On 2 August 2019, President Andrzej Duda signed the groundbreaking Act of 19 July 2019 amending the Commercial Companies Code and certain other acts, which introduced a number of changes into the Polish legal system. In my assessment, the most important change to the Commercial Companies Code is the introduction of the simple joint-stock company (hereinafter: PSA). It should be pointed out that, pursuant to the adopted amendment, the PSA is to be the most modern type of company in the Commercial Companies Code, primarily intended to make it easier for young entrepreneurs and start-ups to enter the market.
Basic features of the PSA
The PSA will constitute a new, third type of capital company, alongside the limited liability company and the joint-stock company. It should be noted that the PSA combines features of both partnerships and capital companies. A feature it shares with partnerships is the possibility for a shareholder to make a contribution in the form of work or services. On the other hand, with capital companies it shares, above all, the possibility of raising capital through the issuance of shares.
The articles of association of a PSA must specify at least:
- the company’s name and registered office;
- the company’s business activity;
- the number, series, and numbers of shares, any preferences attached to them, the shareholders taking up individual shares, and the issue price of the shares;
- if shareholders make non-cash contributions – the subject of such contributions, the shares taken up in exchange for the non-cash contributions, and the shareholders who take up those shares;
- if the non-cash contribution consists of the performance of work or services – also the type and duration of such work or services;
- the corporate bodies established in the company;
- the number of members of the management board and the supervisory board, if established, or at least the minimum and maximum number of members of those bodies;
- the duration of the company, if defined.
It should be emphasized that the PSA must be established by notarial deed. However, the legislator has also provided for the possibility of concluding the articles of association using a template made available in the ICT system – the S24 system.
According to the proposed regulations, in a PSA there is no obligation to pay in full the contributions covering the shares before filing the application for entry in the National Court Register (KRS); however, this must be done no later than within three years from the date the company is entered in the KRS. With regard to contributions, it should be noted that upon the establishment of a PSA it is necessary to cover the share capital with a contribution of at least PLN 1. By way of comparison, in a joint-stock company the required share capital amounts to PLN 100,000 – which, in my view, further increases the attractiveness of the PSA.
In the explanatory memorandum to the Act of 19 July 2019 amending the Commercial Companies Code and certain other acts, it was indicated that, in order to prevent payments to shareholders that could jeopardise the company’s solvency and to introduce other instruments strengthening the position of creditors, the PSA abandoned the concept of share capital as known in capital companies. Instead, the PSA provides for no-par value shares (so-called “no-par shares”) and share capital. Cash and in-kind contributions may be made to cover no-par value shares.
Moreover, the PSA differs from existing capital companies in several other respects. For example, the management board of a PSA should operate on a collegial basis. The supervisory board, on the other hand, is a fully optional corporate body, which is entitled, by way of resolution, to define a catalogue of matters that require the management board’s prior consent; however, the supervisory board has not been granted any powers to issue binding instructions to the management board regarding the conduct of the company’s affairs.
It should also be noted that PSA shareholders may depart from the traditional model involving a management board and a supervisory board by appointing a board of directors. This board may consist of one or more directors, and its members may be granted the right to manage the company’s affairs, represent it, and supervise the PSA.
As a rule, the existence of a PSA ends after liquidation proceedings are carried out. In matters not regulated in the newly introduced provisions, the rules on the liquidation of a joint-stock company apply accordingly; however, the liquidation procedure for a PSA is intended to be significantly simpler, and consequently to lead to a faster termination of the company’s existence.
Summary
The regulations concerning the PSA entered into force on 1 March 2020. In my view, the PSA is primarily intended to increase the number of start-ups established in Poland, which may ultimately have a positive impact on the national economy.
It should be noted, however, that a significant part of the legal doctrine, despite the adoption of the PSA, still takes the position that the PSA is an unnecessary legal form within the Polish legal system and that its introduction will disrupt the entire corporate system due to its anti-systemic character.
Undoubtedly, the PSA is a very modern regulation aimed at “catching up” with the market and current trends. Nevertheless, at present it is very difficult to give a clear answer as to whether the PSA constitutes a revolutionary change in Polish law. It is impossible today to assess whether the PSA will meet the objectives set out in the explanatory memorandum to the Act or whether, as suggested by legal scholars, its introduction into the Commercial Companies Code will result in a breakdown of the legal system.
Autorzy: |
Michał Klauziński
Radca prawny
Email: biznesprawnik@turcza.com.pl
W obszarze zainteresowań Michała Klauzińskiego znajduje się problematyka prawa prywatnego, w szczególności prawo cywilne, handlowe oraz rolne.
Nadzór merytoryczny: |
Marek Turcza
Radca Prawny
Email: biznesprawnik@turcza.com.pl
Mec. Turcza świadczył obsługę prawną międzynarodowych projektów private equity, uczestniczył w procesach przejęć i fuzji oraz w postępowaniach upadłościowych – w tym w postępowaniu naprawczym spółki notowanej na GPW. Posiada bogate doświadczenie w zakresie obsługi prawnej spółek kapitałowych, transakcji M&A oraz obrotu nieruchomościami.
