International Standards on Director Liability: Poland as the Outlier — and the Slow EU Convergence
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).
International soft law gives the comparison a normative dimension: not just how Poland differs, but whether the difference is the kind international best practice endorses. The short answer: Poland was early about the destination and remains alone in the harshness of the vehicle.
UNCITRAL, OECD, and the World Bank
The UNCITRAL Legislative Guide on Insolvency Law, Part IV (2013), the most authoritative global framework on directors’ obligations in the period approaching insolvency, deliberately prescribes no single model, but its architecture is unmistakably calibrationist: obligations should arise when insolvency is imminent or unavoidable; states should define the liability-creating conduct, the persons owed, and the available defences; and liability should be tuned to discourage both excessive risk-taking and excessive risk-aversion. Poland’s tests of insolvency fit the framework comfortably. Its liability mechanism does not: a regime in which the defences exist on paper but operate, through the presumption structure, close to strict liability sits outside the band UNCITRAL contemplates as best practice. The risk-aversion half of UNCITRAL’s symmetry, the recognition that over-deterred directors file too early, abandon viable rescues, and refuse appointments in distressed companies, is the half Polish law has never legislated for.
The G20/OECD Principles of Corporate Governance (2023 revision) pursue board accountability through fiduciary duty, transparency, and effective oversight, accountability mechanisms, not debt guarantees. Poland satisfies the Principles’ accountability objective and then continues well past it; nothing in the OECD framework calls for, though nothing forbids, the quasi-guarantee.
The World Bank Principles for Effective Insolvency and Creditor/Debtor Regimes (2021) endorse exactly the commencement architecture Poland uses, a primary liquidity test optionally supplemented by a balance-sheet test, and call for clear, predictable director obligations. On commencement design Poland is a model pupil; the Principles’ demand for predictability, however, reads awkwardly against the oracle problem, where the trigger date is clear in everything except its application.
The EU dimension: Directive 2019/1023 and the harmonisation agenda
The EU is where movement is occurring, and where intellectual honesty requires careful tense management. Directive (EU) 2019/1023 on preventive restructuring is settled law: it obliges Member States to maintain early-stage restructuring frameworks and embeds the “rescue culture,” a philosophy Poland has implemented in its restructuring procedures, which genuinely function as the liability-relieving alternative to bankruptcy described throughout this guide. The second instrument, the insolvency harmonisation directive built on the Commission’s December 2022 proposal, contains a harmonised duty on directors to request the opening of insolvency proceedings no later than three months after they became aware, or could reasonably be expected to have been aware, of insolvency, with civil liability for breach.
Two features deserve emphasis, with epistemic labels attached. Certain: the proposal’s three-month duty carries a knowledge trigger, “became aware or could reasonably be expected to have become aware,” which is precisely the element Poland’s objective thirty-day rule lacks. To be verified by the reader: the instrument’s adoption status and transposition timeline (analyses accompanying this text place adoption in 2025 with transposition running to the end of the decade; given the pace of EU legislative procedure, confirm the current state before relying on it). The direction of travel is clear either way: the EU is converging toward the principle that directors owe creditors a filing duty enforced by personal liability, vindicating the Polish premise, while rejecting the Polish mechanism in favour of longer deadlines and subjective triggers. Poland was early rather than wrong about the destination, and remains alone in the harshness of the vehicle.
The lex ferenda question writes itself: if the EU’s harmonised future is a knowledge-triggered, three-month, fault-sensitive duty, the days of the thirty-day objective guillotine may be numbered. But transposition horizons being what they are, every director reading this guide will serve out their mandate under the guillotine. Plan accordingly, and note that Poland’s own business judgment rule, a separate 2022 reform, does nothing to soften the wait.
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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.