Changes in the law as of January 1, 2019

We present the most important law changes for entrepreneurs that will take effect in 2019.
CIVIL LAW
The Act of 9 November 2018 on amending certain acts in order to introduce simplifications for entrepreneurs in tax and economic law (hereinafter: “the Act”. Journal of Laws 2018, item 2244), the so-called MSP package)
(1) The Act introduces far-reaching changes to, inter alia, civil, commercial and labour law provisions.
2. in Article 1, the Act amends Article 39 of the Civil Code, a provision concerning the consequences of conclusion of a contract by a person acting as a body of a legal person without authority or in excess thereof. Such a person could be, for example, a member of the management board of a limited liability company whose mandate has expired and who was not appointed for another term of office by oversight. The new regulation makes the validity of a contract concluded by such a person dependent on its confirmation by the legal person on whose behalf it was concluded (so-called suspended ineffectiveness).
In the case of unilateral legal actions, their execution without authorisation or with exceeding its scope, in the absence of consent of the addressee of the declaration of will is absolutely invalid. The newly introduced Article 39 of the Civil Code is therefore symmetric to the provisions of Articles 103 and 104 of the Civil Code applicable to the proxy. The unambiguous regulation resolves previous disputes in doctrine and jurisprudence.
COMPANY LAW
Act of 9 November 2018 on amending certain acts in order to introduce simplifications for entrepreneurs in tax and business law (the so-called MSP package)
The MSP Package also introduces changes to the Commercial Companies Code, primarily for limited liability companies, the most important of which are:
1. removal of some of the previous restrictions on the adoption of resolutions by shareholders at a distance, by circulation. Up to now, the so-called final annual resolutions, adopted by an ordinary meeting of shareholders, could not be passed in this way. The amendment to the Ministry of Treasury removes this limitation. Among others, resolutions to be passed in a secret ballot may still not be passed in a written form.
2) Introduction of a procedure for resignation of the last management board member in the company by introduction of the provision of art. 202 § 6 of the Polish Commercial Companies Code, according to which if, as a result of resignation of a management board member, no seat on the board would be filled, the management board member shall submit his resignation to the shareholders and at the same time convene a meeting of shareholders. Such resignation will not be effective until the day following the date for which the shareholders’ meeting was convened.
While this solution partially prevents the existence of companies with vacant boards unable to operate, it creates an exception to the general rule under the Civil Code that a declaration of intent intended to be made to another person is made when it reaches that person in such a way that he or she is able to learn its contents. The new Art. 202 § 6 of the Code of Commercial Partnerships and Companies furthermore stands in opposition to the resolution of seven judges of the Supreme Court of 31 March 2016. (ref. III CZP 89/15), partially making it obsolete.
As a result of the planned changes, there is a risk that the last member of the management board will be forced for some time to perform an unwanted function and bear the related liability, e.g. in the event of the occurrence of prerequisites for declaring bankruptcy. The above mode of resignation applies accordingly to the last member of the supervisory board of a limited liability company, provided that such a body has been established.
An analogous change has been introduced for a joint-stock company, with the difference that the last member of the management board submits his resignation to the supervisory board, and when no seat on the supervisory board is filled, to the shareholders, at the same time calling a general meeting. In this case as well, the regulation shall apply accordingly to the supervisory board member.
3) Explicit regulation of the procedure of amending the articles of association of a limited liability company in organisation by adding art. 161 § 4 of the Polish Commercial Companies Code, according to which amending the articles of association of a limited liability company in organisation requires that the articles of association be concluded by its shareholders. This provision shall not apply to the articles of association entered into in a teleinformatic system. The wording of the new art. 161 § 4 of the Polish Commercial Companies Code is consistent with the Supreme Court’s decision of 25 February 2009 (Case No. II CSK 489/08) and confirms the current practice in this respect.
The regulation of the issues related to the dividend in the absence of the shareholders’ resolution on this subject, i.e. the dividend day (according to which the list of shareholders entitled to the dividend for a given financial year is established) and the date of payment of the dividend. Pursuant to the new article 193 § 3 sentence 2 of the Polish Commercial Companies Code, if a resolution of the shareholders meeting does not specify the dividend day, the dividend day shall be the date of adoption of the resolution on profit distribution. Pursuant to the amended Art. 193 § 4 of the Polish Companies Act, if the shareholders’ meeting does not set the dividend record date, the dividend shall be paid immediately after the dividend record date. So far, the issue of the dividend record date and the date of payment of the dividend, in the absence of a resolution to that effect by the shareholders, has

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