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Anti-crisis shield – draft amendment to the commercial companies code

To meet the needs of shareholders/partners and company governing bodies, we offer the following solutions to minimize difficulties resulting from the state of epidemic along with a summary of proposed amendments to the Commercial Companies Code, i.e. the so-called “anti-crisis shield”.

Polish government is currently working on the so-called “anti-crisis shield” to prevent the negative effects of the pandemic. The project includes, amongst others, amendments to the Commercial Companies Code. Below we present the most important assumptions of the proposed changes.

Management board

So far, management board was entitled to adopt resolutions through means of direct distant communication or in writing, only if articles of association or statutes of a company expressly provided for such a possibility. In the absence of such provisions, members of management board were obliged to adopt resolutions at meetings, which they were obliged to physically attend.

The draft amendment “reverses” the abovementioned rule. This means that, unless provided otherwise in articles of association or statutes of a company, management board members will be entitled to:

  • participate in management board meetings by means of direct distant communication;
  • adopt resolutions in writing or through means of direct distant communication;
  • adopt resolutions of the management board by casting their votes in writing through another member of the management board.

The above rights shall be given by virtue of law and it will no longer be necessary to include them in articles of association or statutes of a company.

Supervisory board

Similarly, supervisory board is entitled to adopt resolutions in writing or through means of direct distant communication only if articles of association or statutes of a company provide for such a possibility.

According to the draft amendment, unless provided otherwise in articles of association or statutes of a company, members of supervisory board will be entitled to:

  • participate in supervisory board meetings through means of direct distant communication;
  • adopt resolutions of the supervisory board by casting their votes in writing through another member of the supervisory board (however, such voting may not concern matters included in the agenda during a supervisory board meeting);
  • adopt resolutions in writing or through means of direct distant communication (such resolutions shall be valid if all members of the board have been notified of the content of the draft resolution and at least half of the board members have participated in adoption of the resolution).

As in the case of management board members, the above rights shall be given by virtue of law and it will no longer be necessary to include them in articles of association or statutes of a company.

Notwithstanding the foregoing, the draft amendment does not assume any changes in the rules of holding shareholders’ meetings or general meetings. Thus, it will only be possible to hold a shareholders’ meeting or general meeting using means of electronic communication if articles of association or a company’s statutes provide for such a possibility. The only exception is the possibility of adopting resolutions without holding a meeting of shareholders of a limited liability company. However, this exception does not apply to a joint stock company.

We remain at your disposal in case of any questions related to the impact of the coronavirus pandemic on functioning of companies.

Contact us:

Rafał Rapala
Attorney at Law, Senior Partner, Head of Corporate Law Practice and Transaction Practice
M: +48 608 444 650
E: r.rapala@kochanski.pl

 

Kacper Czubacki
Advocate, Senior Associate in Corporate Law Practice and Transaction Practice
M: +48 795 152 562
E: k.czubacki@kochanski.pl


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