POLAND Law and Practice Contributed by: Piotr Augustyniak, Nash Concept Ltd
selection and supervision; and directors’ and officers’ insurance is available and increasingly bought. Lia - bility for intentional wrongdoing cannot be excluded in advance, and exculpatory clauses are construed against the fiduciary. 6.3 Fiduciary Regulation There is no Polish counterpart to a prudent investor statute. The management board of a family founda - tion invests within the permitted-activity catalogue and within whatever investment policy the founder has written into the statute, its conduct measured after the fact by the professional standard of diligence; the legislature has deliberately left asset allocation to the founder’s private ordering rather than to a statutory theory of investment. Court-supervised fiduciaries stand at the opposite pole: guardians of minors and of incapacitated adults require the authorisation of the guardianship court for acts exceeding ordinary management, and the courts’ practice confines the investment of wards’ funds to conservative instruments. Regulated intermediaries – banks, investment firms, fund managers – are sub - ject to the MiFID-derived conduct framework, which in practice supplies the professional benchmark against which delegated investment management for founda - tions is structured and assessed. 6.4 Fiduciary Investment Polish law prescribes no investment theory and does not mandate diversification; modern portfolio theory enters through contract and market practice – the investment policies written into foundation statutes and the mandates given to licensed managers – rather than through statute. A concentrated portfolio is not, of itself, a breach of duty; what the professional stand - ard requires is a decision process adequate to the foundation’s purpose and to the founder’s expressed intentions. The family foundation is expressly designed to hold active businesses, but indirectly: it may join and par - ticipate in companies and partnerships and exercise shareholder rights, and the holding of an operating group beneath the foundation is the paradigm struc - ture. What it may not do is conduct an operating busi - ness itself beyond the permitted catalogue – trading,
manufacturing or services carried on directly by the foundation attract the punitive 25% corporate rate. The boundary between governing a business through shareholdings and running one directly is therefore the central compliance line, ordinarily managed by keep - ing all operations in subsidiaries. 7. Citizenship and Residency 7.1 Requirements for Domicile, Residency and Citizenship Tax residence attaches to an individual who has their centre of personal or economic interests in Poland or who spends more than 183 days in Poland in a tax year; either limb suffices, and treaty tie-breakers resolve dual residence. Immigration status follows the general European pattern: EU and EEA citizens reside freely subject to registration, while third-coun - try nationals proceed through temporary residence to permanent residence or EU long-term residence, ordinarily after five years of lawful stay. Citizenship is transmitted by descent without genera - tional limit, which gives the confirmation of citizenship procedure – tracing status through emigrant ancestors – great practical importance for the diaspora. Natu - ralisation takes two forms: recognition as a citizen by the voivode, which is the standard route and ordinarily requires three years of permanent residence together with a stable income, accommodation and certified Polish at level B1; and the grant of citizenship by the President of the Republic, which is discretionary and subject to no statutory conditions. Poland tolerates dual citizenship, requiring only that its citizens deal with Polish authorities as Polish citizens. 7.2 Expeditious Citizenship Poland operates no citizenship-by-investment or res - idence-by-investment programme, and no such pro - gramme has been proposed. The expeditious routes are status-based. Persons of Polish origin and holders of the Karta Polaka acquire permanent residence on a privileged basis and may be recognised as citizens after only one year of permanent residence; spouses of Polish citizens qualify for recognition after two years of permanent residence and three years of marriage; and the presidential grant, being free of statutory
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