Streszczenie:On 9 June 2011 Sejm has passed the Act amending the act – Criminal Code and other acts, that provide, among the others, repeal of Article 585 of the Commercial Companies Code providing for criminal liability for acting to the detriment of a company.

Acting to the detriment of the company prosecuted upon request

Moreover, similar provisions provided in the Act on European Economic Interest Grouping and European Company, the Law on Insurance Activity, the Law of Co-operatives and the Law on European Co-operative Society are repealed.

As an effect of entering in force of this amendment, the sole basis of liability for causing damage to the company and another legal entities shall be amended Article 296 of the Criminal Code.

The amendment introduces new type of crime – bringing the direct threat of causing significant material loss. Such crime shall be prosecuted ex officio only when the injured party is State Treasury. In case of other legal persons, the crime will be prosecuted at the request of the injured party. Such approach leaves the decision to launch criminal proceedings at the discretion of the injured company, its shareholder or its creditor. It allows to settle the conflict between the interested parties without initiating the criminal proceedings. The request for prosecution will be filed only if the interested parties fail to reach an agreement.

The amendment will come into force – as to the principle – on 13 July 2011.

New directive on mergers of public limited liability companies

On 5 April 2011, Directive 2011/35/EU of the European Parliament and the Council was passed, concerning mergers of public limited liability companies. It will replace the existing Third Council Directive regulating the issue of mergers of public limited liability companies, which had been subject to a number of changes and required uniformity.

The new act regulates issues such as audits of merger plans by auditors and the contents of subsequent reports. It also provides that independent experts acting on behalf of each of the merging companies, appointed or approved by a judicial or administrative authority, must examine the draft merger conditions and draw up a written report to the shareholders. The report indicated that these experts must in any case state whether, in their opinion, the share exchange ratio is fair and reasonable.

The Directive comes into force on 1 July 2011.

Making things easier for business

On 13 May 2011 the Act Amending the Law on the Freedom of Economic Activity and Certain Other Laws was passed (we mentioned the project of this act in previous editions of the Newsletter). According to the amended act, businesses will be able to undertake economic activity from the date of submitting a correct application for entry to the Central Registry and Information on Economic Activity (CEIDG), or after the company is registered in the Companies Register in the National Court Register. In the application it will be possible to determine a later date of commencing activity than the submission date. If the application is submitted incorrectly, the system automatically notifies the applicant, pointing out the errors.

According to the amended act, businesses will be able to undertake economic activity from the date of submitting a correct application for entry to the Central Registry and Information on Economic Activity (CEIDG), or after the company is registered in the Companies Register in the National Court Register. In the application it will be possible to determine a later date of commencing activity than the submission date. If the application is submitted incorrectly, the system automatically notifies the applicant, pointing out the errors.

The project provides for self-registration, or submitting the application using the form on the website as the basic form of entry into CEIDG. Apart from that form, the company will still be able to request a hardcopy application form from the district office, regardless of the place of residence. By submitting an application for entry into CEIDG, the company will be able to choose the form of tax on corporate entities.

In addition, the CEIDG website will include figures on the company (such as address, type and scope of operation, permits and licences held, etc.). Companies will also be able to access the company e-mail addresses and its website. The public will not be given personal information while conducting business.

From 1 January next year, CEIDG to begin operating a register of powers of attorney. In practice, this will be particularly useful for holders of powers of attorney acting on their principals’ matters electronically. The obligation to use a separate power of attorney disappears.

The company will also be able to suspend operations for a certain number of days or months. The minimum period of suspension will be 30 days. This solution will enable the continuity of periods on which, for example, the rights to social security benefits depends.

The new solutions significantly shorten the time of obtaining practical information in connection with establishing a company, and also speed up the transfer of information to businesses. Responses from the ‘point of contact’ will be available within 14 days.

No more separate proceedings in cases between businesses

On 17 May 2011, the Council of Ministers approved a draft amendment to the Code of Civil Procedure prepared by the Ministry of Justice, removing the requirement to have separate proceedings in economic matters.

Cases between businesses concerning their activities would be dealt with in ordinary civil proceedings. Currently such cases are subject to separate proceedings, characterised by a greater formalism e.g. non-admission of evidence – the duty for the claimant to accommodate all statements, facts and evidence in the lawsuit, and by the defendant in the response to the lawsuit, the inadmissibility of new claims instead of existing and bringing a counterclaim. The proposed changes are to meet the demands of business organizations.

Despite the removal of proceedings in economic cases assumed by the draft, the commercial courts will be retained as court divisions, which is aimed at exploiting the current economic specialisation of judges in dealing with these cases. Only cases in the area of energy regulation, postal regulation and railway transport regulation are to be transferred to the jurisdiction of administrative courts..

The planned amendment will also cover a number of provisions strengthening the enforcement system. Bailiffs will be able to set higher fines, which will ensure the more effective implementation of their tasks.

Simplified reporting and documentation for mergers and divisions

On 17 May 2011, the government adopted a draft act amending the Commercial Companies Code aimed at simplifying the current rules on audits by auditors, on providing information about changes in assets and liabilities of the company, and on the publication of merger or division plans.

The draft law implements to Polish law the European Parliament and Council Directive 2009/109/EC of September 2009, on reporting and documentation requirements in the case of mergers and divisions.

The draft states that an auditor will not have to consider the report of the company’s founders in respect of contributions in-kind, covering such things as securities or other financial instruments, if their value is determined by the weighted average price that was on a regulated market over a six-month period preceding the date of the contribution. An auditor's opinion will also not be needed in the case of other assets if their fair value results from the financial statements for the previous year, which were audited by an auditor.