Broader applicability of obligation to state address for correspondence
Amendments to the National Court Register Act which came into force on 15 March 2018 make it compulsory to register addresses for correspondence of persons associated with Polish companies with the National Court Register (the amendments are discussed in more detail here).
The new requirements apply to filings made with a registry court concerning:
- Persons entered in the National Court Register as representing a company, in particular management board members, liquidators, and commercial proxies (under an amendment to Art. 19a(5) of the National Court Register Act, declarations of consent of representatives to their appointment and their addresses for service of correspondence have to be submitted with the application to register the representatives)
- Persons representing a company, members of the managing bodies, or persons authorised to appoint the company’s management board (under an amendment to Art. 19a(5)(d) of the National Court Register Act, a list of the names (or trading names) and addresses for service of correspondence to the persons described above has to be submitted with a company filing; if a legal person is a shareholder in the company, the names and addresses for correspondence of members of the body authorised to represent the legal person have to be given).
Importantly, entities listed in the register have to submit the information described above when the first application is filed with the register after the new provisions come into force (as of 15 March 2018) but no later than 15 September 2019.
Purpose of the amendments
The amendments are designed to achieve greater effectiveness of notices sent by the National Court Register to management board members, liquidators, and commercial proxies of Polish companies (among other things forcing them to make compulsory filings with the National Court Register), and to persons responsible for selecting or appointing a body authorised to represent companies (forcing them to comply with these obligations).
If a notice is not complied with, the court can fine the persons concerned, repeatedly if necessary (under provisions in the Civil Procedure Code on enforcement of non-pecuniary obligations).
Which address should be given?
Under the act, there are no restrictions on the addresses for correspondence, and therefore any address in Poland, the EU, or elsewhere, can be given.
Under the amendment to Art. 19a(5)(d) of the National Court Register Act, however, if an address for correspondence of the named persons is outside of the EU, a representative on whom correspondence can be served in Poland has to be named (based on Art. 11355 of the Civil Procedure Code).
While the statement of reasons for the amendments refers to the place of residence of particular people, the National Court Register Act only mentions the address for correspondence. The overriding purpose of this solution is to ensure that correspondence directed to that address is always collected, and where necessary is forwarded to the person concerned.
Therefore the address for correspondence stated does not have to be a private address of permanent residence of the person in question. It can be a work-related or official address that meets the requirements described above (always received and forwarded).
Depending on the permanent place of stay and technical capabilities for receipt and forwarding of correspondence in Poland, the following solutions can be employed in practice:
- Permanent stay in Poland—state an address of a Polish company
- Permanent stay in a different EU country—state the address of an entity in the group with its registered office in that EU country
- Permanent stay outside of the EU—state the address of an entity in the group with its registered office in the EU whose infrastructure ensures that correspondence is forwarded to the person concerned (a representative is named for correspondence in Poland only if this is not possible).
Under the amended Art. 19a(5)(b), any change to an address for correspondence must be entered in the National Court Register. This can be especially difficult in the case of change of address of persons authorised to represent a shareholder which is a legal person. Lawyers representing a particular entity in Poland might not know of the changes, and this information might not be in the National Court Register if notification is not submitted within the required time.
On one hand it is sensible to give the address for correspondence as the registered office of an entity in which particular people are members of the managing body. Then, if the person in question leaves the management board, the legal person can forward the correspondence and also realise that notification has to be submitted to the National Court Register of the change in its managing bodies. On the other hand, this system does not guarantee a person who is no longer on the managing bodies of a legal person that correspondence will reach them at all and that notification will be submitted to the National Court Register to enter the changes in the shareholder’s managing bodies.
When choosing a particular address for service of correspondence, the implications of stating a particular address should be considered.
Łukasz Śliwiński, legal adviser, M&A and Corporate Practice, Wardyński & Partners