The government adopted a draft amendment to the Commercial Companies Code concerning the Simple Equity Company (PSA), prepared by the Ministry of Entrepreneurship and Technology. Now the PSA project will be directed to the Sejm. Plans to enter into force PSA In the first quarter 2020
The idea of introducing a completely new, “tailored” form of capital company to the Polish legal order was controversial from the beginning. The idea came in the fall 2016 and from the beginning he was promoted as a bow towards the start-up environment. Although the draft novels met with broad criticism from representatives of the doctrine of commercial law, its flagship assumptions did not change revolutionaryly as a result of government consultations.
The authors of the draft amendment, as the main advantages of PSA, mention:
- • rapid electronic recording, including for non-monetary contributions;
- • work, know-how or services which may contribute to the company;
- • Minimum capital of 1 PLN;
- • there is no need for pre-registration contributions;
- • great freedom to construct the terms of the company agreement;
- • no obligation to create a supervisory board;
- • the broad use of electronic communications in resolutions, holding shareholders' meetings;
- • a simplified electronic register of shareholders allowing the use of blockchain to maintain it;
- • the possibility of simplified decommissioning.
According to the project's authors, PSA is an opportunity to strengthen the development of start-ups in Poland, increase their competitiveness and hinder the "export" of Polish ideas abroad.
What the actual effect of the amendment will be will be seen only after its entry into force, but already based on the analysis of the proposed regulations, several characteristics of PSA seem to contradict the assumptions of the authors of the project.
Over 130 articles or less 30?
Representatives of the team working on the amendment from the beginning stressed that they were mainly based on the solutions adopted in French law with the addition of solutions found in Anglo-Saxon legislation. It is worth pointing out at this point that the most popular form of company in France is the société par actions simplifiée (SAS in short).
SAS is valued in France in particular because of its far-reaching flexibility and deformalisation. However, this has not always been the case. SAS was introduced to the French code de commerce In 1994 and by first 5 years were not available to all parties.
Only from 1999 The French legislature opened SAS to all natural and legal persons, which translated into popularising this legal form of the company. SAS has therefore been operating in France since 25 years and is the most preferred legal form of the company by the French.
However, comparing the proposed provisions on PSA to the provisions governing the functioning of SAS shows that the Polish legislature went a completely different way than French. First, The volume of adjustment is evident.
Polish standardization is very kapuistic, as evidenced by the multiplicity of regulations (the project provides for an introduction to k.s.h. Article 300 1 - 300,133, so 133 new articles). Meanwhile, the regulation contained in code de commerce comes down to 26 Articles L.227-1 to L.227-20 1 and Article. L.244-1 to L.244-4).
An additional obstacle is the legislative technique used, consisting of a multitude of references to other provisions of k.s.h. This undoubtedly reduces the transparency of regulations and may even be incomprehensible to the target group of beneficiaries of the amendment.
Unfortunately, the consequence of kapuistics is to reduce the flexibility of the proposed solutions. In the case of SAS, the final legal regime of the company is shaped by the provisions of the statutes and therefore prefers partners.
In the case of PSA, there are numerous imperative or semi-merative rules, such as those based on Article 299 k.s.h. a provision which treats members of the board of directors with responsibility for the company's obligations, as set out in more detail below. Consequently, the PSA may not be so attractive to the target audience.
Finally, it should be pointed out that PSA was constructed with a view to the specific industry of start-ups. Meanwhile, French practice shows that SAS is popular not only among innovative entrepreneurs, but is also widely used by SMEs or even international companies operating in various sectors of the economy.
The choice of the legal form of SAS encourages liberalism of solutions. In the case of SAS, the vast majority of legal solutions concerning the company, including its organisation and operation, are governed by the statutes agreed by the shareholders.
Personal liability of board members in a joint stock company?
The project's authors identified at the beginning of the work three The main barriers to the development of start-ups are: minimum nominal value one participation in the company of o.o. (50 PLN), the fact that silent partnerships cannot be created in the company of O.o.
and the requirement to sign notarially certified in the sale of shares. The fact is that the aforementioned problems do not concern the public limited liability company. However, during the work on the project there was a need to balance the interests of PSA contractors and employees with the individual interests of its partners.
The project critics indicated that the lack of minimum share capital and the responsibility of board members for the company's obligations would in particular ensure that creditors of such a company would not have any collateral for their claims.
The solution to this problem, according to the project promoters, was to be the institution not previously in the k.s.h. of the solvency test, which would require the board to examine each payment made to shareholders or as a result of the payment within a year, the company would not lose its ability to meet the required obligations.
This solution was widely criticized. In the end, the authors of the novel abandoned the solvency tests present in previous PSA projects for a solution based on Article 299 k.s.h., which only applies to limited liability companies and does not have its equivalent among the provisions relating to public limited liability companies.
As planned Article 300 131 , members of the board of directors (possibly board of directors) will be jointly and severally responsible for the obligations of PSA if execution against the company proves unsuccessful.
A member of the Management Board may be released from such responsibility if it demonstrates that a bankruptcy application has been filed in due time, etc. These rules shall be without prejudice to the provisions laying down further the responsibilities of the members of the Management Board.
In order to justify the application of a specific solution, either for the company with the o.o., the project promoters indicated that this was due to the assumption that the PSA, unlike the joint stock company, would be a closed company in which the founders would have considerable freedom to form the company's contract.
This translation should be assessed as systematically inconsistent.
Chance or failure?
The answer to whether PSA was really needed in Poland will be the practice. It should be remembered that even in France, where SAS was successful, by first 5 Only a small percentage of entrepreneurs decided to operate in this legal form.
It all depends on whether the legislator will closely follow the development of practices and case law) in this respect and whether he will be able to react and adjust the rules accordingly.
Undoubtedly, the introduction of PSA to the Polish legal order will be the largest noveum of recent years, and as such it will require careful monitoring of the impact of regulations on economic activity in our country.
source: https://www.forbes.pl/opinie/prosta-spolka-akcyjna-ale-czy-na-pewno-prosta-i-czy-akcyjna/gr2w08s
Author:
Andrzej Dmowski
Lawyer and Doctor of Legal Sciences of the University of Warsaw. From 2011 one from Corporate Management Partners Russell Bedford Poland. Previously on the BDO advisory network, as well as Deloitte & Touche. Author of the book “Transfer Prices”, co-author of the commentary “The Corporate Income Tax Act”, author of many publications on tax law.