Key distinctions in directors’ financial obligations between the United States and Polish systems.
Chapter 4
In both the Polish and U.S. systems, the assumption is that a board member is responsible for their own actions – if they are unlawful and intentional. However, in the Polish and American systems, these concepts are given drastically different meanings.
In Poland, the harm of a creditor that will be examined is simply company’s failure to repay its debt, while director’s “fault” in this regard will be the failure to file a bankruptcy petition – which is a fundamental difference compared to the American system. According to Article 299 § 2 CCC, a condition that exempts a member of the company’s management board from liability for its unsatisfied obligation is also showing that the creditor did not suffer any damages despite the member of the board not filing a bankruptcy petition. In order to establish the lack of harm under Article 299 § 2 CCC on the side of the unsatisfied creditor of the company, it is necessary to demonstrate that in the bankruptcy proceedings the creditor would not be satisfied, even if the proceedings were initiated earlier [judgment of the Appellate Court in Poznań – Civil Division I of December 16, 2022, I AGa 191/21].
If the condition of fault for actions in the form of failure to file a bankruptcy petition is met, it is essentially irrelevant whether the board member had knowledge of the company’s affairs or decisions were made by third parties. The severity of this provision is especially apparent in cases involving directors who have had no involvement in managing the company’s affairs at all.
An individual who (without compulsion, threat, or deceit) consented to be appointed to the board of a company with the awareness that they would only play a “figurehead” role, and subsequently agreed to such a state of affairs, bears full responsibility for the activities of the company and the consequences of failed business ventures or actions detrimental to the company, carried out by individuals authorized, with their consent, to manage the company in practice. Consequently, consciously and voluntarily relinquishing actual management of the company to a person outside the board does not exempt the board member from their duties arising from holding a position in that body, nor from liability for their failure to fulfill those duties. One of these duties is monitoring the company’s debt to enable the timely submission of a bankruptcy petition or initiation of a composition proceeding, which, in turn, releases them from liability for arrears [Judgment of the Court of Appeal in Krakow – Civil Department I of November 24, 2021, I AGa 139/20].
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.
