New regulations regarding capital companies, being
part of the so-called small and medium-sized
enterprises package (SME package), have been in
force since 1 March 2019. The SME package
introduced changes in tax law, labour law and the
commercial companies code that are to provide
simplifications for entrepreneurs – as results from
the title of the Act of 9 November 2018 amending
certain acts in order to introduce simplifications for
entrepreneurs in tax and economic law. While the
other provisions of the package came into force at
the beginning of the year, vacatio legis for the
provisions amending the commercial companies
code was three months and, as such, the changes
did not take effect until March. The most important
of them will be discussed below.
One of the key changes concerns the resignation of
management board members of limited liability
companies and joint-stock companies. Paragraph 6
was added to Article 202 and paragraphs 51 and 52
were added to Article 369. According to the
amendment, the sole member of the management
board may no longer “abandon” a capital company
– when submitting his or her resignation from the
office, s/he will be required to convene a
shareholders’ meeting at the same time. A
statement of resignation should be attached to a
notice of the meeting and does not take effect until
on the day following the scheduled date of the
meeting. The change is aimed to avoid the situation where a vacant office of a management board
member prevents a company from operating, in
particular where no proxies have been appointed in
the company. The procedure also applies in joint-
stock companies, with the modification that it will
apply only if no vacancy in the supervisory board is
filled. As a result, the last management board
member will be forced to remain in the company
for such period as is required to convene the
meeting. These changes are assessed as somewhat
arguable. This will definitely require modification
of certain standard operating procedures in
economic dealings, e.g. in the case of post-closing
activities under share deal transactions.
The change regarding resolutions that may be
adopted in a written vote is a significant
improvement for entrepreneurs. As of 1 March
2019, resolutions that should be the subject of an
annual meeting of shareholders in a limited liability
company (approval of financial statements for the
previous financial year, adoption of resolutions on
profit distribution or loss coverage and on
acknowledgement of the fulfilment of duties by
management board members) may also be adopted
in a written vote. Therefore, there will be no need
for the physical presence of shareholders at the
meeting or for granting any powers of attorney. The
operation of companies in this respect will be
significantly streamlined. However, the amendment
does not dispel all doubts as it is not apparent
whether a written vote may apply to resolutions
that require a secret vote.
Another important modification is a company’s
right to confirm a contract concluded without or
beyond the scope of authority – in relation to
persons that have concluded a contract as a body of
a legal person without being duly authorised to do
so. An amendment to Article 39 of the Civil Code
allows an activity to be confirmed by a legal person
on whose behalf the activity was effected. As such,
any defects resulting from improper appointment of
the body will be capable of remedy, which is of
great practical importance.
Other changes relate, among others, to changes in
articles of association of a limited liability company
in organisation (it has been resolved that unanimity
by all shareholders is required in this respect),
cancellation of a meeting in a limited liability
company (this right is vested in the entity that has
convened the meeting) and the determination of a
dividend date in a limited liability company.
These changes tend to have an actual positive
impact on the functioning of capital companies and
to streamline a number of procedures. Insofar as
the provisions concerning the resignation of the last
management board member impose additional
obligations, their introduction – from the practical
point of view of the legislator – is understandable.
MILLER CANFIELD
W. BABICKI, A. CHEŁCHOWSKI I WSPÓLNICY SP.K.
ul. Batorego 28-32
81-366 Gdynia
Tel. +48 58 782-0050
Fax +48 58 782-0060
gdynia@pl.millercanfield.com
ul. Nowogrodzka 11
00-513 Warszawa
Tel. +48 22 447-4300
Fax +48 22 447-4301
warszawa@pl.millercanfield.com
ul. Skarbowców 23a
53-125 Wrocław
Tel. +48 71 780-3100
Fax +48 71 780-3101
wroclaw@pl.millercanfield.com
Disclaimer: This publication has been prepared for clients and professional associates of Miller Canfield. It is intended to provide only a summary of
certain recent legal developments of selected areas of law. For this reason the information contained in this publication should not form the basis of any
decision as to a particular course of action; nor should it be relied on as legal advice or regarded as a substitute for detailed advice in individual cases.
The services of a competent professional adviser should be obtained in each instance so that the applicability of the relevant legislation or other legal
development to the particular facts can be verified.