Key Distinctions in Directors’ Financial Obligations between the United States and Polish Systems — a Five-Jurisdiction Comparison
This article is a chapter of the ebook “Shielding Directors: A Practical Guide for Foreign Directors of Polish Companies” — see the full table of contents or download the complete ebook (PDF).
Nothing clarifies a legal system like a foreign mirror. Comparing director liability in the USA and Poland, with the UK, Germany, France and Australia alongside, shows Poland sitting at or beyond the strict edge of every dimension simultaneously. We hold up five mirrors, in ascending order of distance from Poland.
Germany: strict clock, specific conduct
German law supplies the closest relative, and the instructive differences. Under § 15a of the Insolvency Code (Insolvenzordnung), managing directors must file without undue delay, at the latest within three weeks of illiquidity (Zahlungsunfähigkeit) and six weeks of over-indebtedness (Überschuldung), deadlines even tighter than Poland’s thirty days, and delayed filing is itself criminal, up to three years’ imprisonment. So far, recognisably the same family.
The divergence lies in the civil consequences. German law imposes no general liability of the GmbH managing director for the company’s debts upon failure to file. Liability is conduct-specific: the classic head (formerly § 64 GmbHG, now § 15b InsO) attaches to payments made after the onset of insolvency, obliging the director to restore those specific outflows, not to guarantee the entire creditor body. And since 2005 Germany has codified a business judgment rule (§ 93(1) AktG), modelled with acknowledged candour on Delaware. The German director who files late answers for what they did in the twilight period; the Polish director answers for everything the company owes. Same clock, different bill.
France: liability with a causation valve
France channels director liability through the responsabilité pour insuffisance d’actif (historically the action en comblement de passif): once collective insolvency proceedings open, directors, including de facto directors (dirigeants de fait), may be ordered to bear all or part of the asset shortfall, but only upon proof of three cumulative elements: management fault, damage, and a causal link between them. The filing deadline is forty-five days from cessation of payments; banqueroute supplies the criminal layer. In scale of potential exposure, France resembles Poland, the whole deficiency may land on the director. In mechanism it does not: the French judge must find that mismanagement caused the shortfall, and retains discretion over the quantum. The causation valve, absent from Article 299, is the difference between a liability regime and a guarantee regime.
United Kingdom: the fault-based archetype
Section 214 of the Insolvency Act 1986, wrongful trading, is the provision foreign textbooks usually cite as the European benchmark, and it is everything Article 299 is not. Liability requires that the director knew or ought to have concluded that there was no reasonable prospect of avoiding insolvent liquidation; it is then defeated entirely if the director took every step to minimise creditor losses; only a liquidator or administrator may sue; and the court orders such contribution “as it thinks proper,” full judicial discretion over quantum. There is no fixed filing deadline and no criminal sanction for merely wrongful (as opposed to fraudulent) trading. The system’s flexibility showed during the pandemic, when the Corporate Insolvency and Governance Act 2020 simply suspended wrongful-trading liability for extended periods to keep boards trading through the storm. One struggles to imagine the Polish legislature suspending Article 299 because times were hard; the provision exists precisely for hard times.
United States: the anti-Poland
Delaware is the control group of this experiment. North American Catholic Educational Programming Foundation v. Gheewalla (Del. 2007) settled that directors’ fiduciary duties run to the corporation and its shareholders even in the “zone of insolvency”; upon actual insolvency, creditors gain at most derivative standing, never a direct claim against the directors for the company’s debts. The business judgment rule does the rest: informed, disinterested, good-faith decisions, emphatically including the decision when and whether to file for bankruptcy, are immune from second-guessing. As the bankruptcy court in In re Midway Games (428 B.R. 303, 315 (Bankr. D. Del. 2010)) put it, directors are not liable for actions taken “in an effort to prolong the corporation’s viability, even in the face of bankruptcy.” The American director facing distress is expected to gamble for resurrection within the bounds of good faith; the Polish director who does the same is accumulating personal liability by the invoice and, possibly, committing the offence of Article 301 § 3. No single contrast in this guide matters more for an American reader’s instincts.
Australia: the engineered middle way
Australia’s regime shows a legislature consciously tuning the trade-off the other systems take as given. Section 588G of the Corporations Act 2001 imposes a duty to prevent insolvent trading, triggered by “reasonable grounds for suspecting” insolvency, closer to Poland in trigger design than the UK. But the statute then layers on calibrated relief: the § 588H defences (reasonable expectation of solvency; reasonable reliance on a competent person; non-participation due to illness), a criminal threshold requiring dishonesty, and, since 2017, the § 588GA safe harbour, shielding directors who, upon suspecting insolvency, pursue a course of action “reasonably likely to lead to a better outcome” than immediate administration, conditional on employee entitlements being paid and tax reporting current. Australia legislated a supervised middle path. Poland’s only safe harbour is the courthouse.
The panorama in one table
| Poland | Germany | France | UK | USA (Del.) | Australia | |
|---|---|---|---|---|---|---|
| Filing deadline | 30 days | 3 wks / 6 wks | 45 days | none | none | none |
| Civil liability trigger | Failed enforcement vs company | Specific post-insolvency payments | Fault causing shortfall | Knowledge + insolvent liquidation | Breach of fiduciary duty (derivative) | Reasonable suspicion + new debt |
| Fault required? | No (defences only) | Conduct-specific | Yes (3 cumulative elements) | Yes | Yes | Yes, with defences |
| Scope of exposure | All company debts + interest + costs | Specific payments | Up to whole shortfall, discretionary | Court’s discretion | Damages for breach | Debts incurred while insolvent |
| Who claims | Any creditor, directly | Insolvency administrator | Insolvency organs | Liquidator/administrator | Derivative claimants | Liquidator/ASIC/creditors |
| Safe harbour / BJR | BJR (2022) — not vs. Art. 299/116 | Codified BJR (2005) | Judicial discretion | “Every step” defence; CIGA precedent | Robust BJR | Statutory safe harbour (2017) |
| Criminal late-filing | Yes (up to 1 yr) | Yes (up to 3 yrs) | Banqueroute | No (fraud only) | No | Only if dishonest |
Read along any row and the conclusion repeats: other systems are strict somewhere; Poland is strict everywhere at once. Whether international standards endorse that severity is the question taken up in the chapter on international standards.
Read the Full Guide
This chapter is part of the ebook “Shielding Directors: Navigating Personal Liability in Times of Financial Turmoil and Insolvency — A Practical Guide for Foreign Directors of Polish Companies.”
This article is general information, not legal advice. © Kancelaria Prawna Skarbiec
Robert Nogacki – licensed legal counsel (radca prawny, WA-9026), Founder of Kancelaria Prawna Skarbiec.
There are lawyers who practice law. And there are those who deal with problems for which the law has no ready answer. For over twenty years, Kancelaria Skarbiec has worked at the intersection of tax law, corporate structures, and the deeply human reluctance to give the state more than the state is owed. We advise entrepreneurs from over a dozen countries – from those on the Forbes list to those whose bank account was just seized by the tax authority and who do not know what to do tomorrow morning.
One of the most frequently cited experts on tax law in Polish media – he writes for Rzeczpospolita, Dziennik Gazeta Prawna, and Parkiet not because it looks good on a résumé, but because certain things cannot be explained in a court filing and someone needs to say them out loud. Author of AI Decoding Satoshi Nakamoto: Artificial Intelligence on the Trail of Bitcoin’s Creator. Co-author of the award-winning book Bezpieczeństwo współczesnej firmy (Security of a Modern Company).
Kancelaria Skarbiec holds top positions in the tax law firm rankings of Dziennik Gazeta Prawna. Four-time winner of the European Medal, recipient of the title International Tax Planning Law Firm of the Year in Poland.
He specializes in tax disputes with fiscal authorities, international tax planning, crypto-asset regulation, and asset protection. Since 2006, he has led the WGI case – one of the longest-running criminal proceedings in the history of the Polish financial market – because there are things you do not leave half-done, even if they take two decades. He believes the law is too serious to be treated only seriously – and that the best legal advice is the kind that ensures the client never has to stand before a court.
