Liability of Polish company Management Board members – TGC Legal Alert


Warsaw skyline from Pole Mokotowskie
Warsaw Skyline - TGC's new office is near the left side.
 
 TGC corporate lawyers have sent in the following reminder of legal responsibilities of directors in Poland that are often overlooked. Please take a moment to ensure you know the following if it impacts on you.
Dear Quoracy.com subscribers,We would like to draw your attention to the liability of members of the management board in Polish companies, as regulated by a number of legal acts. Management board members bear civil liability, criminal liability, liability for tax obligations, liability to the Social Insurance Office and liability resulting from specific provisions (e.g. resulting from the Accounting Act – Journal of Laws of 2009, no. 152, position 1223).According to the provisions of the Commercial Companies Code (Journal of Laws of 2000, no. 94, position 1037) members of the management board bear civil liability for actions taken on behalf of the company already at the stage of establishment of the company, i.e. from the date of signing of articles of incorporationof the company. This applies even before registration of the company with the State Court Register.It should be noted that members of the management board bear civil liability towards the company, among other things, for any damages inflicted upon the company in result of the management board members’ activities or omissions contrary to the articles of incorporation. Furthermore, they are jointly and severally liable for the company’s liabilities when enforcement proceedings against the company have proven ineffective.

Criminal liability of members of the management board arises as a result of a property damage caused to the company.

Apart from civil and criminal liability, members of the management board are jointly and severally liable for tax arrears, as well as for lack of (timely) payment of contributions to social insurance. It has to be noted that this type of liability lasts even after deletion of the company from the State Court Register.

In most cases members of the management board may protect themselves against responsibility for the company’s liabilities on condition that they undertake appropriate preventive activities in due time.

We will be happy to give you any detailed information with regard to the liability of the management board members, as well as circumstances of release of the liability.

For further information please contact our expert:

Agata Pastuchow-Brzezińska
Director of Corporate Department
T: +48 22 653 3649
E: apastuchow

TGC Corporate Lawyers
ul. Królewska 27
00-060 Warsaw, Poland
T: +48 22 653 3644
F: +48 22 827 6915
E: tgc
W: http://www.tgc.eu

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Dlaczego potrzebujemy RMUA u lekarza?


Logo of the Social Insurance Institution of Poland
Poland's Social Insurance logo

In the following article produced for the benefit of their clients but included here for general interest, is an article by one of Luxmed’s experts showing why it is that in Poland even privately insured patients still may be required by their doctor to possess proof of social insurance under certain circumstances.

Witam,

Zgodnie z Ustawą o świadczeniach opieki zdrowotnej finansowanych ze środków publicznych, lekarz ma prawo odmówić wystawienia recepty na leki refundowane, jeżeli Pacjent nie przedstawi dowodu aktualnego ubezpieczenia. Takim dowodem może być każdy dokument potwierdzający prawo do świadczeń opieki zdrowotnej finansowanych ze środków NFZ, w szczególności dokument potwierdzający opłacenie składki ubezpieczenia zdrowotnego. Continue reading “Dlaczego potrzebujemy RMUA u lekarza?”

If you haven’t appointed an auditor yet in Poland and you needed to by law, here’s what can happen…


Rzeczpospolita (newspaper)
A leading business daily in Polish

An excerpt on appointment of auditors from one of the leading Polish newspapers Rzeczpospolita.

There are a few articles here on one large page, one of them dealing with what an audit report is and what it’s supposed to contain. This is anodyne and will be what you would expect from your own country, if it is in line with IFAC standards.

Another article talks about what the audit thresholds are. I’m going to write a separate article on audit thresholds comparing different countries in our region, but Poland has the fairly sensible levels of any SA, and for an Sp. z o.o. it’s 2/3 of the following: 1) Turnover 5 million Euros in the preceding year, 2) gross assets of 2.5 million Euros in the preceding year and 3) 50 employees on average in the year. The article offers a PLN interpretation of these levels for this calendar year end. I do not really want to reproduce that as not every company has calendar year and it is also not hard to work it out whether your Company in Poland has mandatory audit or not, and if you’re not sure, ask me and I’ll tell you for free.

The most interesting article in this audit related supplement, though, is probably the one which states that in line with article 64 paragraph 1 part 4 of the Act on Accounting,  if the management needs to appoint an auditor it should be in time so that he/she can observe any material inventory counts.

So what that means in practice is that you’re probably OK if you have no stock or fixed assets. If on the other hand you do have these and they were due for a count, the auditor is risking big trouble if they come in and give an opinion on the figures not having attended the count. If this is of interest in your case, please look up the much larger on that subject below.

In the worst case there will be Companies who did their stock-counts without the observance of an auditor and they later discover they need to appoint one. Three alternative things can then happen. The first is that you chance on an ethical but unhelpful auditor, who refuses to take on an audit if the stocktake is already done. If you only meet such auditors, then you won’t be able to get the audit done and you’ll be in breach of the Act if you were over the size criterion or are a joint-stock company.

The second option is where the auditor says I can do this, but later pulls a qualification on you because of not having been able to attend the counts. You then have to file an audit report which isn’t 100% clean, and then live with the fact that you may not be able to declare a dividend and that the tax office will come breathing down you necks wondering what is going in. I don’t think it’s ethical for an auditor to lead the client into taking them by not being clear that they intend from the moment they are hired to give a modified audit report, but some people seriously justify it to themselves that it’s the client’s fault for not coming early enough.

Then there is the option where the auditor is both helpful and ethical, in that they take part in other procedures designed to make good the absence of an actual attendance at the time of the stocktake. Some auditors can use their business understanding and imagination to gain the assurance they need professionally without needing to do the whole stocktake over again. You may need to shop around to find these ones. I can certainly help you find people who approach their work in that more constructive period though.

In the very worst case, you may need to do the stock take again, but beware, you cannot do that officially after one month from year end anyway, and it involves extra work on the reconciliation afterwards, which will be on the shoulders of your chief accountant.

If you’re late appointing, don’t delay it any more – that’s the moral of the story!

Poland – New Anti-Smoking Law At Long Last!


On 15 November 2010 an amendment to the Law on Health Protection against the Consequences of Tobacco Products comes into force. The amendment introduces a total ban on smoking, i.e. in hospitals and health clinics, schools and colleges, cultural and recreation sites, pubs and restaurants, sports facilities, public transport and workplaces. Owners or property managers (e.g. hotels, schools, workplaces) may designate smoking rooms on their territory, which means separate facilities that meet certain standards of construction and air ventilation.

Implications for employers

To date smoking in the workplace was also prohibited, but employers with at least 20 staff were obliged to establish a smoking room, regardless of the number of smoking employees. Specific standards in terms of space and ventilation of smoking rooms are governed by general health and safety (BHP) regulations.

After 15 November 2010 the decision on establishment of a smoking room will belong to the owner or administrator of the building. The existing smoking rooms may continue to operate if they meet the standards required by BHP regulations. In addition, the owner or property manager is obliged to put up in visible places clear information about the ban on smoking tobacco in the building. Employees smoking outside designated sites may be punished by a disciplinary penalty, and the employer may be given a mandate.

While considering the establishment of a smoking room in the office, the employer should take into account many aspects. Creation of a smoking room generates costs, but lacking a smoking room will not result in smokers resigning their habit or improving work efficiency. The need to go outside the office premises to smoke results in a loss of working time, and the sight of groups of smokers and cigarette-ends outside the office entrance does not improve company image. Certainly, more effective would be the prevention of psychosocial hazards and the promotion of healthy behaviour by the employer.

Traditional vs. electronic cigarette

For several years e-cigarettes have been available on the market, which are electronic devices that provide inhaled doses of nicotine. The electronic cigarette is a small device – resembling a traditional cigarette – which is electric or battery powered. The “smoke” from an e-cigarette is almost odourless and much less burdensome for non-smokers.

The e-cigarette is a new product and therefore its legal status is varied. In some countries its sale is forbidden, and in some completely legal or permitted under certain conditions. Poland has not yet developed any regulations on the sale and use of e-cigarettes. Recent legal changes have not covered this issue as well, although the Ministry of Health is considering a prohibition of the sale of e-cigarettes in the near future.

The National Labour Inspectorate (PIP) receives more and more inquiries from employers and employees regarding the terms of use of e-cigarettes in the workplace. In particular, non-smoking employees are worried whether smoking e-cigarettes in the office does not cause similar effects to passive smoking. Because there is no conclusive research yet on the effects of e-cigarettes for their users and the environment, it seems possible that within their obligation to ensure all employees safe and healthy working conditions the employers introduce a ban on smoking e-cigarettes in the workplace (similar to traditional tobacco products).

To find out more

If you need a detailed interpretation of the new regulations or consultation on creating healthy work environment, please contact the  experts at TGC who are briefing businesses and individuals on this area:

Agnieszka Janowska
Director of the Labour Law Department
Tel.: +48 22 653 3862
Email: ajanowska@tgc.eu

Dorota Strzelec
Consultant/ Occupational Psychologist
HR Management Department
T:  +48 22 653 3866
E: dstrzelec@tgc.eu

TGC Corporate Lawyers
ul. Królewska 27
00-060 Warsaw, Poland
T: +48 22 653 3644
F: +48 22 827 6915
E: tgc@tgc.eu
W: http://www.tgc.eu