Operating a business in Poland as a limited liability company (Polish: spółka z ograniczoną odpowiedzialnością, abbreviated sp. z o.o.) necessitates certain changes over time. These can include amendments to the articles of association, the appointment of new managing directors, or a change of address for the company. This article explains when such a change takes effect immediately upon its implementation and when it only becomes effective upon registration in the Commercial Register (Polish: KRS).
Registration in the Polish National Register of Entrepreneurs (KRS) – constitutive or declaratory?
According to Polish law, all changes to the data of a limited liability company (GmbH) that must be disclosed in the National Court Register (KRS) must be reported to the company register within 7 days of being made. However, regardless of compliance with this legal obligation, certain changes take effect upon signing the resolution, while others only become effective upon registration in the KRS.
In practice, we distinguish between two types of entries in the KRS – constitutive and declaratory. The first has a constitutive character, meaning that the change only becomes effective from the time of registration – that an entry is constitutive must be stipulated by law.
The second of the aforementioned entries – the declaratory entry – merely confirms an existing right. Amendments to a limited liability company (Sp. z o.o.) whose entry in the National Register of Companies (KRS) is declaratory are effective regardless of when they are registered in the KRS. However, this does not release the company from the obligation to report the amendment affected by such an entry to the competent registry court. Most amendments to a limited liability company (GmbH) are effective regardless of their registration in the KRS and are therefore declaratory.
Distinction – constitutive or declaratory?
As mentioned above, the type of entry is determined directly or indirectly by law. If the law does not specify that the change requires registration in the KRS (National Register of Civil Status) to be valid, it is a declaratory entry.
In Polish limited liability companies (GmbHs), any amendment to the articles of association becomes effective upon registration in the National Court Register (KRS), in accordance with the obligation expressly stated in Article 255 of the Commercial Code: "Amendment of the articles of association requires a resolution of the shareholders and registration in the register." Therefore, such data of the GmbH as the company name, the object of the company, the amount of share capital or the registered office of the company only become effective upon registration in the KRS.
As mentioned above, a change of registered office for a limited liability company (GmbH) becomes effective upon registration in the National Court Register (KRS). However, this rule does not apply to every change of address where the GmbH operates. According to the Civil Code, the registered office of the company is the location of its administrative body. The Commercial Code stipulates that the registered office of the GmbH must be specified in the articles of association. Therefore, a change of registered office from Zielona Góra to Wrocław requires an amendment to the articles of association and thus becomes effective upon registration in the KRS. However, a change of the company's address, for example, from Bohaterów Westerplatte Street in Zielona Góra to Powstańców Śląskich Avenue in Wrocław, does not require an amendment to the articles of association and becomes effective upon a corresponding resolution by the management.
The conversion, division, merger, and dissolution of the company are also constitutively registered. Personnel changes within the company, such as the appointment of an authorized signatory, changes in management, or changes in shareholders, become effective upon signature.
Why is it necessary to report changes?
Regardless of the type of entry, the law obligates the business owner to make the necessary changes due to the presumptions associated with the National Register of Businesses (KRS). The first presumption is the presumption of knowledge of the entries, meaning that no one can claim ignorance of the company's data recorded in the KRS. The second presumption concerns the accuracy of the entries in the register, meaning that if the data recorded in the KRS does not correspond to the actual circumstances, this cannot be invoked against third parties if no corresponding notification has been made. For example, if the composition of the company's management changes and a contracting party enters into a contract with a person who is no longer a member of the management, it would be ineffective to invoke the fact that this person is no longer a member of the management if the change has not been disclosed in the KRS.
In addition to the aforementioned assumptions, the law stipulates more serious consequences for the failure to register a company within the prescribed time limit. If the application for registration of a limited liability company (GmbH), traditionally established before a notary, is not submitted to the commercial register within six months of the date of the articles of association, the company will be dissolved. For companies registered via the S24 system, the registration deadline is only one week.
For questions regarding registration in the Polish Register of Entrepreneurs (KRS), please contact us by email at kontakt@kancelaria-pozniak.pl or by phone at +48 665 246 969 .