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Changes of Commercial Companies Code with respect to board of limited liability company

The year 2022 brought numerous changes to the Commercial Companies Code. Below are only selected ones concerning limited liability companies and theirs management boards.

  • Minutes of all resolutions of the management board shall be kept, including those adopted by circulation. Minutes shall contain: agenda, names and surnames of members of the management board present, number of votes cast for individual resolutions, marking of a dissenting opinion submitted by a member of the management board together with its motives/justification; minutes shall be signed by at least 1 member of the management board chairing the meeting or ordering the vote, unless the articles of association or the regulations of the management board provide otherwise.
  • Duty to exercise due diligence and maintain loyalty towards the company by members of the management board. Obligation to keep secrets of the company confidential also after the expiry of the mandate of a member of the management board. Duty of loyalty and explanations by former members of the management board (possible obligation of former members of the management board to provide explanations regarding the preparation of financial statements).
  • Introduction of uniform rules for counting the terms of office of members of the management board. As part of the amendment, a sentence was added to the provisions on term of office, according to which a term of office is calculated in full financial years, unless the articles of association provide otherwise, i.e. it will start on January 1 of a given year, even if the appointment takes place during the previous year, and will end on December 31 of the relevant (last) year. ATTENTION: There is a transitional provision that determines the application of the amended provisions also to existing mandates.
  • Strengthening the supervisory board’s powers of control over management including in particular: examining all company documents, reviewing the company’s assets and requesting the management board to prepare or provide any information, documents, reports or explanations concerning the company, in particular its activities or assets, including subsidiaries and affiliated companies. Possibility of employing an external expert (adviser) by the supervisory board, with the reservation that in the case of a limited liability company, the articles of association shall provide for the possibility of engaging an expert.
  • Obligation of the management board to regularly report to the supervisory board, without any additional request. Failure to provide specific information, documents, reports, explanations or obstructing access to them will be an offense prosecuted ex officio, punishable by a fine or a penalty of restriction of liberty.
  • The catalogue of crimes has been extended by offenses specified in art. 587(1) – 587(2) of the Commercial Companies Code as well as art. 228-231 of the Penal Code, for which a conviction by a final judgment deprives the convicted of the possibility of performing the function of a member of the management board, supervisory board, audit committee, liquidator, commercial proxy.

The new “business judgment rule“, which assumes that a management board member does not breach the duty to exercise due diligence resulting from the professional nature of his/her activity, if, acting in a manner loyal to the company, he/she acts within the limits of justified economic risk, including on the basis of information, analyses and opinions that should be taken into account in the circumstances of making a careful assessment.

Monika Chojnacka
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