What kind of companies one can incorporate in Poland?
Who can represent them?
This website is intended to provide you with basic information on Polish company law. Although it is not very different from German or French company law, there are issues that are provided for in a different way than in those countries. Also, Polish company law is completely different than English company law. Therefore, before incorporating a company in Poland it is good to obtain at least basic information on incorporation, functioning and winding up of Polish companies.
For entities executing contracts with Polish companies its necessary to know who can represent such companies. For instance, Polish rules concerning executing contracts in the name and on behalf of a company are different than those provided for by English law.
Below you will find basic information on each type of partnership and company that can be incorporated in Poland.
1. Spolka cywilna ("civil law partnership")
Characteristics of spolka cywilna are very similar to those of the English partnership. Partners execute a contract, in which they undertake to attempt to achieve a common economic objective by acting in a manner indicated in the contract, inter alia by making contributions. As a contribution is considered contributing property or other rights into the partnership as well as providing services to it
Each of the partners is entitled and obligated to manage the partnership’s business. Each of them is also entitled to execute contracts in the name and on behalf of the partnership, unless otherwise provided for in the partnership contract or in a partners’ resolution.
Another important feature of spolka cywilna is that all partners are jointly and severally liable for the partnership’s obligations. Their liability is unlimited.
It is the only partnership that is regulated by the Civil Code, all the other partnerships are provided for by the Code of Commercial Companies.
2. Spolka jawna (“registered partnership”)
The definition of spolka jawna contained in the Code of Commercial companies is rather vague. Therefore, it is best to define it by its features:
- although the Code stipulates that it is not a legal person, it provides that spolka jawna may execute contracts and take part in litigations. Therefore, it is very similar to a legal person;
- each partner is liable for the partnership’s obligations without any limitation – jointly and severally with the other partners and the partnership;
- the partnership commences to exist at the moment of its entry into the Companies’ Register;
- each partner is entitled to represent the partnership (i.a. execute contracts on its behalf), unless the partnership contract provides otherwise or court revokes his right to represent the company due to ‘important reasons’.
- the partnership contract may provide that each of the partners is entitled to transfer his rights and obligations arising from the partnership contract to a third party. In such a case he must obtain a consent of all the other partners, unless otherwise provided for in the partnership contract.
3. Spolka partnerska (“professional partnership”)
It is very similar to spolka jawna – majority of provisions concerning spolka jawna apply also to spolka partnerska and spolka komandytowa. Some of them even apply to spolka komandytowo-akcyjna.
There are three important differences:
a) only certain professionals may become partners of such a partnership (e.g. medicine doctors, architects, advocates etc.);
b) other partners are not liable for mistakes of a partner while providing his professional services; and
c) professional partnership may be managed by a management board (if the partnership contract so provides).
4. Spolka komandytowa (“limited partnership”)
This partnership is similar to English limited partnership. Liability of some of its partners is unlimited. Liability of the other partners is limited to an amount indicated in the partnership contract (‘suma komandytowa’).
It is important to note that the name of spolka komandytowa should not contain the name of any of the partners whose liability is limited. Otherwise their liability becomes unlimited. The name should include a name of at least one of the names of the partners whose liability is unlimited.
5. Spolka komandytowo-akcyjna (“partnership limited by shares”)
It is similar to spolka komandytowa. However, instead of partners whose liability is limited there are shareholders. Liability of each shareholder is limited to the amount of nominal value of his shares (the nominal value of each share is indicated in the articles of association the partnership), unless his name appears in the name of spolka komandytowo-akcyjna.
The articles of association may provide that the business of the partnership is supervised by a supervisory board.
Minimum share capital of a spolka komandytowo-akcyjna is PLN 50,000 (approximately 12,000 euro) .
6. Spolka z ograniczona odpowiedzialnoscia ("limited liability company")
It is very similar to English private company limited by shares and German Gesellschaft mit beschränkter Haftung. Shareholders incorporate such a company. It is a legal person, but does not have to meet numerous obligations that are imposed on spolka akcyjna. Therefore, it is very popular.
The only mandatory body in spolka z ograniczona odpowiedzialnoscia. is the management board. It is possible to establish a supervisory board as well, but it is mandatory only in companies that have the share capital higher than PLN 500,000 and have more than 25 shareholders.
It is worth noting that a spolka z ograniczona odpowiedzialnoscia may be incorporated by a single shareholder. However, it cannot be another spolka z ograniczona odpowiedzialnoscia.
Minimum share capital of spolka z ograniczona odpowiedzialnoscia is just PLN 5,000 (approximately 1,200 euro).
7. Spolka akcyjna ("joint-stock company")
Spolka akcyjna is similar to English public company limited by shares and German Aktiengesellschaft. It is a legal person and has to have both the management board and supervisory board.
Only companies that belong to this form of incorporation (spolka akcyjna) can be listed on the Warsaw Stock Exchange. This is because its shares are easily transferable, unlike shares in spolka z ograniczona odpowiedzialnoscia. Also, it is subject to more strict regulation by the Code of Commercial Companies.
Its minimum share capital is PLN 100,000 (approximately 24,000 euro).
Companies’ Register
All of the above-mentioned companies and partnerships (apart from spolka cywilna) have to be entered into the Companies’ Register kept by registry courts in major Polish cities. All entries are also announced in a special gazette – Monitor Sadowy i Gospodarczy.
Branch
It is worth noting that foreign companies do not have to incorporate a company in Poland in order to sell its products or provide services in Poland, they may elect to open a branch ('oddzial'). Branch is a Polish division of a foreign company. It has to have a seat in Poland and it has to be entered into the Companies’ Register. It has no separate legal personality – it is a part of the foreign company. Regulated companies usually have to obtain adequate licences in Poland (unless the foreign company is EU-based).
Freedom to provide services
EU-based companies may also provide services in Poland without incorporating a company or establishing a branch. This is a result of the implementation of one of the principles of the European Union – freedom to provide services. However, the physical involvement of the foreign company in Poland has to be limited. Otherwise it may be claimed that it has permanent establishment in Poland and is subject to taxation in Poland, it may also be forced to establish a branch in Poland.
What are the difficulties that foreign companies encounter in Poland most often?
1. Filling in forms
It may seem that filling in a form to be submitted to a registry court should be fairly easy, since thousands of companies do that. Unfortunately, this is not necessarily true. Contents of some of the boxes is still subject to disputes, even among registry courts. For instance,
certain manners of description of persons that may represent a company acceptable for the registry court in Warsaw are not accepted by the registry court in Cracow. Also, to fill in some of the boxes one must know at least basic rules of Polish companies law – sometimes they even refer to specific articles of the Code of Commercial Companies.
2. Delay in registering companies or changing their data in the register
This issues is often connected with the problem referred to in point 1. When the registry court decides that at least one of the boxes has been filled in incorrectly or a required document has not been attached it requests the company to correct its mistake. Moreover, in the case of some more important mistakes, the court may simply ignore the motion – it will consider it as not filed. This obviously causes massive delays in the registration process. Thus, it is crucial to make sure that the motion is properly filled in and all of the required documents are attached – if it is so, the registration of the company or changes to its data should normally take less than a month.
3. Drafting articles of association of a company
In England and Wales one may simply choose to apply one of the versions of articles of association contained in the Companies (Tables A to F) Regulations 1985. In Poland, every company has to draft its own articles of association. For a Polish businessmen it is not so complicated, since they may simply copy (to a certain degree) articles of association of another company. Foreign businessmen are in a less favourable position since they have to understand the articles of association before they agree to them. However, all businessmen face the same problem – how to incorporate their ideas into the articles of incorporation. Some of them may be incorporated, some of them would be effective only to a certain degree and some of them would be null and void.
4. Shareholders’ meetings
Polish law strictly regulates the way in which a shareholders’ meeting is conducted. There are also other methods of making decisions by shareholders. If the rules provided for in the Code of Commercial Companies are not obeyed , it may result in nullity of resolutions adopted by shareholders.
Despite all those drawbacks, tens of thousands of investors managed to establish companies or branches in Poland and benefit from stability and potential of Polish economy. Especially during the recent crisis, when it turned out that Polish Gross National Product was still rising, unlike GNP of all the other European countries.
Please note that the above information is very general. Since Polish law introduces many exceptions to general rules, the above statements cannot be considered as a legal advice. In order to provide such advice, a lawyer would have to thoroughly examine each case.
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