.
In accordance with the Polish Partnerships and Companies Code, partnerships and companies shall be formed upon registration in the register, which means that the registration also coincides with them being granted legal personality. The registration requirement also applies to foundations and associations.
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Pursuant to Article 1 of the Act of 20 August 1997 on the National Court Register, the Register shall be composed of:
1) register of entrepreneurs;
2) register of associations, register of the remaining NGOs and professional associations, register of foundations, as well as of self-governing public healthcare institutions;
3) register of insolvent debtors.
The third register is a part of the system of interconnection of registers referred to in Article 22 of the Directive (EU) 2017/1132 of 14 June 2018 relating to certain aspects of company law (Official Journal of the EU L 169 of 13 June 2017, pages: 46-127), hereinafter referred to as “the register interconnection system”.
In accordance with the Polish Partnerships and Companies Code, partnerships and companies shall be formed upon registration in the register, which means that the registration also coincides with them being granted legal personality. The registration requirement also applies to foundations and associations.
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6. Does a foreign company have to be registered in your public company register?
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As a rule, foreign companies are not legally required to be registered in the register of entrepreneurs of the National Court Register.
However, foreign enterprises, including companies, may set up their own branches in the Republic of Poland. These branches must be registered in the register of branches of foreign entrepreneurs kept by the Ministry of Technology and Entrepreneurship. A foreign entrepreneur reports the branch to the register by means of an application (with annexes) to register it in the branch register. The scope of a foreign entrepreneur’s activity may solely extend to its advertising and promoting. A foreign entrepreneur who may set up a branch means a foreigner carrying out his/her activity abroad or a Polish national carrying out business abroad. Branches may also be established by foreigners who, by means of documents issued by a competent authority of a country in which their registered office is located, are responsible for promoting the economy of that country. The scope of activity carried out by such a branch may solely extend to promoting and advertising the country’s economy.
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However, foreign enterprises, including companies, may set up their own branches in the Republic of Poland. These branches must be registered in the register of branches of foreign entrepreneurs kept by the Ministry of Technology and Entrepreneurship. A foreign entrepreneur reports the branch to the register by means of an application (with annexes) to register it in the branch register. The scope of a foreign entrepreneur’s activity may solely extend to its advertising and promoting. A foreign entrepreneur who may set up a branch means a foreigner carrying out his/her activity abroad or a Polish national carrying out business abroad. Branches may also be established by foreigners who, by means of documents issued by a competent authority of a country in which their registered office is located, are responsible for promoting the economy of that country. The scope of activity carried out by such a branch may solely extend to promoting and advertising the country’s economy.
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7. Who has the legal right of representation of a legal entity?
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An organisational unit with legal personality may hold and independently acquire rights and obligations, has sole liability for its debts, and statements on its behalf are made by persons carrying out functions in its bodies and who have been authorised to represent it.
In accordance with Article 38 of the Polish Civil Code, a legal person acts through its bodies and in a manner prescribed by the law and its articles of association based on that law. The governing bodies are entrusted with the representation of legal persons in civil law transactions and they may perform legal acts and undertake actions in court proceedings. If the management board has more than one member, the rules for representation shall be stipulated in the articles of association or in the statutes. In specific cases, the management body must cooperate with bodies of other entities within, for example, a cooperative, or administrative regions and provinces. Representation rules of partnerships and companies are provided for in the Polish Partnerships and Companies Code, whereas the same rules concerning civil law partnerships are determined in the Polish Civil Code. For example as regards the representation of partnerships and companies, and more specifically of a private limited company, such company is basically represented by its management board. Where such management board has more than one member, the company shall be represented in a manner determined in its articles of association, or, in the absence of such provisions therein, the statements of intent may be made by two members of the management board or one member of the management board acting jointly with a holder of the commercial proxy. For public limited companies, the manner of representation shall be determined in the articles of association, or in the absence of such provisions therein, the requirement of joint representation shall apply.
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In accordance with Article 38 of the Polish Civil Code, a legal person acts through its bodies and in a manner prescribed by the law and its articles of association based on that law. The governing bodies are entrusted with the representation of legal persons in civil law transactions and they may perform legal acts and undertake actions in court proceedings. If the management board has more than one member, the rules for representation shall be stipulated in the articles of association or in the statutes. In specific cases, the management body must cooperate with bodies of other entities within, for example, a cooperative, or administrative regions and provinces. Representation rules of partnerships and companies are provided for in the Polish Partnerships and Companies Code, whereas the same rules concerning civil law partnerships are determined in the Polish Civil Code. For example as regards the representation of partnerships and companies, and more specifically of a private limited company, such company is basically represented by its management board. Where such management board has more than one member, the company shall be represented in a manner determined in its articles of association, or, in the absence of such provisions therein, the statements of intent may be made by two members of the management board or one member of the management board acting jointly with a holder of the commercial proxy. For public limited companies, the manner of representation shall be determined in the articles of association, or in the absence of such provisions therein, the requirement of joint representation shall apply.
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8. Must the right of representation be registered (if yes, please add a link to the register, if possible)?
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As a rule, the registration in a relevant register of a person appointed to represent a legal entity is not required for such a person to be able to exercise his/her powers. However, should a person be improperly registered in the register of entrepreneurs of the National Court Register as the person authorised to act on behalf of a legal person concerned, a counterparty of that legal person is protected as acting in good faith. On the other hand, an entity that has a duty to file for registration in the register may not invoke data that have not been entered into the register or have been deleted from it against third parties acting in good faith, (Article 14 of the Act on the National Court Register). Furthermore, an entity entered in the register shall be liable for damage suffered as a result of the filing of false data with the register if such data has been registered following its request or as a result of the failure to file data subject to registration within the period provided for in the law, unless the damage happened due to force majeure or at the sole fault of the complainant or third party for which the entity is not liable. In the case of commercial law partnerships disclosed in the register, the liability referred to in (1) shall be joint and several, i.e. both of the partnership and persons who are liable for the company’s obligations with their entire assets (Article 18 of the Act on the National Court Register).
Pursuant to Article 39 of the Act on the National Court Register of 20 August 1997:
Section 2 of the register of entrepreneurs shall include the following data:
1) the particulars of the body authorised to represent the entity and of persons forming it, including the manner of representation. For partnerships lacking such a body, indication of the partners authorised to represent the partnership, including the manner of representation. For branches of foreign entrepreneurs, main branches of foreign insurance and reinsurance companies, this data shall be disclosed in the case of foreign entrepreneurs, foreign insurance and reinsurance companies, taking into account the different structure of their bodies;
1a) particulars of the managers of an European economic interest grouping and of natural persons appointed as representatives of the managers who are legal persons;
2) the particulars of supervisory bodies including their composition; for branches of foreign entrepreneurs and/or main branches of the foreign insurance and reinsurance companies, such data shall be revealed in the case of foreign entrepreneurs, foreign insurance and reinsurance companies, taking into account the different structure of their bodies;
3) data concerning the holders of commercial proxies and the type of commercial proxy,
3a) data concerning agents acting on behalf of cooperatives, state-owned enterprises or research and development institutions and the scope of their authorisation;
4) the particulars of a person authorised by a foreign entrepreneur to represent him/her in the branch; of a director and deputy director of the main branch of a foreign insurance or reinsurance company as well as of a person authorised to represent the foreign insurance or reinsurance companies as regards the activity carried out by its main branch;
5) note concerning the suspension of a member of a body provided that a specific provision provides for the possibility of such suspension;
6) in the case of the choice of a one-tier system by the European company (SE):
a) the functions of an administrative organ and members thereof,
b) the particulars of managing directors who are not members of the administrative organ authorised to represent the SE as well as of the manner and scope of the representation;
7) the particulars of the managing directors of the European cooperative; for European cooperatives with one-tier system: particulars of the administrative organ and members forming it.
Website available at: https://ekrs.ms.gov.pl/web/wyszukiwarka-krs/strona-glowna/
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Pursuant to Article 39 of the Act on the National Court Register of 20 August 1997:
Section 2 of the register of entrepreneurs shall include the following data:
1) the particulars of the body authorised to represent the entity and of persons forming it, including the manner of representation. For partnerships lacking such a body, indication of the partners authorised to represent the partnership, including the manner of representation. For branches of foreign entrepreneurs, main branches of foreign insurance and reinsurance companies, this data shall be disclosed in the case of foreign entrepreneurs, foreign insurance and reinsurance companies, taking into account the different structure of their bodies;
1a) particulars of the managers of an European economic interest grouping and of natural persons appointed as representatives of the managers who are legal persons;
2) the particulars of supervisory bodies including their composition; for branches of foreign entrepreneurs and/or main branches of the foreign insurance and reinsurance companies, such data shall be revealed in the case of foreign entrepreneurs, foreign insurance and reinsurance companies, taking into account the different structure of their bodies;
3) data concerning the holders of commercial proxies and the type of commercial proxy,
3a) data concerning agents acting on behalf of cooperatives, state-owned enterprises or research and development institutions and the scope of their authorisation;
4) the particulars of a person authorised by a foreign entrepreneur to represent him/her in the branch; of a director and deputy director of the main branch of a foreign insurance or reinsurance company as well as of a person authorised to represent the foreign insurance or reinsurance companies as regards the activity carried out by its main branch;
5) note concerning the suspension of a member of a body provided that a specific provision provides for the possibility of such suspension;
6) in the case of the choice of a one-tier system by the European company (SE):
a) the functions of an administrative organ and members thereof,
b) the particulars of managing directors who are not members of the administrative organ authorised to represent the SE as well as of the manner and scope of the representation;
7) the particulars of the managing directors of the European cooperative; for European cooperatives with one-tier system: particulars of the administrative organ and members forming it.
Website available at: https://ekrs.ms.gov.pl/web/wyszukiwarka-krs/strona-glowna/
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9. If the right of representation must be registered, what legal effect does the registration have with respect to third parties?
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Registration in the National Court Register has a constitutive legal effect which is expressly derived from a provision of the law. A constitutive entry means that an act in law performed shall be legally effective as at the date of registration in the register of entrepreneurs of the National Court Register. Examples of such provisions are: Article 12 of the Polish Partnerships and Companies Code, according to which: “Upon registration in the register, the private liability company in organisation or public limited company in organisation shall become a private limited company or a public limited company respectively and shall acquire legal personality”, Article 262 (4) of the said Code: “The increase in share capital takes effect upon the registration in the register.”, Article 272 of the said Code: “Dissolution of a company shall take place after liquidation and upon the deletion of the company from the register”, Article 255 (1) of the said Code: An amendment to the articles of association shall require a shareholders’ resolution and registration in the register.”; Article 255 (2) of the said Code: A reduction in the share capital under the procedure specified in Article 199 (5) shall require a resolution of the management board and registration in the register.”
In some cases, the constitutive legal effect of registration in the National Court Register follows indirectly from the law. For example, a change of the business name or the company’s registered office is not expressly referred to as having a constitutive effect upon registration, however, such a change requires an amendment to the articles of association (Article 255 of the Polish Partnerships and Companies Code), and the amendment to the articles of association of a private limited company becomes legally effective upon its registration in the register.
Entries having declaratory legal effect mean entries by means of which factual circumstances are revealed in the registries (e.g. the passing of a resolution). If a specific provision of the law does not expressly provide that a legal act in question shall be legally effective upon its registration in the National Court Register, the entries concerning those acts shall have declaratory effect. For example in the case of changes in the composition of the management board of a private limited company, a new member thereof shall be appointed by decision of the competent body of the company (shareholders’ meeting or supervisory board) (Article 201 (2) of the Polish Partnerships and Companies Code). Practical implications of declaratory entries relating to the changes in the composition of a private limited company are that the application for registration of such changes in the register shall be filed by new members instead of old ones (where the composition of the entire management board has changed). The same applies to the appointment of a holder of the commercial proxy, change in a postal address of a member of the management board, transferring or pledging of a share. Each change shall be reported within 7 days of its occurrence. Whether an entry is effective upon performing an act in law in question or upon it being made by a registry court in the National Court Register, pursuant to provisions of the Act on the National Court Register, a registration application shall be filed within 7 days of the occurrence of an event giving rise to such entry, unless a specific provision provides otherwise (Article 22 of the Act on the National Court Register).
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In some cases, the constitutive legal effect of registration in the National Court Register follows indirectly from the law. For example, a change of the business name or the company’s registered office is not expressly referred to as having a constitutive effect upon registration, however, such a change requires an amendment to the articles of association (Article 255 of the Polish Partnerships and Companies Code), and the amendment to the articles of association of a private limited company becomes legally effective upon its registration in the register.
Entries having declaratory legal effect mean entries by means of which factual circumstances are revealed in the registries (e.g. the passing of a resolution). If a specific provision of the law does not expressly provide that a legal act in question shall be legally effective upon its registration in the National Court Register, the entries concerning those acts shall have declaratory effect. For example in the case of changes in the composition of the management board of a private limited company, a new member thereof shall be appointed by decision of the competent body of the company (shareholders’ meeting or supervisory board) (Article 201 (2) of the Polish Partnerships and Companies Code). Practical implications of declaratory entries relating to the changes in the composition of a private limited company are that the application for registration of such changes in the register shall be filed by new members instead of old ones (where the composition of the entire management board has changed). The same applies to the appointment of a holder of the commercial proxy, change in a postal address of a member of the management board, transferring or pledging of a share. Each change shall be reported within 7 days of its occurrence. Whether an entry is effective upon performing an act in law in question or upon it being made by a registry court in the National Court Register, pursuant to provisions of the Act on the National Court Register, a registration application shall be filed within 7 days of the occurrence of an event giving rise to such entry, unless a specific provision provides otherwise (Article 22 of the Act on the National Court Register).
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10. May the rights of the legal representative be restricted? If yes, please explain how (e.g. by laws or the articles of association)?
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Restrictions concerning representation rules for commercial law partnerships and companies are provided for under Polish Partnerships and Companies Code. In addition to that, representation rules may be defined differently in the articles of association/statutes of a company, which may also deviate from the provisions of the said code in this respect. The rules for representation of a civil law partnership are provided for in the Polish Civil Code.
Civil law partnership
The power to represent a civil law partnership follows from an authorisation to manage the partnership’s affairs by a partner or by an agent.
Each partner may represent the partnership within limits corresponding to those of his/her powers to manage the partnership’s affairs. Therefore, each partner may represent the partnership alone in the case of actions falling within the scope of the ordinary administration or urgent actions the non-performance of which could trigger irreparable losses to the partnership. For actions other than an ordinary action or for ordinary actions to which one of the partners has objected, a partners’ resolution shall be passed before representation actions are taken.
Registered partnership
In registered partnerships, each partner may represent it. As a rule, registered partnerships are represented by a single partner, however, the partnership agreement may provide for a joint representation with another partner or a holder of the commercial proxy. In addition, the registered partnership may be represented by holders of a commercial proxy, attorneys, liquidators and bankruptcy receivers.
The scope of the partners’ representation shall extend to all actions in court proceedings as well as to out-of-court dealings.
The Polish Partnerships and Companies Code provides for the following rules for representation of companies:
Pursuant to Article 205 (1) (private limited company), Article 373 (1) (public limited company) and Article 30066 and Article 30078 of the Polish Partnerships and Companies Code, if the articles of association (statutes) do not contain any provisions concerning representation, statements on behalf of the company shall be made by two members of the management board (joint representation) or by one member acting jointly with a holder of the commercial proxy (mixed representation). Therefore, the provisions of the Polish Partnerships and Companies Code concerning the representation of companies shall be applied only where the articles of association (statutes) do not contain different provisions in this respect and where the management board comprises several members. If the management board has only one member, the company may always be represented by this member acting independently (representation to act alone). It is not permitted to include, in the articles of association (statutes), a provision according to which the company may be solely represented by the single member of the management board acting jointly with a holder of the commercial proxy, as this solution would prevent the management board from acting independently, which would be contrary to the nature of companies.
Statements made in the case of joint representation do not have to be made simultaneously. The period of time between the two or more joint statements of intent are made is also irrelevant (e.g. judgement of the Supreme Court of 26 August 2009, I CSK 32/09). To fulfil the requirements of joint representation, it is necessary for the members of the management board to act jointly, which, in the opinion of the Supreme Court, should arise from the content of their statements and from the circumstances in which they are made (judgement of the Supreme Court of 26 November 2006, II CSK 233/06).
Article 228 of the Polish Partnerships and Companies Code (see also Article 229 and 230 thereof) in respect of a private limited company, Articles 393 and 394 of the said Code in respect of a public limited company and Article 30081 of the said Code in respect of a simple public limited company, provide for actions which require a resolution of shareholders of a limited liability company, with these actions being performed by persons authorised to represent the company and being exhaustively specified by the law. Restrictions on representations for public private companies are set out in Article 357 of the Polish Partnerships and Companies Code, which provides for internal limitations in the management of the company’s affairs. These limitations are primarily based on the internal company structure which are effective solely towards the company.
Some limitations may be imposed on members of the management board by means of resolutions of the general shareholders’ meeting only in matters in respect of which the members’ rights to take decisions are limited by virtue of the law or articles of association/statutes. As a rule, neither the general shareholders’ meeting nor the supervisory board may issue binding instructions relating to the management of the company’s affairs. For example, the provisions of the Polish Partnerships and Companies Code concerning the private limited company do not include a provision corresponding to that of Article 3751 of the Code which would deprive the general shareholders’ meeting of the right to give the management board binding instructions. Any instructions given in the resolutions of the shareholders of a private liability company are binding upon the management board if they comply with the law and the company’s articles of association.
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Civil law partnership
The power to represent a civil law partnership follows from an authorisation to manage the partnership’s affairs by a partner or by an agent.
Each partner may represent the partnership within limits corresponding to those of his/her powers to manage the partnership’s affairs. Therefore, each partner may represent the partnership alone in the case of actions falling within the scope of the ordinary administration or urgent actions the non-performance of which could trigger irreparable losses to the partnership. For actions other than an ordinary action or for ordinary actions to which one of the partners has objected, a partners’ resolution shall be passed before representation actions are taken.
Registered partnership
In registered partnerships, each partner may represent it. As a rule, registered partnerships are represented by a single partner, however, the partnership agreement may provide for a joint representation with another partner or a holder of the commercial proxy. In addition, the registered partnership may be represented by holders of a commercial proxy, attorneys, liquidators and bankruptcy receivers.
The scope of the partners’ representation shall extend to all actions in court proceedings as well as to out-of-court dealings.
The Polish Partnerships and Companies Code provides for the following rules for representation of companies:
Pursuant to Article 205 (1) (private limited company), Article 373 (1) (public limited company) and Article 30066 and Article 30078 of the Polish Partnerships and Companies Code, if the articles of association (statutes) do not contain any provisions concerning representation, statements on behalf of the company shall be made by two members of the management board (joint representation) or by one member acting jointly with a holder of the commercial proxy (mixed representation). Therefore, the provisions of the Polish Partnerships and Companies Code concerning the representation of companies shall be applied only where the articles of association (statutes) do not contain different provisions in this respect and where the management board comprises several members. If the management board has only one member, the company may always be represented by this member acting independently (representation to act alone). It is not permitted to include, in the articles of association (statutes), a provision according to which the company may be solely represented by the single member of the management board acting jointly with a holder of the commercial proxy, as this solution would prevent the management board from acting independently, which would be contrary to the nature of companies.
Statements made in the case of joint representation do not have to be made simultaneously. The period of time between the two or more joint statements of intent are made is also irrelevant (e.g. judgement of the Supreme Court of 26 August 2009, I CSK 32/09). To fulfil the requirements of joint representation, it is necessary for the members of the management board to act jointly, which, in the opinion of the Supreme Court, should arise from the content of their statements and from the circumstances in which they are made (judgement of the Supreme Court of 26 November 2006, II CSK 233/06).
Article 228 of the Polish Partnerships and Companies Code (see also Article 229 and 230 thereof) in respect of a private limited company, Articles 393 and 394 of the said Code in respect of a public limited company and Article 30081 of the said Code in respect of a simple public limited company, provide for actions which require a resolution of shareholders of a limited liability company, with these actions being performed by persons authorised to represent the company and being exhaustively specified by the law. Restrictions on representations for public private companies are set out in Article 357 of the Polish Partnerships and Companies Code, which provides for internal limitations in the management of the company’s affairs. These limitations are primarily based on the internal company structure which are effective solely towards the company.
Some limitations may be imposed on members of the management board by means of resolutions of the general shareholders’ meeting only in matters in respect of which the members’ rights to take decisions are limited by virtue of the law or articles of association/statutes. As a rule, neither the general shareholders’ meeting nor the supervisory board may issue binding instructions relating to the management of the company’s affairs. For example, the provisions of the Polish Partnerships and Companies Code concerning the private limited company do not include a provision corresponding to that of Article 3751 of the Code which would deprive the general shareholders’ meeting of the right to give the management board binding instructions. Any instructions given in the resolutions of the shareholders of a private liability company are binding upon the management board if they comply with the law and the company’s articles of association.
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11. Does that restriction have any legal effect towards third persons?
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Pursuant to Article 17 of the Polish Partnerships and Companies Code, where the law requires a resolution of the shareholders or the general meeting or that of the supervisory board in order for the company to be able perform a legal act, the legal act without the required resolution shall be invalid.
Consent may be expressed before or after the company makes the relevant statement, however no later than within two months of the date on which the statement was made. A confirmation expressed after the company makes the statement shall be retroactive to the date of execution in the legal act.
A legal act performed without the consent of the competent body of the company required exclusively under the articles of association or statutes shall be valid. This, however, shall not exclude the liability of members of the management board towards the company for a breach of the articles of association or statutes.
Moreover, under Article 204 of the Polish Partnerships and Companies Code (compare Article 372 of the said Code by analogy), the right of a member of the management board to manage the company’s affairs shall extend to all court proceedings and out-of-court dealings of the company. In addition to that, the provision in question expressly provides that the right of a member of the management board to represent the company may not be restricted with legal effect against third parties. It follows from the above that a member of the management board may effectively represent the company against third parties in court proceedings and out-of-court dealings if he/she acts in compliance with the manner of representation (e.g. acting jointly with another member of the management board). Restrictions in the representation rights of a member of the management board has legal effect only in internal matters (e.g. a ban for a member of the management board from entering into specific agreements).
Nor may a member of the management board be deprived of his/her right to represent the company with legal effect against third parties in cases where the representations rules provided for in the Code are replaced by relevant provisions of the articles of association/statutes, (Article 204 (2) and 372(2) of the Polish Partnerships and Companies Code apply by analogy).
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Consent may be expressed before or after the company makes the relevant statement, however no later than within two months of the date on which the statement was made. A confirmation expressed after the company makes the statement shall be retroactive to the date of execution in the legal act.
A legal act performed without the consent of the competent body of the company required exclusively under the articles of association or statutes shall be valid. This, however, shall not exclude the liability of members of the management board towards the company for a breach of the articles of association or statutes.
Moreover, under Article 204 of the Polish Partnerships and Companies Code (compare Article 372 of the said Code by analogy), the right of a member of the management board to manage the company’s affairs shall extend to all court proceedings and out-of-court dealings of the company. In addition to that, the provision in question expressly provides that the right of a member of the management board to represent the company may not be restricted with legal effect against third parties. It follows from the above that a member of the management board may effectively represent the company against third parties in court proceedings and out-of-court dealings if he/she acts in compliance with the manner of representation (e.g. acting jointly with another member of the management board). Restrictions in the representation rights of a member of the management board has legal effect only in internal matters (e.g. a ban for a member of the management board from entering into specific agreements).
Nor may a member of the management board be deprived of his/her right to represent the company with legal effect against third parties in cases where the representations rules provided for in the Code are replaced by relevant provisions of the articles of association/statutes, (Article 204 (2) and 372(2) of the Polish Partnerships and Companies Code apply by analogy).
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12. How can the representative prove the right of representation (e.g. extract in paper from the registry certified by some authorities, extract from public registry)?
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The representative can prove his/her right to represent a company based on the entry in the register of entrepreneurs of the National Court Register. This is a public register. When conducting a search, the National Court Register number has to be provided in the browser. To verify the rules for and restrictions on representation, the articles of association/ statutes as well as amendments thereto should be checked, with all these documents and amendments being disclosed in the National Court Register.
https://ekrs.ms.gov.pl/web/wyszukiwarka-krs/strona-glowna/index.html
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https://ekrs.ms.gov.pl/web/wyszukiwarka-krs/strona-glowna/index.html
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13. Are there any circumstances where the transactions entered into by the legal representative of a company are considered not binding on the company (e.g. for a valid transaction should there be a decision or consent of the shareholders, supervisory body)? If yes, please explain.
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See answer to question 11.
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14. Is it possible to verify the right of representation by digital means from the register? Please indicate the source and in which language the inquiries should be conducted.
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15. When anti-money laundering measures are applied, how are the beneficial owners of a legal entity registered in your country identified? Would there be different possibilities for professionals from other countries to identify the beneficial owners? Please indicate the source and in which language the inquiries should be conducted.
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The Polish Act of 1 March 2018 (unified text: Journal of Laws of 2018, item 723 as amended) lays down the AML/CTF rules and procedures, which also provide for methods for verifying the identity of beneficial owners.
The law requires obliged institutions (including notaries) to identify and assess the money laundering and terrorism financing risks related to a client’s economic relations or an occasional transaction performed by the client. Based on such risks and their assessment, obliged institutions shall apply financial security measures, which involve obtaining information concerning their clients and the reasons why they have decided to use the services and products offered by the obliged institutions. If the circumstances of the case indicate a suspicion that money laundering or terrorism financing crimes have been committed, the obliged institution shall notify the General Inspector for Financial Information of this fact. In practical terms, the notary shall report to the General Inspector for Financial Information all above-the-threshold transactions, i.e. the amount of which exceeds 15,000 euro. Please not that each obliged institution shall develop its own internal procedure that complies with the provisions of the said Act.
Pursuant to Article 36 of the said Act:
1. The identification of a client involves ascertaining:
1) for natural persons: the client’s first name and surname, citizenship, personal identification number or - in the absence thereof – date of birth, country of birth, series and number of a document proving the client’s identity, if the obliged institution has such information - address of residence, and for notarial persons carrying out business activity: business name and tax number as well as the address of the place of carrying out the principal activity;
2) for legal persons or organisational units without legal personality: business name, organisational forms, address of the registered office or place where the activities are carried out, tax ID number, and in the absence thereof - the country of registration, commercial register, date and number of registration, identification data referred to in 1) letters a) and c), a person representing a respective legal person or organisational unit without legal personality.
2. The identification of a beneficial owner involves the verification of the data referred to in (1) a) and b) of the Polish AML /CF Act as well as the data referred to in (1) a)-d) provided that the obliged institution has such data.
3. The identification of a person authorised to act on behalf of a client involves verifying the data referred to in 1 a) – d).
More detailed information can be found on the following websites:
https://www.gov.pl/web/finanse/generalny-inspektor-informacji-finansowej
https://www.gov.pl/web/finanse/przeciwdzialanie-praniu-pieniedzy-i-finansowaniu-terroryzmu
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The law requires obliged institutions (including notaries) to identify and assess the money laundering and terrorism financing risks related to a client’s economic relations or an occasional transaction performed by the client. Based on such risks and their assessment, obliged institutions shall apply financial security measures, which involve obtaining information concerning their clients and the reasons why they have decided to use the services and products offered by the obliged institutions. If the circumstances of the case indicate a suspicion that money laundering or terrorism financing crimes have been committed, the obliged institution shall notify the General Inspector for Financial Information of this fact. In practical terms, the notary shall report to the General Inspector for Financial Information all above-the-threshold transactions, i.e. the amount of which exceeds 15,000 euro. Please not that each obliged institution shall develop its own internal procedure that complies with the provisions of the said Act.
Pursuant to Article 36 of the said Act:
1. The identification of a client involves ascertaining:
1) for natural persons: the client’s first name and surname, citizenship, personal identification number or - in the absence thereof – date of birth, country of birth, series and number of a document proving the client’s identity, if the obliged institution has such information - address of residence, and for notarial persons carrying out business activity: business name and tax number as well as the address of the place of carrying out the principal activity;
2) for legal persons or organisational units without legal personality: business name, organisational forms, address of the registered office or place where the activities are carried out, tax ID number, and in the absence thereof - the country of registration, commercial register, date and number of registration, identification data referred to in 1) letters a) and c), a person representing a respective legal person or organisational unit without legal personality.
2. The identification of a beneficial owner involves the verification of the data referred to in (1) a) and b) of the Polish AML /CF Act as well as the data referred to in (1) a)-d) provided that the obliged institution has such data.
3. The identification of a person authorised to act on behalf of a client involves verifying the data referred to in 1 a) – d).
More detailed information can be found on the following websites:
https://www.gov.pl/web/finanse/generalny-inspektor-informacji-finansowej
https://www.gov.pl/web/finanse/przeciwdzialanie-praniu-pieniedzy-i-finansowaniu-terroryzmu
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