Quasi-guaranteeing nature of directors obligations
Chapter 6
The issue of the character of the board members’ responsibility for the company’s obligations under Article 299 § 1 of the Commercial Companies Code has long been causing doctrinal doubts in Polish law and leading to significant interpretational discrepancies. Literature and case law highlight a clash of several concepts in this regard. Among the two dominant views, one assumes a compensatory nature, while the other assumes a guaranteeing (or quasi-guaranteeing) nature. Both in doctrine and case law, the essence of the responsibility under Article 299 of the Commercial Companies Code is viewed differently [e.g., judgment of the Assembly of Seven Judges of the Supreme Court – Extraordinary Control and Public Affairs Chamber dated December 13, 2022, I NSNc 433/21].
While in Poland idea that it is a compensatory measure currently prevails, for U.S. standards I would call it rather severe guaranteeing measure with no much room for discussion about personal culpability of director’s actions.
The assertion that US law does not align with the concept of directors potentially bearing quasi-guaranteeing responsibility for their company’s debts would be a significant understatement. This notion would be deemed as alarming, and any deliberations on this topic would be unequivocally dismissed as preposterous.
Robert Nogacki is a Polish attorney at law (radca prawny), the founder and managing partner of Kancelaria Prawna Skarbiec (Skarbiec Law Firm), which has operated continuously since 2006.
The law is equal for everyone, but the parties rarely are: on one side stands an organization with time, money, and lawyers, on the other a person with one business, one nest egg, and one life.
Clients rarely come to him with a legal problem. They come with a problem that also has a legal side: an audit that began with a single invoice, money entrusted to someone who has disappeared, a company that has to be passed on before it is too late. Most such matters are decided long before the first letter is written, in decisions made without asking and in deadlines nobody remembered. So he begins by asking how the client got here, not what the client should have done.
He advises entrepreneurs and families from more than a dozen countries, including those whose accounts the tax office has just seized and who do not know what to do tomorrow morning. He defends them in tax audits, customs and fiscal inspections, disputes with the tax authorities, and criminal tax proceedings. He represents victims of investment fraud and Ponzi schemes. He helps families set up family foundations and plan succession, so that a life’s work outlasts a single generation.
Not every case can be won. Every case can be run so that the client knows where they stand. Since 2006 he has represented the victims in the WGI case (Warszawska Grupa Inwestycyjna, the Warsaw Investment Group), one of the longest criminal cases in the history of the Polish financial market, because some things must not be left half finished, even when they take two decades. In the case of the collapsed cryptocurrency exchange Zonda (Zondacrypto, operated by BB Trade Estonia OÜ), he represents several hundred victims in the criminal investigation conducted by Poland’s National Prosecutor’s Office and in the Estonian bankruptcy proceedings.
Kancelaria Prawna Skarbiec is listed in the rankings of Poland’s largest tax advisory firms published by Dziennik Gazeta Prawna and Rzeczpospolita, and it is a four-time recipient (2015 to 2018) of the European Medal awarded by the Business Centre Club and the European Economic and Social Committee. Robert Nogacki publishes regularly, in the press and on the firm’s website, for people who have a problem rather than a law degree, because a legal opinion the client cannot understand protects only the lawyer.
He believes that the best legal advice is the kind that means the client never has to appear in court.
