POLAND Law and Practice Contributed by: Agnieszka Janicka and Krzysztof Hajdamowicz, Clifford Chance
3.5 Directors’, Officers’ and Shareholders’ Liability
“piercing the corporate veil”, and attempts to introduce the concept have so far been unsuc - cessful. As it stands, shareholders are liable to the company only to the extent that they fail to make agreed contributions or that they receive unlawful distributions, or under the general prin - ciples of tort law. A major amendment to the Commercial Compa - nies Code came into force on 13 October 2022, changing the rules on the liability of members of the corporate bodies and introducing a regu - lated group concept and related holding com - pany law. A member of the management board or supervisory board is not liable for damage caused to the company when acting within the limits of a justified economic risk on the basis of information, analyses and opinions that should be taken into consideration in the relevant cir - cumstances. However, this does not override the duty to act with professional due diligence and loyalty to the company, which applies to the members of the management board and super - visory board of a limited liability company and a joint stock company. The right of a parent company to issue a binding instruction to a subsidiary was also introduced. However, under certain circumstances a subsidi - ary is entitled to refuse to carry out the instruc - tion issued. The members of the management board, the supervisory board or audit committee and the liquidators of a subsidiary and a parent company are exempt from liability for damage caused by the execution of a binding instruc - tion if they acted in the interest of the group. Accordingly, the liability of the parent company is correspondingly enhanced, creating the pos - sibility of holding a parent company liable for damage caused by its binding instructions given to a subsidiary, the minority shareholders of a subsidiary or the creditors of a subsidiary. Estab -
Each officer of the company is obliged to act in its interests and is liable to the company for any damage caused by acts or omissions in breach of the law or articles of association. Members of the corporate bodies are liable for any dam - age caused by lack of required diligence in the course of performance of their functions or a breach of the duty of loyalty towards the com - pany, resulting in the damage. The members of the management board (and directors of the simple joint stock company) may be jointly and severally liable for the company’s debts in terms of all their assets if enforcement against the company proves ineffective (ie, if the company’s assets are insufficient to cover the claims). However, a member of the management may be released from this liability in certain cir - cumstances – for example, if they can prove that a petition to have the company declared bank - rupt was filed in due time (or delayed without their fault). As the burden of proof will rest entirely with the management board member, it may sometimes be very difficult for the member to succeed in being released from liability. Similar rules regard - ing the personal liability of management board members apply to taxes and certain other pub - lic charges. Finally, a breach of certain duties (eg, reporting duties) may also trigger criminal liability. In practice, the members of the management board (as executive directors) are more exposed to each type of liability than the members of the supervisory board (as non-executive directors), which is worth considering when deciding on the structure and composition of the boards. Polish law does not currently recognise the concept of
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