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 – 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.
