By Article 3(2) Act of 4 November 2022 amending the National Court Register Act, the Civil Procedure Code Act and the Commercial Companies Code Act (Journal of Laws of 2022, item 2436) to the Commercial Companies Code has been added Article 1611 k.s.h.
introducing the possibility of making contributions to cover the share capital of the company from the o.o. in the organization over the Internet.
The basis for this change is the need to implement the Polish legal order Directive 2017/1132 of 14 June 2017 on certain aspects of company law (Official Journal of the European Union L (2017), No. 169, p. 46 )[1]. This provision entered into force on the day 15 December 2022
As per content Article 1611 k.s.h.
The company in the organization allows settlement of the interest payments by the execution of a payment transaction using an Internet connection to a payment account operated by a bank providing services in the European Union or in the country - the parties to the agreement on the European Economic Area, and providing proof of such transaction using the Internet connection.
This provision refers to a bank account within the meaning of Article 5(1) and Article 49 Act on 29 August 1997 Bank law or other equivalent account held by a foreign bank or other financial institution.
The contribution to cover the share capital resulting from the company’s contract is a mandatory aspect of the company’s formation linked to the moment it acquired legal personality. Subject to Article 163(2) k.s.h.
A limited liability company is required to be established: (...) 2) contributions by shareholders to cover all share capital and, in the event of participation at a price higher than the nominal value, to the surplus, including Article 158(11); (…).
The Commercial Companies Code adopts the principle of making full contributions to cover the shares covered before the company is registered, including agio (if any).
The regulation ordering the total contribution to share capital is reinforced by a code provision whereby, in order to register the company, all members of its board of directors declare that contributions have been made in full by all shareholders (Article 167(1)(2) k.s.h.).
It should be remembered that, unlike personal companies, in Immanent companies, the existence of a kind of property substrate is an element of their operation.
From the above, there is a statutory regulation requiring members of the company's board (essentially – in full) to ensure that the shareholders have contributed certain economic values (in the form of cash contributions or aports) for this purpose.[2].
In recent years, there has been a strong liberalisation of the approach of registered courts to registration of companies from the KRS. The courts no longer require any confirmation of the actual contribution to share capital in the form of a source document (e.g. a bank confirmation of the execution of the transfer or printing of KP). However, the formal obligations resulting from the provisions of k.s.h. continue to apply.
Since, therefore, in order to register a limited liability company, it is necessary to make a contribution to cover the share capital, the partners must have a real possibility to fund that capital. In the case of cash, generally there are two the possibility of contributions from partners:
Contribution by a shareholder in cash to the company's cash register in the organisation;
Payment of funds by the partner to the bank account of the company in the organization.
If the variant first does not appear to be too problematic, otherwise the issue of bank transfers to cover share capital is presented. In practice, there have been many instances where banks or financial institutions have requested confirmation of the registration of the company in the KRS in order to create a bank account.
Article 11(1) k.s.h., according to which capital companies in an organisation may acquire rights on their own behalf, including property ownership and other rights in kind, undertake obligations, sue and be sued.
The need to provide shareholders with the possibility to contribute via a bank account was reflected in the justification for the government draft law amending the National Court Register Act and some other laws (Print No. 2537), where as regards the added provision Article 1611 k.s.h. indicated:
In practice, this provision will involve the creation by a limited liability company in the organisation of an account to which contributions to share capital may be made. It should be borne in mind that the provision does not impose such an obligation in any case because of the need to take account of the consent of the shareholders as to the different way in which contributions to share capital are made.
The added provision indirectly also counters situations in which financial institutions request confirmation of the company's registration of limited liability companies in organisations wishing to create an account in those institutions. These practices made it difficult to create such a company.
Article 1611 k.s.h.
therefore requires the company in the organisation to allow shareholders to settle a payment for shares by executing a payment transaction using an Internet connection to a payment account operated by a bank providing services to the European Union or to a State party to an agreement on the European Economic Area, and to provide proof of such a transaction using an Internet connection.
Implementation of this obligation in practice will therefore require the company to enter into a bank account agreement with a bank providing services in the EU or an EEA State, if at least one the shareholders holding the shares wish to contribute to the shares through a bank account.
Concerning the introduced regulation Article 1611 k.s.h. the representatives of the doctrine rightly raised their objections, pointing above all to the fact that, despite the legitimate intentions of the implementation of the change, the provision Article 1611 k.s.h.
does not continue to imply on the part of a financial institution (bank) a binding legal obligation to set up a bank account for the company in the organisation or any consequences if the bank does not comply with the provisions.
The structure of the provision indicates that it is a company in the organization and not a bank to be made available Article 1611 k.s.h[3].
From a systemic point of view, the entry into force of the provision cited above Article 1611 k.s.h did not lead to the elimination of problems related to the possibility of establishing a bank account by the company from the o.o. in the organisation.
[1] According to Article 13g(6) Member States shall ensure that, where a share capital contribution is required under the company formation procedure, such payment can be made online in accordance with Article 13e to the bank account of a bank established in the Union. Member States shall also ensure that proof of such payments can also be provided online. In turn, according to Article 13e Directive, Where the completion of the procedure laid down in this Chapter requires payment, Member States shall ensure that it can be made through a publicly available online payment service which can be used for cross-border payments to identify the person who made the payment and offered by a financial institution or payment service provider established in a Member State.
[2] The importance of the declaration of full board of directors of the company in the organisation emphasizes the regulations Article 291(587) k.s.h. establishing civil liability and criminal liability of board members, respectively.
According to Article 291 k.s.h., If the members of the board intentionally or negligently provided false data in the statement referred to in Article 167(1)(2) or Article 262(2)(3), are jointly and severally liable to the creditors of the company by three years from the date of registration of the company or registration of the share capital increase.
In turn, according to Article 587 k.s.h.:
section 1. Those who, in the performance of the duties listed in Titles III and IV, declare false data or present it to the company's authorities, to the state authorities or to the person appointed for review shall be subject to fines, imprisonment or imprisonment for up to years. 2.
section 2. If the perpetrator acts unintentionally, he is subject to fines, imprisonment or imprisonment for a year.
[3] Yes M. Chomiuk [in:] Commercial Companies Code. Comment. ed. Jara 2024, Edition 5, Legalis; also R. Pabis [in:] Commercial Companies Code. Comment. ed. J. Bieniak 2024, Edition 9, Legalis.