Who can attend the shareholders' meetings of public companies?
Rafał Rapala, Szymon Gałkowski
A public company is a type of a joint-stock company, which has at least one dematerialised share. Shares may be dematerialised if they are offered via a public offering, admitted to trading on a regulated market (e.g. the Warsaw Stock Exchange) or to alternative trading (e.g. NewConnect).
Only persons being shareholders on the day of registration of participation in the meeting (Registration Day) are entitled to attend the shareholders' meetings of public companies. Registration Day falls on the 16th day prior to the date of the shareholders' meeting.
If the shareholder holds registered shares of a public company, he may attend the shareholders' meeting provided that he is entered in the book of shares on Registration Day.
Shareholders holding bearer shares in a document form must provide the company with share documents or a certificate attesting that the share documents have been deposited with a notary office, bank, or investment company, on Registration Day at the latest.
Shareholders holding dematerialised bearer shares must keep their dematerialised shares on their share accounts (e.g. kept by the brokerage house) as at the end of Registration Day. The shareholder should also apply to his brokerage house for a personal certificate of entitlement to attend the meeting.
Management Board duties
The Management Board of a public company, apart from certain other obligations, must also prepare a list of shareholders entitled to attend the shareholders' meeting on the basis of: entries in the book of shares (registered shares), bearer shares /certificates filed with the company (bearer shares in a document form), and the list of those entitled under bearer shares, received from the National Depositary for Securities (the 'NDS') (dematerialised bearer shares), which is prepared on the basis of information received by the NDS from the entities keeping the share accounts. The list of shareholders entitled to attend the shareholders' meeting should be made available in the company's premises for at least three working days prior to the meeting.
If the Management Board's attendance list contains errors, then the shareholders appearing at the shareholder's meeting with personal certificates of entitlement, who are also included on the NDS list, should be allowed to attend the meeting.
However, what should the Management Board do if a shareholder who has a properly issued personal certificate of entitlement appears but is not included on the NDS list? In such situation, it seems that holding only the personal certificate of entitlement to attend the meeting is not a sufficient basis for the Management Board to amend its list of shareholders entitled to attend the shareholders' meeting. Nevertheless, if possible, the Management Board should take appropriate steps to clarify these discrepancies with the NDS. If the NDS recognises its errors in its list, the Management Board should allow such shareholder to attend and vote at the shareholders' meeting.
Pending implementation of the Second E-Money Directive
Jacek Czabanski
The amendment to the Polish Payment Services Act, introducing the provisions of Directive 2009/110/EC of the European Parliament and of the Council (the Second E-Money Directive, the '2EMD'), brought before the Polish Parliament in April 2013, introduces new regulations regarding the issuance, redemption and distribution of electronic money, as well as creation and organisation of the activities and supervision of electronic money institutions. The amendment aims to simplify the regulations concerning the payment services market and standardize the Polish Payment Services Act by abrogating the Polish Electronic Payment Instruments Act. However, the amendment does not transfer all the terms used in the Polish Electronic Payment Instruments Act to the Polish Payment Services Act. Therefore, following the adoption of the amendment the term "electronic payment instrument" will cease to exist in Polish law. Therefore, all provisions relating to electronic money instruments will be covered by the Polish Payment Services Act, as the 2EMD is complementary to the Directive on Payment Services.
The amendment also introduces changes to the regulations regarding payment of pensions, e.g. the possibility to select a payment instrument containing electronic money as the form of payment. In addition, the amendment modifies the regulations concerning bank accounts, to allow use of payment accounts maintained by providers other than banks. The changes ensure equality of treatment of the entities who are subject to the requirements of the Polish Payment Services Act.
Restructuring instead of liquidation – Bankruptcy and Reorganisation Law reform
Piotr Galuszynski
Despite their apparent appeal, in practice reorganisation proceedings are not commonly used by Polish entrepreneurs. The main reason for this is the uncertainty of the legal consequences of initiating reorganisation proceedings. In particular, it is unclear whether the performance of all of the entrepreneur's obligations is suspended upon the date when reorganisation proceedings are opened. The issue of the scope of the suspension on an entrepreneur's obligations raises a great deal of concern, especially regarding the entrepreneur's collaterally secured obligations.
The main aim of reorganisation proceedings, which is to restore an entrepreneur's ability to compete on the market, cannot be achieved without suspending an entrepreneur's collaterally secured obligations. This issue, among others, is currently being examined in the course of the pending legislative process by the Group for Bankruptcy and Reorganisation Law appointed by the Minister of Justice. The Groups recommends that the Bankruptcy and Reorganisation Law should be comprehensively reformed to correspond with the business requirements of economic entities, i.e. accentuating the role of restructuring by composition or reorganisation proceedings instead of liquidation, simplifying reorganisation proceedings, allowing for a choice of various forms of proceedings in order to take into account the debtor's current economic situation, mitigating formal requirements, which are often burdensome for entrepreneurs, and, finally, introducing the second chance policy aimed at allowing the entrepreneurs affected by financial difficulties to return to business activity.
The Group's recommendations stipulate removing the possibility to open and continue any execution proceedings against the debtor (including collaterally secured obligations) upon the date reorganisation proceedings are opened, as this excludes or interferes with the entrepreneur's business, as well as effective reorganisation.