A few comments on how transcripts from Poland’s commercial register are used in commercial practice
The commercial register, as part of the National Court Register (commonly referred to by its Polish initials KRS), has been in operation for almost a dozen years. (The National Court Register Act of 20 August 1997, the legal basis under which the register functions, went into force on 1 January 2001.) But in commercial practice, there is an inadequate understanding of the consequences of disclosure or non-disclosure of certain information in the commercial register.
Scope of information disclosed in the commercial register
Under the Commercial Companies Code, the duty to submit certain information to the commercial register rests on business entities themselves. An application for entry of specific information in the register should generally be filed within 7 days after the event justifying the entry.
The “entry” in the register—a concept that covers both introduction and deletion of information—is made by the registry court, that is, the district court that maintains the particular register.
The scope of information subject to disclosure in the commercial register is defined in the KRS Act, and includes more specifically such as information as the entity’s:
- Name and legal form
- Registered office and address
- Articles of association (or statute) and amendments thereto
- Ownership structure (the shareholders of a limited-liability company with 10% or more of the share capital, the sole shareholder of a joint-stock company, etc.)
- Share capital
- Corporate authorities and their members
- Subject of business.
The duty to submit information to the National Court Register generally applies equally to all of the information indicated in the relevant laws (particularly the Commercial Companies Code, but also analogous regulations governing the establishment and operation of entities other than commercial companies that are also covered by KRS, such as associations and foundations). However, the legal nature of entries may vary with respect to particular types of information.
Legal nature of entries
Generally, entries may be divided into two categories:
- Constitutive entries, where the applicable laws (particularly the Commercial Companies Code) draw certain legal effects from the making of an entry, in the form of creation, modification or termination of a right or legal relationship
- Declarative entries, which merely report that a right or legal relationship has been created, modified or terminated in some other way.
Constitutive entries include, for example:
- Entries under which the entity obtains or loses legal personality
- Changes in the articles of association of a limited-liability company or the statute of a joint-stock company, including e.g. a change in the company’s name or “seat” (the town where the managing authority of the entity is based)
- Changes in the amount of the share capital (with certain exceptions).
Declarative entries include, for example:
- The address at which the entity operates (i.e. the specific street and building number in the town where the entity has its registered office)
- The members of the corporate authorities (e.g. the management board or supervisory board—but the rules for representation of the entity are a constitutive entry, as is the establishment of a supervisory board as such)
- Financial reports.
Under these principles, in the case of information for which the entry in the register is constitutive, failure to submit the information means that the intended legal effect does not occur (for example, when a company changes its name, the company continues to operate legally under the old name until the change is submitted to the court and the new name is entered in the register).
It is different in the case of information for which the entry in the register is declarative. Failure to disclose the information in the register generally does not render ineffective or invalid the creation, change or termination of the right or legal relationship in question, but prevents the entity entered in the register from relying on the undisclosed information as against third parties acting in good faith. This does not exclude any additional sanctions that may be imposed for failure to file the information with the register on a timely basis.
Accuracy of information disclosed in the register
The KRS Act does not provide protection to information disclosed in the commercial register comparable to the warranty of public reliance on the land and mortgage register. Thus a person acting in reliance on information disclosed in the commercial register does not enjoy the same protection afforded, for example, to a good-faith purchaser of real estate.
However the KRS Act does provide for two mechanisms protecting third parties acting in good-faith reliance on information disclosed in the commercial register: the principle of the substantive openness of entries in the register, and the principle of the reliability of the information contained in the entries.
Under the principle of substantive openness, information entered in the register or published in the judicial and economic journal Monitor Sądowy i Gospodarczy is regarded as common knowledge (KRS Act Art. 15(1)). This entails an irrebuttable presumption of universal awareness of the published entries, and in consequence no one may protect himself by claiming ignorance of the entries. The only exception to this rule concerns actions taken within 16 days after publication in the journal, in which case a third party may claim ignorance of a published entry if he proves that he could not have known of its content.
The negative aspect of the rule of substantive openness is that when information is not properly disclosed (with respect to declarative entries), the entity required to disclose the information may not rely on the information as against third parties acting in good faith.
Meanwhile, under the principle of reliability of information contained in the register, such information is subject to a presumption of accuracy. This is a rebuttable presumption, however, and generally any person may rebut the presumption by proving that the information in the register is inconsistent with the true legal status. However, the inaccuracy of the information may not be asserted by the entity itself which the information concerns, unless it complied with the obligation to apply to the registry court promptly to correct, supplement or delete the inaccurate entry.
Transcripts from the commercial register
Under the KRS Act, anyone may review the registry file of entities entered in the register and obtain transcripts from the register. Upon request, the National Court Register Information Centre issues transcripts in the traditional paper form—both “current” and “full” (as discussed below). However, it is now possible for internet users to download and print out “current” transcripts themselves, for free, via the Ministry of Justice website. Such documents have the same force as transcripts issued in the traditional form.
With respect to transcripts from the commercial register, there is a practical issue concerning the period for which a transcript continues to remain valid. Neither the KRS Act nor the executive regulations issued under the act refer to the currency or period of validity of a transcript from the register.
Under §6 of the Regulation of the Minister of Justice of 27 December 2011 on the National Court Register Information Centre, a “current” transcript displays the current content of the entries under a specific KRS number, and a “full” transcript displays all of the entries made under the KRS number from the initial entry of the entity down to the issuance of the transcript (except for entries that are not subject to disclosure). Thus the information contained in a transcript from the commercial register is current as of issuance of the transcript (indicated in the transcript down to the nearest second).
Therefore, as a rule, the concept of “period of validity” may not be used with reference to a transcript from the commercial register. The transcript itself may be said to be valid indefinitely, but this does not mean that the information contained in the transcript is also current for an unlimited time.
A few exceptions to this rule are included in specific regulations. For example, the Public Procurement Law and the Prime Minister’s regulation of 30 June 2009 on documents that a contracting authority may require of contractors provide that in certain situations a contracting authority may require a current transcript form the relevant register issued no earlier than 6 months before the deadline for filing requests to participate in a proceeding for award of a public contract.
Aside from the formal legal nature of the information disclosed in the commercial register, ready access and regular use of the information in the register clearly increases the legal security of commercial transactions. In any transaction, it should always be checked in the register, for example, who is authorised to represent the other party, or even whether the entity in question actually exists.
Determining such information using the publicly available database is not only free of charge, but also allows users to limit their business risks.
Maciej Szewczyk, Mergers & Acquisitions Practice, Wardyński & Partners