When Is a Company Insolvent under Polish Law — and When Does the 30-Day Bankruptcy Deadline Start?
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).
Everything in Polish director liability converges on one factual question: when did the company become insolvent? From that date run thirty days to file (Art. 21 Bankruptcy Law) — and every board member bears the duty individually, with the power to file alone.
The two insolvency tests under Article 11 of the Bankruptcy Law
Loss of liquidity: the debtor loses the capacity to pay due pecuniary obligations; a delay exceeding three months presumes it. Over-indebtedness: liabilities exceed assets for more than twenty-four months — even if everything is paid on time — with shareholder loans excluded from the comparison and a balance-sheet presumption keyed to the filed accounts. Treat your annual financial statements as a liability document, not a formality.
The “temporary difficulties” trap (SN V CSK 211/10)
The merciful holding — transient payment halts are no bankruptcy ground — contains a dark joke: whether difficulties were temporary is knowable only in hindsight, when filing on time is no longer possible. The deadline then runs from the original cessation of payments, not from the day optimism expired. The court threw boards a lifeline; what the drowning received was a razor blade.
The operational rule: file on the doubt
The costs of filing early are bounded; the costs of filing late are the subject of Articles 299, 116 and 586. Boards that institutionalise a minuted, monthly solvency review against both tests convert an unanswerable hindsight question into an answerable routine.
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.
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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.
