KIELTYKA GLADKOWSKI ADVISES FOREIGN CLIENTS IN COMPLEX CORPORATE PROCESSES RELATED TO THE DISSOLUTION, WINDING UP OR LIQUIDATION OF POLISH COMPANIES WITH INTERNATIONAL SHAREHOLDING STRUCTURE.
KIELTYKA GLADKOWSKI provides legal assistance to Clients in voluntary dissolution of companies, which primarily ends with the deletion of the company from the Polish National Court Register, which is the appropriate register for commercial companies.
The purpose of liquidation proceedings is to close the company or its branch, i.e. end its current interests, collect debts, pay liabilities and liquidate assets.
The essential core on which the degree of corporate complications depends is the creation of a legal situation at the financial and operational level that liquidation of a company is not mandatory, but a resolution to dissolve a partnership or a company (except for a limited joint-stock partnership) should be passed unanimously.
Legal advice rendered in respect of the dissolution of companies depends on the type of entity to be dissolved.
Some of the reasons for the dissolution of companies are common for all types of partnerships or companies. Such reasons are:
1. reasons provided for in the articles of association of the company:
– the time for which the company was concluded,
– achieving the goal indicated in the articles of association;
2. resolution of the partners or shareholders to put the partnership or company into liquidation:
– in partnerships it should be a unanimous resolution of all partners;
– in capital companies and limited joint-stock partnerships, it should be a resolution of the shareholders’ meeting or general meeting to dissolve the company, adopted by a qualified majority of votes, and in a limited joint-stock partnership, the consent of all general partners is additionally required;
3. dissolution of the company by the court by means of an action for dissolution:
– partnerships – for important reasons, an action may be brought by each of the partners of the partnership;
– capital companies – an action may be brought by a shareholder or a member of the company’s body in a situation where achieving the company’s purpose has become impossible or other important reasons have occurred resulting from the company’s relations;
4. completion of the company’s bankruptcy proceedings.
Polish law distinguishes between the causes of dissolution characteristic only for partnerships and – separate – only for capital companies.
Examples of reasons specific only to partnerships include:
– death of a partner;
– declaration of bankruptcy of a partner.
Examples of causes specific only to capital companies are:
– a court decision on the dissolution of a capital company entered in the register, when:
1) no articles of association have been concluded;
2) the object of the company’s activity specified in the articles of association is contrary to the law;
3) the articles of association of the company do not contain provisions concerning the business name, objects of the company, share capital or contributions;
4) all persons concluding the articles of association had no legal capacity at the time of the performance of this act.
There is also a group of causes for the dissolution of a company specific to a given type of company.
KIELTYKA GLADKOWSKI advises on all stages of the liquidation of companies and prepares relevant documents required to start the process
With regard to capital companies, liquidation is opened at the following moment:
1) on the day the decision on the dissolution of the company by the court becomes final;
2) on the day the shareholders (Article 274 § 1 of the Polish Commercial Companies Code) or the general meeting (Article 461 § 1 of the Polish Commercial Companies Code) adopt a resolution to dissolve the company;
3) on the day of the occurrence of another reason for the company’s termination.
Such a resolution does not have to be adopted unanimously.
In partnerships, liquidation is opened when a unanimous resolution to dissolve the partnership is adopted. On the other hand, in capital companies, due to the obligatory nature of liquidation, its opening is associated with the emergence or existence of reasons for dissolving the company.
The Code of Commercial Companies links the opening of liquidation with the effect of expiry of the commercial proxy.
KIELTYKA GLADKOWSKI advises liquidators of companies on their appointment, scope of duties, registration in the Commercial Register of Companies and discharge of liquidators’ duties.
Regardless of the type of commercial company, only a natural person with full legal capacity can be its liquidator. This is a requirement set out directly in Article 18 § 1 of the Polish Code of Commercial Companies. A final court decision on partial or complete incapacitation deprives the incapacitated person ex lege of the liquidator function.
In a partnership, the liquidators are the partners of a specific partnership, with the exception of a limited joint-stock partnership, in which the liquidators are the general partners who have the right to run the partnership’s affairs.
The Code of Commercial Companies, specifying the act of entering into their duties by liquidators, uses the following words:
KIELTYKA GLADKOWSKI provides assistance in the procedure of appointing liquidators by shareholders and in other cases indicated above through court proceedings.
Also, KIELTYKA GLADKOWSKI prepares and submits applications for the appointment of company liquidators on behalf of Clients.
Article 77 § 1 of the Polish Commercial Companies Code imposes on the liquidators of a partnership (except for a limited joint-stock partnership), and thus also their competence, the obligation to complete the current interests of the partnership, collect debts, fulfill obligations and liquidate the partnership’s assets.
Pursuant to Article 283 § 1 and 2 of the Polish Code of Commercial Companies and Art. 469 § 1 and 2 of the Polish Code of Commercial Companies, liquidators of capital companies and limited joint-stock partnerships within the limits of their competences specified in Art. 282 § 1 and Art. 468 of the Polish Code of Commercial Companies have the right to run the company’s affairs and represent it. Restrictions on the powers of liquidators have no legal effect vis-à-vis third parties. With regard to a limited joint-stock partnership which does not have a management body, it should be borne in mind that this provision provides for the general partners in this partnership and their right and obligation to run and represent the partnership.
Many liquidation activities performed by liquidators require a resolution of the shareholders’ meeting or the general meeting to be valid and effective. In the first place, reference should be made to Art. 281 § 1 and 2 of the Polish Code of Commercial Companies and Art. 467 § 1 and 2 of the Polish Code of Commercial Companies. Approval by the shareholders’ meeting or the general meeting of shareholders is required to approve the so-called liquidation opening balance sheet (financial document) and the liquidators’ activity report and financial report following the end of each financial year.
Liquidators should exercise due diligence in the performance of their duties.
After the liquidation, liquidators are obliged to submit an application for deletion of the company from the register.
KIELTYKA GLADKOWSKI advises Clients on termination of all existing contracts of the company being dissolved, securing the interests under these contracts, regulating relations with the employees if the company employs employees and liquidate the assets of the company.