The Legal Underpinning for the Subsidiary Liability of Directors Regarding a Company’s Debts
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).
The subsidiary liability of directors in Poland is not one rule but a system of interlocking provisions. The foreign director should hold the full map in mind, because the provisions differ in scope, in claimant, and, critically, in which corporate form they cover.
Civil liability for commercial debts (Article 299 CCC)
If enforcement against a limited liability company proves ineffective, management board members are jointly and severally liable for its obligations. This is the workhorse provision. It applies to the sp. z o.o. (and, through Article 299¹, to its liquidators; a parallel construction covers the simple joint-stock company). It does not apply to the classic joint-stock company (S.A.), a structural quirk with planning implications noted below. The escape routes are a timely bankruptcy petition, a timely opened restructuring, proof of no fault, or proof of no creditor damage, each examined in the dedicated chapter on Article 299.
Damages for late filing (Article 21(3) and (3a) Bankruptcy Law)
Anyone obliged to file a bankruptcy petition who fails to do so within the statutory deadline is liable for the damage caused; since 2016 the law presumes the damage equals the creditor’s unsatisfied claim. This provision covers representatives of all legal persons, including joint-stock companies, and is the principal route by which S.A. board members face creditor claims. It is fault-based (the director may prove absence of fault), which makes it gentler than Article 299 in theory, though the statutory presumption of damage does much of the claimant’s work in practice.
Financial responsibility for unpaid taxes (Article 116 Tax Ordinance)
Board members of limited liability companies, joint-stock companies and simple joint-stock companies, in each case including companies “in organisation,” answer with their entire assets for the company’s tax arrears where enforcement against the company is wholly or partly ineffective, unless they establish one of the statutory defences. By Articles 31 and 32 of the Social Insurance System Act, the same regime governs unpaid ZUS social security contributions, in a payroll-heavy business often the largest single exposure. The whole of this track is set out in the chapter on tax-arrears liability.
Liability towards the company (Articles 291–293 CCC)
The familiar, internationally recognisable duty-of-care liability of directors to their own company for damage caused by unlawful acts or omissions. Important, but not this guide’s main subject: it requires fault, it is owed to the company, and since October 2022 it is softened by a codified business judgment rule. The danger to the foreign director comes from the other provisions, which no business judgment protects.
Criminal provisions
Article 586 CCC criminalises the failure to file a timely bankruptcy petition; Articles 300–302 of the Criminal Code criminalise asset-stripping, enforcement frustration, and preferential payments in the vicinity of insolvency; Articles 296 and 296a address abuse of trust. These are mapped in the chapter on criminal liability.
The liability map by company type
| Exposure | Legal basis | Company forms covered | Fault required? |
|---|---|---|---|
| Commercial debts of the company | Art. 299 CCC | Sp. z o.o. (and PSA analogue); liquidators via Art. 299¹ | No — defences only |
| Damages for late bankruptcy filing | Art. 21(3), (3a) Bankruptcy Law | All legal persons, incl. S.A. | Yes, but damage presumed |
| Tax arrears | Art. 116 Tax Ordinance | Sp. z o.o., S.A., PSA (incl. in organisation) | No — defences only |
| Social security contributions | Art. 31–32 Social Insurance System Act → Art. 116 | As above | No — defences only |
| Damage to the company | Art. 293 / 483 CCC | All capital companies | Yes; BJR available since 2022 |
| Criminal: late filing | Art. 586 CCC | All capital companies | Yes (intent/negligence) |
| Criminal: harming creditors | Art. 300–302 Criminal Code | Any debtor / person managing debtor’s affairs | Yes |
Two planning observations follow directly. First, the absence of an Article 299 analogue for the S.A. means that, at the margin, the joint-stock form is structurally kinder to its board where commercial debts are concerned, though the difference evaporates for taxes and ZUS, where Article 116 covers both forms with equal severity. Second, the criminal and civil tracks are independent: a director can be acquitted of the Article 586 offence and still lose everything under Article 299, or vice versa. Polish law does not offer package deals.
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 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.
