Commercial Law Newsletter

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Company, the Law on Insurance Activity, the Law of Co-operatives and the Law on European Co-operative Society are repealed.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.

An audit will, however, be required in two cases:

  • If there are exceptional circumstances that have changed the price of marketable securities or other financial market instruments (in particular circumstances surrounding the loss of liquidity in the regulated market);
  • If there are new circumstances affecting the fair value of contributions.

The amendment also provides for the possibility of waiving the need to draw up a report justifying the merger, with the consent of all the shareholders. It will also no longer be required to provide information about changes in assets and liabilities between the date of preparing the plan and adopting a resolution on the merger. The auditor does not need to analyse the merger plan and draw up an opinion on this matter.

According to the draft, the merger or division plan does not have to be announced if, within a specified period, the company will provide the plan for free on its website. The obligation to provide information about changes in assets and liabilities between the date of preparing the plan and adopting a resolution on the merger.

Tax on civil law transactions on a loan granted to the company by its shareholder contrary to the European Law

Judgment of the Court of Justice of the European Union of 16 June 2011C-212/10 – Logstor ROR Polska sp. z o.o. against Dyrektor Izby Skarbowej w Katowicach - Article 4(2) of Council Directive 69/335/EEC of 17 July 1969 concerning indirect taxes on the raising of capital, as amended by Council Directive 85/303/EEC of 10 June 1985, must be interpreted as precluding a Member State from reintroducing a capital duty on a loan taken up by a capital company, if the creditor is entitled to a share in the profits of the company, where that Member State has previously waived the levying of that tax.

The above judgment has been issued in reply to a preliminary ruling issued by the Vojevodship Administrative Court in Gliwice. The court has raised the doubt whether Poland was entitled to impose tax on civil law transactions with respect to the loans granted to the companies by the shareholders. Poland, along with accession to the European Communities, has waived the tax and then restored it in 2007 – 2008.

In accordance with the interpretation of the Directive made by the Court of Justice, the transactions referred to in that paragraph must not only have been taxable at the day of the Directive entering in force (in case of Poland – with the day of accession to EC), but must also subsequently have been continuously subject to such taxation.

The judgment of the Court of Justice is significant to Polish taxpayers. Those who have paid the undue tax between 2007 and 2008 are entitled to request a declaration of its overpayment. Pending matters will be resolved in favor of the taxpayers, while matters completed with refusal may be renewed within one month from the publication of the judgment.

Legal acts concluded implicitly (“per facta concludentia”) by employees of a company

Judgment of the Court of Appeal in Katowice of 21 October 2010 (file No VACa 328/10) – It is generally accepted in legal literature that a legal person acting, in principle, through its bodies (Article 38 of the Civil Code) may be understood to have implicitly granted a power of attorney to its employee to conclude agreements, by entrusting such an employee with specific tasks as part of day-to-day operations of the company. It is however important that the factual acts taken as part of operations of a given legal person and liable to produce legal effects, be consistent with the will of individuals authorised to make statements on behalf of such a legal person, or at least without objection on the part of the body representing a given legal person.

In practice, may legal acts are taken „per facta concludentia”. This means that certain behaviours such as placing and accepting orders, releasing and accepting goods, have specific legal effects. In the analysed case, the Court found that behaviour consisting in accepting goods and issuing an invoice may be qualified as an offer to conclude a sale agreement addressed to the other party. Due to their legal effects, such acts fall within the scope of competence of a body authorised to represent a legal person.

It is generally accepted in legal literature that a body may implicitly grant a power of attorney to conclude agreements to an employee of a legal person by entrusting the employee with specific tasks as part of day-to-day operations of the company. Thus the Court stated that it is also possible to grant an employee, implicitly, a power of attorney to perform factual acts that have legal effects. The implicit granting of such a power of attorney would imply that the relevant body had no objections against the actions of the employee.

Exiting a civil partnership whose assets comprise real properties

Resolution of the panel of 7 judges of the Supreme Court of 10 June 2011 (file No III CZP 135/10) – If the assets of a civil partnership comprise real properties or the perpetual usufruct right, a written statement, with a notarised signature, made by a partner wishing to exit the partnership is sufficient for crossing out his or her name from the land and mortgage register.

The resolution of the Supreme Court solved the dispute concerning the form in which a partner wishing to exit a civil partnership should make his or her statement, where the common assets comprise real properties.

Up till now, two approaches co-existed in the legal doctrine and jurisprudence. According to the first one, the form of a notarial deed is necessary in view of the fact that withdrawal from the partnership changes the group of individuals holding rights to the real property, just as in the case of transferring the ownership right to the real property. Those in favour of the second opinion, shared by the Supreme Court, have claimed that the withdrawal from the partnership puts an end to the relationship between the given partner and other partners and results in such partner’s loosing his or her share in the common property, whether or not the latter comprises real properties.

Abolition of the obligation to obtain a building permit is contrary to the Constitution

Ruling of the Constitution Tribunal of 20 April 2011 (file No Kp 7/09)

This ruling of the Constitution Tribunal concerns the amendment to the Construction Law, adopted on 20 April 2009.

The amendment was aimed at abolishing the obligation to obtain a building permit. Consequently, an investor would only be obliged to file a relevant application and the lack of objection on the part of the local authority (starosta) or the Poviat inspector of construction supervision within 30 days would result in the possibility to commence building works. The amended law was also to legalise, on a one-off basis, all illegal constructions built before 1 January 1995.

In view of the Tribunal, abolishing the obligation to obtain a building permit would deprive the owners of adjoining real properties of effective tool to secure their rights under administrative law. Furthermore, the Tribunal found that an act that provides for an “ex-officio” legalisation of all illegal constructions violates the trust of citizens in the State that so decided to reward illicit behaviours.

As a result of the Tribunal’s ruling, the amendment will not enter into force.

Autor: Mergers & Acquisitions and Corporate Departments of Gide Loyrette Nouel’s Warsaw office Data publikacji: 2011-07-13 Ilość stron: 1 Cena: 0