ŽABA, M.: On liability for execution or non-execution of the binding instruction in the group of companies under Polish law. Právny obzor, 105, 2022, special issue, pp. 60-72
https://doi.org/10.31577/pravnyobzor.specialissue.2022.05
On liability for execution or non-execution of the binding instruction in the group of companies under Polish law. This article deals with the new Polish regulation of the group of companies and the issue of internal liability between companies participating in such a group. The purpose of this paper is to analyse the regulation concerning not only the legal nature of binding instruction issued in the group of companies but also the liability in the case of damage caused by the execution or non-fulfilment of such an instruction. In the article pages that follow, references are made to the boundaries of the binding instruction, the premises for refusal to perform it and the issue of the parent company’s liability for damage caused by the execution of a binding instruction and the subsidiary company’s liability for failure to carry out the instruction.
Key words: group of companies, liability for non-execution of the binding instruction, liability for damage caused by the execution of the binding instruction, Polish law
Preliminary remarks
Amendment to the provisions of the Commercial Companies Code
1)
made under the Act of February 9, 2022
2)
has brought the regulation of groups of companies into force in Polish law for the first time. One of the most significant instruments enabling harmonisation of the functioning of companies within holding structures is now the mechanism of issuing binding instructions. The justification for the possibility of using this instrument in practice is to improve the management of capital structures. However, when introducing the binding instruction instrument, the legislature decided to make its application voluntary for specific parent companies
3)
. It indicated that the parent company may - but does not have to - issue a binding instruction to a subsidiary company
4)
participating in a group of companies as to managing the subsidiary company's affairs (Art. 21
2)
§ 1 CCC). Thus, a binding instruction may be issued only within a group of companies by the parent company to the subsidiary.
In order for companies to be considered as participating in a group of companies, two conditions must generally be met. Firstly, the subjective conditions under Art. 4 § 1 pt. 5
1)
CCC must be fulfilled
5)
. Secondly, the objective condition must be met, according to which the meeting of shareholders or the general meeting of the subsidiary company must adopt a resolution on participating in a group of companies by the majority of threefourths of votes and with the indication of the parent company (Art. 21
1)
§ 2 CCC). However, it is not necessary for companies to be recognized as participating in a group of companies based on disclosing their participation in the register of entrepreneurs of the Polish National Court Register. The disclosure is declaratory in relation to the group formation.
The issue of binding orders seems to be important because of the future standards of the functioning of holding companies in the Polish reality
6)
. Particularly important aspects regarding a binding instruction issued within a group of companies by the parent company are not only its nature and subject limits as well as the possibility to refuse its execution by the subsidiary, but above all there is the issue of liability for damage caused by the execution of a binding instruction or liability for non-fulfilment of the same.
