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act legal Poland recommended in The Legal 500 EMEA 2022

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We are pleased to announce that in the latest edition of The Legal 500 ranking act BSWW legal & tax was distinguished in 7 categories:

  • Construction
  • Capital Markets
  • Real Estate
  • White-Collar Crime
  • Dispute Resolution
  • Commercial, Corporate and M&A
  • Banking & Finance

Furthermore, among the recommended lawyers in this year’s edition are: Marek Wojnar, Michał Wielhorski, Jacek Bieniak, Piotr Smołuch, Piotr Wojnar, Marta Kosiedowska, Katarzyna Marzec, Magdalena Banaszczyk-Głowacka, Michał Sołtyszewski, Janusz Szeliński, Sebastian Sury, Alicja Sołtyszewska, Mateusz Prokopiuk, Piotr Pośnik, Marek Miszkiel, Giuseppe La Rosa, Dominika Michalska oraz Piotr Giżyński.

act legal Poland advises SATOIA S.A. on purchase and subsequent sale of real estate in Kąty Wrocławskie.

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act BSWW legal & tax advised its client on the purchase and subsequent sale of real estate intended for a warehousing and logistics facility in Kąty Wrocławskie, with a total area of over 8 ha.

Our team assisted the client throughout the process of purchasing and then selling the newly-acquired property to 7R Projekt 60 sp. z o.o. The scope of the law firm’s services included the preparation of transactional documentation, supporting the client with ongoing business issues, as well as negotiations and execution of the sale agreements.

The project team was made up of Marek Wojnar (Managing Partner) and Aleksandra Krzemień (Associate).

The real estate team at act BSWW legal & tax is one of the biggest among Polish law firms. Our practitioners advise on all types of real estate projects, with a strong focus on large development, retail and office projects. They act for a wide range of international, domestic and regional clients, including developers, property owners, asset managers, investors, lessors and lessees.

Get the RET right. The tax side of real estate.

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Periodic newsletter for the Real Estate sector

It is possible to categorize uncollectible receivables from any type of guarantee issued by a bank (rather than exclusively from loans) as tax-deductible expenses, according to the ruling issued on March 09, 2022 by the Supreme Administrative Court (case files no. II FSK 1553/19).

The Supreme Administrative Court noted that bad debts written off in relation to such guarantees can be recognized as tax-deductible expenses in case the guarantees referred to in article 16 section 1 item 25 c) of the CIT Act are provided not only in connection with a loan, but also for any other purpose. Based on a linguistic interpretation of that provision, the phrase “repayment of loans” refers only to “sureties” and does not apply to “guarantees.”

Repayment of debts secured with a mortgage on a real property directly to the account of the mortgage creditor is regarded as the seller’s income, according to the ruling issued on March 09, 2022 by the Provincial Administrative Court in Gdańsk (case files no. ISA/GD 1062/21).

We cannot rely on the general concept of revenue (i.e. a definite gain) in a case involving disposal for a specific fee because – as specified in article 14 section 1 of the CIT Act, which forms a special provision in relation to article 12 section 1 of the CIT Act and defines the concept of revenue from disposal of items and proprietary rights for a specific fee, the revenue from such disposal corresponds to the value of the item (proprietary right), as expressed by the price specified in the agreement, regardless of the recipient. Consequently, the repayment of mortgage-secured debt to the mortgage creditor is regarded as a gain for the seller of the property.

Loss on the sale of a claim covering a “security deposit” which has not been returned by the contracting party, formerly included in the revenues of the transformed company, may be regarded as tax-deductible expenses of the newly-established private limited liability company, according to the ruling issued on March 08, 2022 by the Supreme Administrative Court (case files no. II FSK 1543/19).

The case concerned the transformation of a sole proprietorship into a private limited liability company. The newly-established company will be entitled to obtain the return of the amount of the security deposit which was retained by the taxpayer’s business partner in order to secure the proper performance of construction works.

The legal predecessor of the private limited liability company recognized the claim as its receivables, meaning that the future event meets the criteria specified in article 16 section 1 item 39 of the CIT Act, according to which tax-deductible expenses do not include “losses on the disposal of claims/receivables for a specific fee, including in the manner specified in article 12 section 1 item 7, except for the claims/receivables or parts thereof which were previously recognized as revenue due – up to the amount formerly recognized as revenue due.” Given the above, a loss resulting from the sale of the aforesaid claims/receivables may be considered as a tax-deductible expense of a sole-shareholder private limited liability company.

Revenue in the form of a free-of-charge benefit emerges upon execution of a suretyship agreement, rather than upon its performance, according to the ruling issued on March 09, 2022 by the Supreme Administrative Court (case files no. II FSK 1615/19).

The company believed that revenues only arise upon performance of a suretyship agreement. However, according to the court, revenues in the form of a free-of-charge benefit emerge earlier, i.e. upon execution of such agreement. Moreover, the court did not share the company’s position that it is not possible to establish the value of the benefit in question, and that there are no regulations which could be used to determine that value. Pursuant to the CIT Act, “the value of in-kind benefits, incl. unpaid ones, is determined on the basis of market prices used for performance of services or provision of items/rights of the same type and category, taking into account their condition, degree of wear, and the time/place.” In the case at hand, the amount and conditions of the loan are clear, which means that there should be no difficulty in establishing the value of remuneration for the surety with respect to a specific borrower and the loan obtained by that borrower.

It is possible to amend the VAT amount incorrectly included in an invoice that allegedly covers non-existent operations if the tax authority has ultimately denied the invoice recipient’s right to deduct VAT, according to the verbal statement of reasons to the ruling issued on March 09, 2022 by the Provincial Administrative Court in Łódź.

The Provincial Administrative Court has decided that if the tax authority denied the recipient of a “fake invoice” the right to deduct input VAT resulting from such invoice, the risk of loss of tax revenues related to the deduction ceased to exist. Consequently, the tax authority cannot refuse the option to amend VAT that was incorrectly specified in the invoice – this goes beyond the prevention of the tax revenue losses because there is no longer any possibility of such losses.

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    Need any assistance? Got any questions? Call or e-mail us

    Małgorzata Wąsowska
    Tax Advisor / Partner / Head of Tax
    +48 691 477 047
    malgorzata.wasowska@actlegal-bsww.com

    Jakub Świetlicki vel Węgorek
    Tax Advisor / Senior Associate
    +48 505 703 768
    jakub.swietlicki@actlegal-bsww.com

    Szymon Kokot
    Tax Advisor / Trainee Attorney-at-law / Associate
    +48 691 557 507
    szymon.kokot@actlegal-bsww.com

    act legal Poland advises Adventum on acquisition of Sky Tower for over EUR 84 m

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    act BSWW legal & tax represented the buyer in the acquisition of an office, retail and residential complex in Wrocław, with a total area of over 171,000 sqm, from Sky Tower S.A., member of Develia Group.

    Our services included a full range of transaction advisory, including due diligence, preparation of transactional documentation and support during negotiations. The law firm also guided the client throughout the financing acquisition process.

    The project team was led by Marta Kosiedowska (Partner) and Marek Wojnar (Managing Partner), supported by Katarzyna Marzec (Partner).

    As regards the acquisition of financing, the client was advised by Marta Kosiedowska (Partner), supported by Mariusz Grochowski (Senior Associate).

    This is yet another property acquired by Adventum over the recent time, and we are more than glad to be able to assist the client at each subsequent stage of its growth. In October, we had the opportunity to advise Adventum on the acquisition of the Mercedes-Benz building in Warsaw, said Marek Wojnar.

    Adventum is definitely growth-oriented, as can be seen from their recent acquisitions. Sky Tower boasts a huge potential and perfectly fits into our client’s development strategy. – noted Marta Kosiedowska.

    Adventum Group is a boutique investment fund management company focused on Central European real estate investment projects. The group has thus far completed projects with a total value of over EUR 1.5bn in the CEE region.

    Sky Tower is one of Poland’s highest developments (212 meters and 50 floors). Apart from over 30,500 m² of leasable office space, the project covers commercial space (25,000 m²), luxury apartments, comprehensive leisure facilities, and a multi-level underground car park.

    The seller and the financing banks were advised by Dentons.

    The real estate team at act BSWW legal & tax is one of the biggest among Polish law firms. Our practitioners advise on all types of real estate projects, with a strong focus on large development, retail and office projects. They act for a wide range of international, domestic and regional clients, including developers, property owners, asset managers, investors, lessors and lessees.

    act legal Poland advised Sices Polska on the sale of real estate in Kielce

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    act BSWW legal & tax advised on the sale of a real estate at Olszewskiego 6 in Kielce to an Italian company, CEAR S.R.L.

    The transaction covers a property with manufacturing facilities and a total area of almost 6 hectares.

    The law firm’s real estate team provided comprehensive advisory services to the seller throughout the transaction, i.e. from negotiations of the transactional documentation (sales agreement and accompanying documents), to closing.

    The project was handled by Jacek Bieniak (Managing Partner) and Aleksandra Krzemień (Associate).

    Sices Polska is a member of Sices Group, operating in the Polish market since 2003. The company specializes in the production and assembly of pressure vessels (reactors, separators, columns) and heat exchangers, as well as the prefabrication of pipelines for the following sectors: Oil & Gas, Chemical & Petrochemical, Energy & Power, Environmental & Recovery.

    CEAR S.R.L. is an Italian company operating in the industrial automation and electrical distribution sector providing comprehensive services in the design, construction, installation and commissioning of power and control panels, and complete industrial automation systems.

    The real estate team at act BSWW legal & tax is one of the biggest among Polish law firms. Our practitioners advise on all types of real estate projects, with a strong focus on large development, retail and office projects. They act for a wide range of international, domestic and regional clients, including developers, property owners, asset managers, investors, lessors and lessees.

    act legal Poland advises STRABAG Real Estate on acquisition of land with Galeria Plaza (Kraków) building from CP-Plaza sp. z o.o.

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    The law firm represented the buyer in the acquisition of the 80,000 sqm property that comes with an appealing location and convenient transport links to the city center.

    act BSWW legal & tax provided comprehensive pre-transactional (including a legal and tax due diligence audit of the property) and transactional assistance (with a strong focus on relations with neighbours and lessees of the shopping mall). We also advised on tax issues, including the preparation of applications for advance tax rulings related to the transaction. The developer’s plans involve the discontinuation and demolition of the existing shopping center, followed by the construction of a mixed-use complex made up of several buildings.

    The transaction team was led by Marek Wojnar (Managing Partner) and Marta Kosiedowska (Partner). Further assistance was provided by Michał Sołtyszewski (Partner), responsible for the legal due diligence process. Małgorzata Wąsowska (Partner) and Jakub Świetlicki vel Węgorek (Senior Associate) provided tax advisory services.
    “We are glad to be witnessing our client’s steady growth. The land lot on which Galeria Plaza is located offers a huge potential, which is yet another reason to be proud of the opportunity to represent STRABAG Real Estate in this transaction,” says Marek Wojnar.

    The seller, Peakside Capital, was represented by Dentons’ real estate team.

    Peakside Capital is an independent investor and manager of real estate projects and investment funds. The company operates predominantly in Central and Eastern Europe and Germany, holding offices in Warsaw, Prague, Frankfurt, Zug (Switzerland) and Luxembourg.

    STRABAG Real Estate is a leading developer, operating in 13 European countries. Its Polish projects include the development of Astoria office building and a hotel for Motel One (both based in Warsaw). With a view to further developing its portfolio, in 2019, the developer bought land that hosts Atrium International office building in downtown Warsaw. By completing the acquisition of land in Dąbie (part of Kraków), the company has embarked on its expansion into regional markets.

    The real estate team at act BSWW legal & tax is one of the biggest among Polish law firms. Our practitioners advise on all types of real estate projects, with a strong focus on large development, retail and office projects. They act for a wide range of international, domestic and regional clients, including developers, property owners, asset managers, investors, lessors and lessees.

    Get the RET right. The tax side of real estate | December 2021

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    The tax side of real estate. Periodic newsletter for the Real Estate sector.

    The basic designation of land in the Local Spatial Development Plan is decisive for determining the nature of the land as a building area – such conclusions arise from the judgment of the Supreme Administrative Court dated 10 November 2021. (case file no: I FSK 575/18).

    The case concerned a request for tax interpretation in which the Applicant inquired about VAT taxation of three undeveloped plots of land. According to the LSDP, two of the plots are earmarked for non-public green areas and the third one for a multi-family residential development. The SAC stated that in order for a real property to be recognized as a building area, the primary designation of land in the LSDP is decisive. The additional designation is supplementary and admissible, but it does not modify the basic designation in the LSDP.

    “In this respect, it should be noted that the tax authorities – contrary to the SAC- hold that in a situation where the LSDP sets out the permissible designation for development, such plots of land meet the definition of a building area and cannot benefit from the exemption.” – commented Małgorzata Wąsowska, Head of Tax and Tax Advisor at act BSWW legal & tax.

    Pursuant to the general interpretation issued by the Minister of Finance on 15 December 2021 (no  DD5.8203.2.2021) regarding the application of the income tax exemption to income generated from participation in the profits of general and limited partnerships which are taxpayers of income tax, the so-called “dividend exemption” is available with respect to general and limited partnerships to the profits generated by these companies from the moment they became CIT taxpayers. The exemption does not apply to entities which are general partners because the regulations in this respect provide for a different mechanism eliminating the “double” taxation of such a partner’s income.

    In accordance with the general interpretation dated 9 December 2021 issued by the Minister of Finance (no. DCT2.8203.2.2021) concerning the concept of a controlled transaction of a homogeneous nature, in the case of the so-called indirect transactions with domestic entities, the obligation to prepare transfer pricing documentation arises only with respect to the cost side of the transaction. This is justified by the fact that only in respect of cost transactions, where a receivable is paid, it is possible to determine the actual owner of such receivable. The general interpretation also clarified the previously expressed practical issues of homogeneity of transactions, comparability criteria and transfer pricing verification methods.

    “The general interpretation has dispelled frequent doubts arising in practice as to which entities are required to verify the beneficial owner. It is to be welcomed that the scope has been clarified and narrowed with respect to entities paying out receivables.” – commented Szymon Kokot, Tax Advisor at act BSWW legal & tax.

    The remuneration paid to cover the costs related to adapting hotels to the standards of a given brand is an indirect tax deductible cost and should be deducted when incurred, i.e. at the time when the amount of payment is entered into the books, and in the case of its reimbursement, the tax deductible cost is adjusted in the period when the corrective invoice is received – position presented in the tax interpretation of 17 December 2021 (no. 0111-KDIB1-2.4010.558.2021.1.SK).

    The case concerns three companies, where the Applicant (providing hotel management services) undertook to support two interested parties (lessees of the hotel building) with respect to complying with the standards set by the hotel chain and adjusting the building to the requirements of the hotel brand. If the events specified in the contracts, e.g. termination of the contract, occurred – the interested parties agreed to return the support received.

    “The amount of Support Payment is undoubtedly related to the Applicant’s solicitation of potential Interested Parties in order for them to carry out hotel business, and thus is related to the Applicant’s earning of revenue in terms of providing hotel management services to owners or lessees under the concluded HMAs. Therefore, the Support Payment paid by the Company to the Interested Parties may constitute a tax expense. This cost, being related in a general way to the Applicant’s business activities, is an indirect tax deductible cost. It cannot be linked directly to the revenues obtained from the above-mentioned agreements during their duration,” indicated the Director of KIS (National Tax Information Office).

    Performing the function of the president of the management board of a company by a person delegated to do so by the parent company and holding shares in the capital structure of the group does not generate a gratuitous benefit on the part of the company – individual interpretation of December 24, 2021 (no. 0111-KDIB1-2.4010.628.2021.1.BD).

    “In addition, when the function of a member of the board is held by a person who at the same time holds shares in the capital structure of the group to which the company in which the person serves on the board of directors belongs, no income from gratuitous benefits arises on the part of this company. This is due to the fact that the shareholder (direct or indirect) may obtain certain benefits from the company in the future, including, among others, dividends,” explained the Director of KIS.

    Unpaid liabilities of a company existing at the time of its deletion from the KRS register do not generate revenue subject to CIT – tax interpretation of 20 December 2021. (no. 0111-KDIB2-1.4010.503.2021.1.MKU).

    The case concerns a company that purchased land for the purpose of conducting a development project. Due to the pandemic, the company decided not to implement the project, sold the land and started the liquidation process. The company had outstanding loans and interest, which had not been paid at the moment of the deletion of the company from the National Court Register. There was also no statute of limitations, cancellation or other extinguishment of these liabilities.

    “It should be emphasized that the basis for recognizing tax income should always be the occurrence of a real gain on the part of the taxpayer. Such a gain on the part of the Applicant will not occur. At the moment of deleting the Applicant from the register of entrepreneurs of the National Court Register, the Company will cease to exist. Therefore, it will be impossible to attribute to it – as an entity no longer existing – any gain, and thus any revenue on this account. To sum up, the value of the Company’s unpaid liabilities (loans and interest) existing as at the date of completion of liquidation and deletion of the Company from the register of entrepreneurs of the National Court Register will not constitute taxable income for the Company,” commented the Director of KIS.

    Need any assistance? Got any questions? Call or e-mail us

    Małgorzata Wąsowska
    Tax Advisor / Partner / Head of Tax
    +48 691 477 047
    malgorzata.wasowska@actlegal-bsww.com

    Jakub Świetlicki vel Węgorek
    Tax Advisor / Senior Associate
    +48 505 703 768
    jakub.swietlicki@actlegal-bsww.com

    Szymon Kokot
    Tax Advisor / Trainee Attorney-at-law / Associate
    +48 691 557 507
    szymon.kokot@actlegal-bsww.com

    act legal Poland advises Uno Capital on joint venture real estate project

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    act BSWW legal & tax advised Uno Capital in a transaction involving the establishment of a joint venture entity and the transfer of a real estate title to it with a view to implementing a prestigious residential project in a resort town in the south of Poland.

    The law firm supported the client throughout the process of setting up the new JV entity with a local partner, and transferring the title to the property intended for the development project.

    The project team was led by Marek Wojnar (Managing Partner), and included Magdalena Banaszczyk-Głowacka (Partner) and Edyta Maciążek (Senior Associate).

    Uno Capital is a fund established in 2010, investing predominantly in companies from the FMCG sector, new technologies and medical services.

    act BSWW legal & tax advises leading Polish and foreign corporations and investment companies on commercial law and capital transactions. As a co-founder of act legal, an alliance of leading independent law firms, it participates in cross-border projects led by international groups of experts advising on commercial and corporate matters.

    act legal Poland advises STRABAG Real Estate on sale of real estate in Łódź

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    Due to its rapid growth and a range of large new projects, STRABAG Real Estate is selling selected smaller assets. One of such transactions is the sale of an investment property in Łódź.

    The law firm provided transactional advice throughout the sale process.

    “STRABAG Real Estate’s project portfolio keeps expanding. Apart from assistance in acquisition projects, we are happy to have been given the opportunity to support our client in a disinvestment transaction once again,” says Marek Wojnar.

    The project team was led by Marek Wojnar, Managing Partner, and Magdalena Banaszczyk-Głowacka, Partner.

    The real estate team at act BSWW legal & tax is one of the biggest among Polish law firms. Our practitioners advise on all types of real estate projects, with a strong focus on large development, retail and office projects. They act for a wide range of international, domestic and regional clients, including developers, property owners, asset managers, investors, lessors and lessees.

    Excessive requirements for members of supervisory boards at joint-stock companies

    Posted on by Małgorzata Zelek

    The basic obligation of the supervisory board is to oversee the activities of the management board, so that it acts in compliance with applicable laws, good practices and the company’s best interest. Based on the draft bill amending the Code of Commercial Companies, the lawmaker intends to extend the powers of supervisors, e.g. by allowing them to obtain information on the company’s operations, which is supposed to ensure information-related balance between the management board and the supervisory board. At the same time, the plan is to implement more options of penalizing supervisory board members. Supervisory authorities are starting to set requirements that few supervisory board members are able to meet.

    Capacity to act as a supervisory board member

    The activities of supervisory boards at joint-stock companies are governed predominantly by article 382 § 1 of the Code of Commercial Companies, according to which a supervisory board performs ongoing supervision over the company’s operations in all their aspects. Who can serve as a supervisory board member? Pursuant to article 18 of the Code of Commercial Companies, this can be a natural person who has full legal capacity and has not been convicted for specific offences under the Criminal Code, i.e. offences against protection of information, credibility of documents, assets, business, civil-law transactions, and money and securities trading, as well as the offences discussed in articles 585, 587, 590 and 591 of the Code of Commercial Companies.

    Additional requirements need to be fulfilled by candidates for supervisory board members at enterprises owned in total or in part by the State Treasury. These criteria are covered by articles 19-21 of the State-Owned Assets Management Act, and involve (among others) the obligation to have adequate educational background, professional title and certificates (incl. ones awarded on the basis of relevant exams).

    Pursuant to the Certified Auditors Act, it is required to appoint an audit committee at public interest entities only. One of the members of such committee needs to have knowledge and skills in accounting or auditing.

    Consequently, there are no additional criteria regarding knowledge or experience, which should be met by supervisory board members, unless they also serve as members of the audit committee. This means that shareholders are free to choose supervisory board members who – due to their professional skills and qualifications – will ensure effective supervision over the company’s operations.

    Supervisory boards made up of financial experts only

    We have recently witnessed a change in the approach of the Polish Financial Supervision Authority which is starting to require all members of supervisory boards to have substantial expertise in accounting or auditing, combined with knowledge of the industry in which a given company operates, even if they do not act as members of the audit committee. As a result, the Polish Financial Supervision Authority is increasingly pointing to the liability of supervisory board members in case of any inadequacies in the financial reporting processes.

    It is worth analyzing two main provisions that determine the scope of tasks performed by supervisory board members, i.e. article 382 of the Code of Commercial Companies and article 4a of the Accounting Act. They form the basis to assume that a supervisory board is obliged to verify the accuracy of the procedure involving the preparation and submission/publication of financial statements. The above does not mean, however, that members of supervisory boards are responsible for a substantive review of financial reports, or that they are obliged to arrive at the same findings as those identified by accounting professionals, i.e. auditors or audit committee members. The objective of the supervisory board’s evaluation of financial reports is to determine whether they fairly present the company’s financial standing. Nevertheless, supervisory board members are not required to boast specialist knowledge of accounting; instead, they are only supposed to showcase the knowledge of basic functions and principles related to balance sheets, profit and loss accounts, other financial documents and balance sheet valuation. Their knowledge of these areas is necessary to make a general assessment of whether the management board’s key accounting decisions reflect the company’s interests, have been made with due diligence and are reasonable from the economic perspective[1].

    Financial reporting and the audit committee

    As a general rule, public interest entities are obliged to have an audit committee whose members are responsible for a comprehensive audit of the company’s financial reporting. The role of the audit committee is to release the supervisory board (as a whole) from the obligation to perform professional monitoring over financial reporting. This conclusion also arises from the Code of Best Practices for WSE-Listed Companies, which notes that the scale and nature of operations of most public companies are extensive. Hence, it is virtually impossible for supervisory board members to independently perform the supervision tasks specified in applicable legal regulations. This produces a situation in which the supervisory board needs to rely on internal processes and functions, e.g. the audit committee; sometimes, it is also necessary to use the services of external entities/individuals, particularly auditors and audit firms[2].

    The above leads to the conclusion that joint-and-several liability of members for inadequacies in financial statements may only emerge if it is established that each of the members bears individual liability resulting from failure to abide by the standards applicable to their functions, so long as the obligations and requirements for each member of the supervisory board have been precisely defined[3].

    Different qualifications = broad supervision options

    If all members of a supervisory board had financial expertise, this would make it nearly impossible to properly supervise the operations of a given company. For example, it would be extremely difficult to analyze contracts or transactions in various fields as supervisors would simply not have any idea about them. Consequently, it is crucial to combine diverse industry-specific experience and the professional skills of supervisory board members. Apart from financial and legal expertise, industry knowledge and the ability to broadly analyze a company’s problems, the ability to thoroughly review the company’s transactions or to assess HR issues are of considerable importance for the efficient operations of a supervisory board and proper cooperation with the management board.

    As noted in the Diversity in Supervisory Boards 2021 report, it is not the supervisory board’s task to persistently contest the management board’s actions or to blindly accepts such actions. Given the vast number of tasks and responsibilities, only a diverse (in terms of education, experience, qualifications, age and gender) supervisory board, which is at least partially independent from the majority shareholder, offers an actual opportunity to come up with the best solutions and effectively supervise the company’s operations[4]. Supervisory boards should be composed in a way that ensures the representation of different skills/qualifications, thus favorably influencing the overall quality of supervision.

    Summary

    Supervisory board members should always be selected on the basis of the needs of a given company, the scale and profile of its operations, business dynamics, technological developments or the expectations of its customers. Only by staffing the supervisory board with specialists in various fields is it possible to ensure proper supervision. Needless to say, some members should have knowledge and skills in accounting and auditing, e.g. in order to form the company’s audit committee or to properly analyze financial documents. However, it cannot be expected that all board members will be financial experts because in such case, there would be an insufficient number of adequate candidates in the market. This is yet another reason to negatively assess any legislative changes, such as the intended new version of article 96 section 6a item 2 of the Public Offering Act, which would make it possible to impose liability directly on supervisory board members for companies’ offences related to financial reporting. The same applies to the Polish Financial Supervision Authority’s extension of requirements concerning the financial knowledge of all supervisory board members. Such actions will result in a drop in the number of professional members of supervisory boards, who are aware of the growing risks associated with the performance of supervisory functions.

    [1] E. Krześniak, Odpowiedzialność członków rady nadzorczej spółki akcyjnej za prawidłowość sprawozdań finansowych spółki [Responsibility of supervisory board members at a joint-stock company for the adequacy of the company’s financial statements], Przegląd Prawa i Administracji 112, 2018; https://repozytorium.uni.wroc.pl/Content/109206/07_Krzesniak_E_J_Odpowiedzialnosc_czlonkow_rady_nadzorczej_spolki_akcyjnej_za_prawidlowosc_sprawozdan_finansowych_spolki.pdf

    [2] https://www.gpw.pl/pub/GPW/files/PDF/dobre_praktyki/Wskazowki_DPSN2021_v2_29.07.21.pdf

    [3] Nowe obowiązki spółek publicznych i członków organów – implementacja do prawa polskiego dyrektyw 2006/43/WE i 2006/46/WE [New obligations of public companies and members of their bodies – transposition of directives 2006/43/EC and 2006/46/EC], prof. dr hab. Adam Opalski, MOP 2010, No. 5.

    [4] za: Piotr Rybicki [w:] https://www.wmadvisory.pl/wp-content/uploads/2021/11/Raport-30-Club-Poland-Investor-Group-final.pdf

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    Piotr Wojnar
    Adwokat / Partner zarządzający
    +48 22 420 59 59
    piotr.wojnar@actlegal-bsww.com

    Łukasz Świątek
    Adwokat / Starszy prawnik
    +48 22 420 59 59
    lukasz.swiatek@actlegal-bsww.com

    Katarzyna Krzykwa
    Aplikant adwokacki / Prawnik
    +48 22 420 59 59
    katarzyna.krzykwa@actlegal-bsww.com