Dear readers,


We are happy to present you the January issue of the newsletter by WBW Weremczuk Bobeł & Partners.
First of all, we would like to recommend you the article on the new powers of registry courts under which it will be possible for the court to resign from a proceeding aimed at forcing an entity to file documents with the register, and institute, ex officio, a proceeding on dissolution of a given entity without a liquidation proceeding, which should clear the register from the so-called “dead entities”.
We also present an article on automatic enforceability of court decisions issued in EU member states, which means that it will no longer be necessary to append an enforceability clause to enforcement titles issued in an EU member state to apply in a country in which the debtor wants to conduct an enforcement proceeding.
Finally, we have prepared an article on annual financial statement in the light of EU regulations.
We wish you a pleasant read,


WBW Team

Annual financial statement in the light of EU regulations

The issue of financial statements has been regulated in the Directive no. 2013/34/EU of the European Parliament and of the Council of 26 June 2013 on the annual financial statements, consolidated financial statements and related reports of certain types of undertaking amending the Directive no. 2006/43/EC of the European Parliament and of the Council and repealing Council Directives no. 78/660/EEC and 83/349/EEC. The directive was implemented in Poland under the act of 11 July 2014 amending the Accounting Act.
Under the said directive, the annual financial statement constitutes a composite whole. For all undertakings, it should include at least the balance sheet, the profit and loss account and the notes to the financial statements. The Member States may require business entities other than small businesses to include other statements in the annual financial statements in addition to the above-mentioned documents. The Member States should ensure that undertakings publish within a reasonable period of time, which should exceed 12 months after the balance sheet date, the duly approved annual financial statements and the management report, together with the opinion submitted by the statutory auditor or audit firm, in accordance with law applicable in a given member state.
The EU lawmakers require that publically listed undertakings prepare consolidated financial statements in accordance with unified global standards, i.e. international financial reporting standards. The standards have been drawn up by an independent organisation - International Accounting Standards Board and then adopted by the European Union.
It is also possible to benefit from exemptions and simplified rules of financial reporting, however, not all member states use them. In accordance with the directive, the member states have the right to exempt small entities from the obligation to publish the profit and loss account and the report on operations. They can also allow medium-sized entities to publish an abridged balance sheet and summary additional information to the financial statement. Micro-entities may be exempted from the obligation to present their accrued liabilities as well as accrued and deferred income and charges, or the obligation to publish annual financial statements. What is important, such simplified rules do not apply to companies which issue publicly traded securities, banks and insurance institutions. As stipulated in the annex no. 1 to the directive, in case of Poland, the rules stipulated therein apply to statutory, implementing and administrative regulations with regard to joint-stock companies, limited liability companies, joint-stock partnerships, unlimited partnership and general partnership.

Kamil Kłopocki - lawyer


New act on mutual recognition of decision within the EU

The act of 5 December 2014 amending the Code of civil procedure and acts on court fees in civil law disputes (Journal of Laws of 2015, item 2) changes the approach to decisions issued in EU member states.
The said act introduces a whole new book to the Code on civil procedure. The new book treats of recognition and execution in Poland of settlements, court decisions and official documents from EU member states. According to the new regulation, the so-called system of automatic enforceability will apply to any decisions granted in other member states. This means that they can serve as grounds for filing for an enforcement proceeding. The practice so far was that a creditor who wanted to conduct an enforcement proceeding in a member state other that the one where the decision was granted had to apply to the court in such a country to recognise a claim and append an enforceability clause. In the light of the new regulation amending the Code of civil procedure, decisions taken within the EC will automatically be treated as enforceable in Poland.
The act of 5 December 2014 harmonises the Polish legislation with the regulations of the European Council and the Council with respect to jurisdiction and recognition of court decisions and their enforcement in civil and commercial disputes as well as mutual recognition of protection measures in civil cases. The provisions included in the said regulations work both ways. This means that decisions granted by Poland will be enforceable in other member states without the need to apply for enforcement clause.
The amendment came into effect on 10 January 2015.

Paulina Szymańska, lawyer

 

New powers of registry courts 

On 1 January 2015, the act of 28 November 2014 amending the act on the National Court Register and other selected acts came into effect. The new regulation grants registry courts new powers which are to ensure that proceedings against inactive business entities and entities which fail to fulfil their informational obligations are conducted in a faster and more efficient way.
We should focus on two aspects of the amendment in particular. First of all, the act releases the court form the peremptory obligation to conduct a proceeding to force a business entity to file documents with the register, if the court, on the basis of the data in the register, decides that such a proceeding will be in vain. Furthermore, in cases when it is necessary from the point of view of security of trading, the court will have the right to strike off false data or enter correct data to the register, if appropriate documents are already lodged in the register and such data is essential, without making a prior call to the entity in question to file a motion to record such changes.
Furthermore, the new regulations provide registry courts with powers to institute, ex officio, a proceeding aimed at dissolution of a given entity without a liquidation proceeding and, in consequence, striking it off the register. The act precisely determines the circumstances in which it is possible. The premises for instituting such a proceeding include a dismissal of a motion to institute a liquidation proceeding or its discontinuance if the assets of an insolvent debtor are insufficient to cover the costs of the proceeding, withdrawal from or discontinuance of a compulsory proceeding and, what is more important from the point of view of everyday business dealings, failure to provide annual financial statements for two consecutive financial years despite having been requested to do so by the court or, despite having been summoned by the court twice, failure to make an application to enter changes or disclose in the register certain documents as required by law. However, we should bear in mind that in the course of such a proceeding, the chances of a business entity are not completely lost. The court is under an obligation to verify whether such an entity indeed has no negotiable assets and does not conduct any business activity. If such is the case, the proceeding is discontinued.
Any assets left by an entity struck off the register by the court become the property of the state treasury which, however, will be liable for any debts of such an entity only up to the value of the assets. Furthermore, any debt recovery will be limited to the period of one year from the moment of taking over the assets by the state treasury. The fact that at the moment of instituting a proceeding to dissolve a business entity the court will need to publish such information in the Court and Commercial Gazette might be helpful to creditors of such an entity. The court will also have the right to select for this purpose any other daily newspaper, magazine or any other manner which the court considers useful.
The amendment aims at introducing more order to the National Court Register, which now includes the so-called “dead businesses”, i.e. entities which have not conducted their business activity for a very long time and do not possess any assets.


Rafał Sałata, lawyer


Niniejszy newsletter ma wyłącznie charakter informacyjny i w żadnym wypadku nie może być traktowany jako porada prawna. Kancelaria nie ponosi odpowiedzialności za jakiekolwiek błędy i nieścisłości zawarte w informacjach przekazywanych w newsletterze.
   

Previous issues