As of 1 October 2018, companies will no longer prepare paper financial statements. After more than six months of implementation of the new regulations, we can make an initial assessment of their application in practice.
At the beginning of October 2018, some provisions of the Act of 26 January 2018 Amending the National Court Register Act and Certain Other Acts entered into force.
We have already written about this amending act on our portal numerous times (including here).
How it was until now
As of 15 March 2018, new rules imposing the manner of submitting financial statements to the registry court entered into force. The act introduced the requirement to submit such documents electronically, at the same time requiring those documents to be signed with a qualified electronic signature or a signature confirmed by a trusted ePUAP (Electronic Platform of Public Administration Services) profile by at least one natural person holding a PESEL number, entered in the National Court Register as a management board member, a partner authorised to represent a partnership, a liquidator or a trustee.
After a few months of these regulations being in place, we should state that the fears commonly expressed about the impact of the new regulations on the ability of company managers to comply with the statutory obligations concerning the publication of financial documents were not exaggerated. We have also voiced these fears on this portal.
With regard to the requirement to sign the documents electronically, some doubts arose not only of the legal nature (e.g. the obligation for management board members to hold a PESEL number or how newly appointed management board members fulfil this obligation), but also of a technical nature. The structure of the system for electronic submission of documents is non-intuitive and error-prone. The system does not come in an English version either, even though foreign board members are formally forced to operate the system personally.
How it is now
At the beginning of October 2018, further provisions of the amending act entered into force. From the point of view of the procedure for preparation, approval and submission of financial documents to the registry court or directly to the Financial Documents Repository, significant changes cover two issues.
First, as of 1 October 2018, financial statements must be prepared in an electronic format and should bear a qualified electronic signature or a signature confirmed by a trusted ePUAP profile by the person preparing the report and by the “unit manager,” i.e. most often by the company’s management board.
This requirement applies respectively to preparation of the entity’s business report.
This means that all individuals obliged under the Accounting Act to sign these documents, including all members of the company’s management board, must, at least at the time of signing the documents, possess one of the tools needed for the electronic signing of documents.
Second, taxpayers figuring in the Commercial Register of the National Court Register are no longer obliged to send their approved financial statements, the audit report and the resolution on approval of the financial statements to the tax office.
Assessing the results of implementation of the new regulations
Undoubtedly, the regulations adopted in January 2018 fit into a broader trend of digitalisation of citizen’s relations, in this case mainly companies and partnerships, with public administration bodies, and extension of the scope of data available via online platforms.
It is good that financial documents are submitted in electronic form and not in paper form. It is good that to a certain extent—this applies only to documents sent by way of free and automatic applications, which in practice are not available to a number of entities with foreigners on their management board—the purely technical action of noting the financial documents submitted by the company to the Commercial Register no longer requires the physical activity of the registry courts. Even without this, those courts are flooded with applications, often of a purely technical nature. It is good that financial documents are available in the same form for all interested parties. Finally, it is good that the obligation to submit the same documents to two different authorities—the registry court and the tax office—has been abolished.
But why are those solutions not based on solutions proven in other jurisdictions, which focus on simplicity and intuitiveness of use—on the part of both the applicant and the reviewer of the content? It is worth looking, for example, at solutions used in England and Wales, concerning the local register of companies, i.e. Companies House. Why are additional, unjustified formal and technical obligations imposed on businesses: the obligation to have electronic signatures and, in principle, personal operation of electronic systems by the management board? Why does the law created for businesses in so many aspects ignore the reality in which these businesses operate?
The very fact of digitalisation of the issues discussed here is by all means positive, and the solutions introduced this year complement in a natural way the already implemented universal remote access to data entered in the National Court Register and land and mortgage registers. But further implementation of IT solutions should be more deliberate. This is important, as starting from 1 March 2020, all applications for entry in the Commercial Register of the National Court Register are to be submitted in electronic form only.
Until then, it would be worthwhile to reform the unfortunate and hampering regulations, as well as to thoroughly rethink the design of the ICT system which will be used to operate the system. After all, digitalisation should generate real benefits for all trading participants: greater transparency but also ease of use, and abolish—not create—unnecessary hindrances for businesses.
Maciej Szewczyk, attorney-at-law, M&A and Corporate practice, Wardyński & Partners