The Business Judgment Rule in Poland: Present, but Pointing the Wrong Way
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).
A development a diligent foreign reader may discover with relief, and must immediately learn to discount: Poland has a business judgment rule. Since 13 October 2022, the Commercial Companies Code provides (Article 293 § 3 for the sp. z o.o.; Article 483 § 3 for the S.A.; the simple joint-stock company had its version from inception) that a board member does not breach the duty of due care if, acting loyally to the company, they act within the limits of justified economic risk, including on the basis of information, analyses, and opinions that ought in the circumstances to be taken into account in making a careful assessment.
What the Polish business judgment rule protects
This is a genuine reform, and within its domain a meaningful one: it shields the rational risk-taker against the company’s damages claims under Articles 293/483, the post-acquisition lawsuit, the new owner’s retribution suit, the bankruptcy trustee acting in the company’s name on a soured investment. Document your decision process well, the information considered, the alternatives weighed, the advice received, and the 2022 rule is a real wall.
What it does not touch: Articles 299 and 116
But observe what stands on the other side of the wall and what does not. Article 299 liability is not liability for a decision; it is liability for the company’s debts, conditioned on a failed enforcement and an untimely petition. Article 116 of the Tax Ordinance likewise. Neither asks whether your business judgment was sound, informed, or loyal; the most brilliantly reasoned, immaculately documented decision to trade on for sixty more days in pursuit of a rescue is, for Article 299 purposes, simply sixty days of lateness. The business judgment rule and the transfer mechanism are not in tension; they are not even in conversation. They regulate different questions, and the question that ruins foreign directors is the one the business judgment rule does not touch.
The asymmetry in one sentence
Hence the asymmetry that defines director risk in Poland, and may serve as the closing aphorism: in Poland, the law protects you when the company sues you for being bold, and ruins you when a creditor sues you for being late. The practical response to that asymmetry, since courage is not protected, is procedure, set out in full in the protection programme.
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.
