The revised Commercial Companies Code is waiting for the President's signature. After the amendments have been introduced, the partners of the O.O. companies will be given the opportunity to participate in the meeting of shareholders by electronic means of communication.
Adapting legal reality to a changing digital environment is a challenge of the 21st century. Allowing partners to communicate in companies with Messenger or Skype will significantly improve their work.
What's new?
Newly added Amending Act Article 2341(1) KSH allows the conclusion in the contract of the company of provisions allowing participation in the meeting of shareholders by means of electronic communication.
Resolutions taken at the electronic meeting of partners will have to be included in the book of protocols in the form of transcriptions of the electronic meeting of partners
The legislator adopted a model that indicates only an open, sample catalogue of electronic means of communication (provided by the legislator’s use of the term ‘in particular’).
But does this mean that soon the partners of the Polish limited liability company. will be able to attend the meeting using Skype or WhatsApp? But perhaps the popularity of entrepreneurs will be gained by a gathering of partners in the form of a group discussion on Messenger?
Telecollection
first from the examples of electronic communications listed by the legislator is a real-time transmission of the meeting of shareholders. In the explanatory memorandum of the draft meeting, such a project promoter called gratefully the ‘telecast’, indicating that it may consist in transmitting electronically the meeting held at the place specified in the company's contract to other places where the partners are gathered.
According to the justification for the project, a place other than the place of assembly (seat) and where some of the partners have gathered must be indicated in advance by the company.
With the entry into force of the new regulations, nothing stands in the way of the meetings of partners being conducted in the form of an online stream (on-line broadcasts), in two or more than one parallel location.
It is important that at least one of which it was located in the seat of a company or other place in the Republic, to which all the partners will consent.
Videoconferencing, or bilateral real-time communication
Another of the examples mentioned by the legislator is the two-way communication in real time, in which partners may speak during the meeting of partners, staying in a place different from the meeting of partners.
Such a form, called videoconferencing, will be any assembly conducted using such software that will provide real-time audio and video transmission, except that in the case of videoconferencing, a partner will be able to attend a meeting of partners from anywhere.
However, the participation in the meeting of shareholders in videoconferencing form, as in the case of telegathering, requires that at a certain location the physical manager of the meeting of partners, together with the protocolant and possible bodies of the company, must reside.
Participation in the meeting by the app on the phone
Theoretically, nothing stands in the way of attending a meeting of partners using applications such as Skype or WhatsApp, or even Messenger.
Participation in the assembly and exercise of voting rights by means of an application, in practice depends on the infrastructure of a particular electronic means of communication. Devices and applications should be able to transmit at least sound, preferably sound and image.
In the case of image transmission, identification should not be a major problem, although the matter may be a bit complicated when transmitting the sound itself. However, most phones and personal computers (especially laptops) are currently equipped with audio and video recording devices.
A good practice in this area can be the introduction of internal electronic voting systems enabling partners to log into an individual account using a login or password and then vote. Relevant provisions on how to proceed in e-collection should be included in the articles of association.
Special attention should therefore be paid to the practical application of solutions that do not leave much to be desired in terms of the identification of partners and the security of communication.
E-collection will not reduce obligations in reality
However, the new regulations do not modify reporting obligations and the electronic minutes of the meeting of shareholders will require appropriate transcription to obtain a material medium for resolutions.
Resolutions taken at the electronic meeting of partners will have to be included in the book of protocols in the form of electronic transcriptions of the meeting of partners. At the same time, the transcript of the minutes attached to the book should be accompanied by evidence of the convening of the meeting of partners by the board and the audio-video recording of the meeting of partners held.
Brave digitization better than lack
However, a modest word of praise should be given to legislators. Finally, in response to technological progress and the pressures of entrepreneurs associated with it, it introduces a slightly more adaptable solution to the changing reality, offering many communication tools and mobile facilitations. Although legal digitization takes place with some delay and with noticeable burden, it is better than none.
Author: Michał Skwarek - a solicitor's application in the legal department Russell Bedford Poland. Graduated from the Faculty of Law and Administration of the University of Warsaw.