Quasi-guaranteeing nature of directors obligations
Chapter 6
The issue of the character of the board members’ responsibility for the company’s obligations under Article 299 § 1 of the Commercial Companies Code has long been causing doctrinal doubts in Polish law and leading to significant interpretational discrepancies. Literature and case law highlight a clash of several concepts in this regard. Among the two dominant views, one assumes a compensatory nature, while the other assumes a guaranteeing (or quasi-guaranteeing) nature. Both in doctrine and case law, the essence of the responsibility under Article 299 of the Commercial Companies Code is viewed differently [e.g., judgment of the Assembly of Seven Judges of the Supreme Court – Extraordinary Control and Public Affairs Chamber dated December 13, 2022, I NSNc 433/21].
While in Poland idea that it is a compensatory measure currently prevails, for U.S. standards I would call it rather severe guaranteeing measure with no much room for discussion about personal culpability of director’s actions.
The assertion that US law does not align with the concept of directors potentially bearing quasi-guaranteeing responsibility for their company’s debts would be a significant understatement. This notion would be deemed as alarming, and any deliberations on this topic would be unequivocally dismissed as preposterous.
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.
