HOW TO SUBMIT A FINANCIAL STATMENT TO NATIONAL COURT REGISTER IF YOU ARE A FOREIGNER?
By Joanna Mieczkowska-Łowicka.
According to amended regulations of the National Court Register Act, submitting financial statements and other year-end documents to register court is now possible only via electronic means.
These documents are transmitted to data base called “Financial Documents Repository” (“Repozytorium Dokumentów Finansowych”) free of charge. However, you are entitled to make a submission only if you are a person entitled to represent the company (i.e. you are a member of the management board, a partner in a partnership, an official receiver or a liquidator) entered into the Register and your PESEL (personal identification number) is also revealed in the Register.
How one can submit a financial statement when none of the persons entitled to represent the company entered into the Register has a PESEL or such number is not revealed in the Register? Such case will occur when all of the members of the management board are foreigners and as such – do not have PESEL or an entity entitled to representation is a foreign company (and its representative body consists of foreign natural persons only).
In practice three solutions might be applied:
1) Firstly, the company’s shareholders can appoint a new member of the management board who has a PESEL. Of course, in this way, an interference into the managing system of the company is inevitable, which is why this solution would be undesirable for the shareholders in many cases.
2) Secondly, a management board member who does not have a PESEL can apply for obtaining it. The procedure will differ subject to immigration status of a person – if a foreigner meets the requirements allowing him to register his residence (“meldunek”) e.g. has a residence permit, PESEL will be assigned to him automatically once he register the residence. If he or she cannot do this (e.g. he does not stay permanently in Poland), he may apply for PESEL by submitting a motion to a Commune Office (“Urząd Gminy”). In the motion, he or she should indicate a legal basis under which he or she is obliged to have PESEL (Article 19e point 2 of the National Register Act, which makes it impossible to submit financial documents to the Financial Documents Repository when none of the persons entitled to represent the company has a PESEL, should suffice).
However, both of the above solutions are somehow problematic and before one decides to apply any of them, it should be taken into consideration that information on appointment of a new member of the representative body or on obtaining PESEL by a current member must be duly filed to register court and entered into the Register before the deadline for submission of financial documents. Thus it is rather unlikelyfor such new information to be entered into the Register before the 15th of July 2018, which is, for most of the companies, a deadline to submit financial documents.
3) Taking the above into consideration, the most convenient solution might be to opt for third solution and to submit financial documents by a web portal “S24”, where a motion to register can be submitted by a proxy (holder of a power of attorney). The proceedings regarding such a motion is a type of court proceedings so power of attorney can be granted only to the professional lawyer (advocate or attorney-at-law). Motion is also subject to a 140 PLN fee. Additionally, documents enclosed to such motion (financial statement itself) must be signed using qualified electronic signature, although the motion itself can be signed also with trusted profile ePUAP.
Joanna Mieczkowska-Łowicka specializes in corporate and commercial law, in particular in the field of M&A transactions, and current corporate advisory for Polish and foreign entrepreneurs. In case of any questions related to the article above, please contact us at kancelaria@kols.pl, or the author directly.
This information is for guidance purposes only and should not be regarded as a substitute for taking legal advice.