Dear Readers,

 

We wish to present you the February issue of the WBW Weremczuk Bobel & Partners newsletter.

First of all, we would like to present you the assumptions to the new act - the Law on Entrepreneurs, which is one of the foundations of the so-called Business Constitution soon to substitute the act on freedom of economic activity.

We would also like to recommend you the article on the changes to the process of incorporation of a limited liability company via electronic means of communication.

Furthermore, we also provide an overview of the proposed amendment to the code of commercial companies and partnerships within the scope of dematerialisation of stocks in joint-stock companies.

We wish you a pleasant reading!

WBW Team

The package of amendments for the New Year

 

On 23 January this year, the Sejm received from the government the bill amending the Code of Civil Procedure, the Code of Commercial Companies and Partnerships and the National Court Register Act.   The amendment relates to the abolishment of the possibility to use an ordinary electronic signature in incorporating limited liability companies in S-24 mode and, this way, increasing the level of safety of legal transactions.

 

Since 1 January 2012, it has been possible to incorporate a limited liability company with the use of a template available in the ICT system (S-24  mode) and use an ordinary electronic signature to sign the articles of association and to file a motion for an entry in the National Court Register. The requirements regarding the ordinary electronic signature had been defined in the executive regulations issued by the Minister of Justice (apart from the ordinary signature, it is also possible to use the qualified electronic signature, formerly referred to as the “safe electronic signature verified with the use of valid qualification certificate” and a signature confirmed by ePUAP safe profile). This solution became very popular as the number of limited liability companies incorporated in S-24 mode has been constantly increasing and today they comprise half of all newly established limited liability companies. In total, during the period between January 2012 and November 2015, 36 678 limited liability companies were incorporated in S-24 mode.

The great interest among entrepreneurs was mostly due to user-friendly simple solutions with regard to electronic signature required in order to sign the articles of association and file a motion with the National Court Register. All it takes is to start an account in the ICT system used for servising the process of company incorporation and to activate the signature in the system. The system does not require much information (full name, PESEL number and correspondence address).

Due to safety reasons and the desire to eliminate solutions which may lead to malpractice, the authors of the amendment suggest ridding of the ordinary electronic signature in the process of incorporating a limited liability company and introducing the possibility to use only the qualified electronic signature or a signature confirmed by ePUAP safe profile (electronic platform for public administration services). Such a solution will be consistent with solutions which apply to general partnership and limited partnership incorporated in the S-24 system.

Excluding the possibility to use the “ordinary” electronic signature in incorporating a limited liability company in S-24 mode requires amending 3 acts, i.e. the Code of Commercial Companies and Partnerships, the Code of Civil Procedure and the National Court Register Act of 20 August 1997.

Marta Szurek

Lawyer

 

“Business Constitution” partly put up for public consultations

According to the information provided by the Ministry of Development, in the first half of February 2017 the most important act of the entire legislative package of the so-called Business Constitution - the Law on Entrepreneurs was put up for public consultations.  The new act is to substitute the Act on Freedom of Economic Activity, which has been in effect since 2004. Apart form general rules which officials will have to take into account when resolving matters which regard entrepreneurs, the said act also provides for a number of exact solutions which are aimed at making freedom of business activity reality and will bring entrepreneurs actal financial gains.
The solutions provided for in the act include:
• Business activity on a small scale (monthly revenue of up to 50% of minimum wage) will not be classified as business activity. This means that a person who engages e.g. in occasional trade or gives private lessons from time to time will not have to register in the office and pay monthly contributions.  
• Novice entrepreneurs will be exempted from the obligation to pay social security contributions during the first 6 moths of conducting business activity.  Then, as it is the case now, they will have the right to pay lower social security contributions for two years. The change will affect over 200 000 people who take their first steos in business every year.
• Simultaneously, but outside the “Business Constitution”, the Ministry of Development is working on a solution thanks to which small companies which earn modest revenue would pay lower contributions.  The legislative package is to be presented this quarter.  
• The document also proposes the introduction of an institution of the Business Ombudsman to protect entrepreneurs’ rights. At his or her request, offices would have to issue a clarification of most complex regulations. The ombudsman will also be able to stay any inspection if there are reasonable grounds to believe that officials violated the law. The duties of the ombudsman will also include fostering mediation between entrepreneurs and administrative bodies and giving opinion on drat regulations regarding entrepreneurs at each step of the legislative process. 
• Appointing a Joint Committee of the Government and Entrepreneurs. The role of the Committee will be to identify and discuss problems faced by Polish entrepreneurs, e.g. in their dealings with public administration, cooperate in making new legal acts which are vital for business activity, and work towards mutually beneficial solutions.  The competences of the Committee will not overlap with those of the Social Dialogue Committee. 
• Upon the consent of an entrepreneur, certain administrative matters can be handled vie telephone, e-mail or other means of communication.
• Offices will issue “clarifications to regulations” written in plain language. If an entrepreneurs follows the, he or she will be protected e.g. during an inspection.
• In their contacts with offices, entrepreneurs will only use NIP number [tax identification number], which will automatically become their identification number in the REGON statistical register. REGON [business statistical number] will be gradually withdrawn. This process will be spread over time.
• The Business Constitution also includes basic rules of creating commercial law. They will put a limit on e.g. the charges and burdens put on entrepreneurs in new regulations.
 
The Law on Entrepreneurs is expected to come into effect in September 2017.

Filip Zelek
Lawyer
 

Draft amendment to the Code of Commercial Companies and Partnerships - the end of shares in the hard copy form?

On 27 January 201 the Ministry of Justice presented a draft amendment to the Code of Commercial Companies and Partnerships introducing the obligation to dematerialise stocks, i.e. change a hard copy form into a record in an ICT system. At the same time, the provisions of the Code of Commercial Companies and Partnerships would no longer mention the “traditional” form of stocks. According to the justification to the draft amendment, the proposed change is to facilitate the process of trading in stocks and shares and to streamline the operations of joint-stock companies. 
Abolishing the hard copy form creates the need for a system in which dematerialised stocks will be registered. The Draft amendment provides for creating a register of stockholders maintained by entities authorised to operate securities accounts (e.g. brokerage houses). It will be up to the general meeting of a company to select an entity to keep the account of the company. The register will also include stockholders’ particulars such as company name, name, address, official seat or place of residence. According to the draft, as a result of introducing the obligation the keep a register of stockholders, the provisions of the Code of Commercial Companies and Partnerships regarding such matters as maintaining the stock ledger will be repealed.
At present, the Code of Commercial Companies and Partnerships states that only public companies are required to have their stocks in a dematerialised form, and this only applies to stocks which are publicly traded. The Ministry of Finance emphasises that the present form of bearer stocks makes it impossible to identify a person entitled to dividend on such stocks and, therefore, impedes the flow of tax information regarding such stockholders. The regulations proposed in the draft amendment also aim at combating money laundering. The initiators of this amendment point out that similar mechanisms have already been implemented in other European countries (UK, the Czech Republic, Luxemburg, Switzerland and Belgium).
Stock dematerialisation will also apply to other participation titles, e.g. Promoter certificates, utility certificates or subion warrants. The division into bearer shares and registered stocks will be kept, however, it will no longer have any practical application. The new regulation will cause that every sock will, in fact, be a registered stock, which makes it possible to identify the actual stockholder. 
The benefits of the changes proposed by the Ministry of Justice include: increasing certainty of relationships within the company by means of identification of its stockholders, abolishing the procedures regarding reconstruction, redemption, issuance etc. of stocks in a hard copy form, as well as streamlining communication with stockholders by electronic means of communication. 
 
Michał Piekarz
Lawyer
This Newsletter is for general informational purposes only. It is not intended and shall not be treated as professional advice. You should contact your attorney to obtain advice with respect to any particular issue or problem.
   

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