下载掌阅APP，畅读海量书库
立即打开
According to the transparency principle, taking into account the safety of turnover and legality of conducted business activity, undertaking business activity must be reported in line with applicable requirements. There are two basic commercial registers in Poland: the Central Register and Information on Economic Activity (Centralnej Ewidencji i Informacji o Działalności Gospodarczej-CEIDG) and the National Court Register (Krajowy Rejestr Sądowy-KRS). Other lists and registers also operate apart from the above ones. They are maintained due to the type of the performed business and type of an entity obliged to make entries in these registers. Part of them is functionally or structurally connected with CEIDG and KRS.
The Central Register and Information on Economic Activity is regulated by the Act on the Freedom of Economic Activity (AFEA), while the National Court Register is regulated by the Act on the National Court Register [12] . The Central Register and Information on Businesses is regulated and maintained for enterprises who are individuals (sole traders), while the National Court Register is maintained for all other business entities.
An enterprise may undertake business activity on the date of submitting the application for an entry into the Central Register and Information on Economic Activity, or upon obtaining an entry in the commercial register in the National Court Register.
The CEIDG is maintained in the electronic system by the minister in charge of the economy (currently it is the Minister of Development). An application must be filed in order to be registered in the CEIDG. The application can be submitted on-line,using the public administration services platform, or on a document in hard copy. If the application has the form of a document, it should be filed in the relevant municipality office or sent by registered letter to the address of the relevant municipality office. In the event of submitting an application in this manner, the individual who files the application must confirm their identity. This is followed by the application being uploaded to the electronic system by the municipality.
A template application can be found on the CEIDG website (https://prod.ceidg.gov. pl/ceidg.cms.engine/). An entry in the CEIDG is made if the application is correct. The application is incorrect when:
1) it does not contain information;
2) it contains information that does not comply with the provisions of the law;
3) it applies to activities not covered by the provisions of the act;
4) it was submitted by an individual who was prohibited to conduct business activity under a valid judgement;
5) it regards an individual who is already registered in the CEIDG;
6) no declarations required by law are attached to it;
7) it is not signed;
8) it was submitted by an unauthorised individual.
If the application is incorrect, the municipality or the CEIDG’s computer system (if the application is submitted on-line) notifies the submitting party immediately about this fact. The CEIDG sends relevant data included in the application to other bodies that are in charge of issues related to conducting business activity (in tax issues-to the Tax Office, in statistical issues-to the Central Statistical Office (GUS), and in social insurance issues-to the Social Insurance Institution (ZUS)). Information kept in the CEIDG is updated on a day-to-day basis and synchronised with other registers or authorities that may affect an enterprise (e.g. if a sole trader is transformed into a commercial company-the company is subject to registration in the National Court Register, so the National Court Register will notify the CEIDG about the transformation, similarly, applicable information will be submitted to the CEIDG by the bankruptcy court, the National Criminal Register).
Upon being registered in the CEIDG, the enterprise receives a certificate. The certificate is in the form of an electronic document or a printout from the CEIDG’s website.
Information included in the CEIDG is assumed to be true. An individual entered in CEIDG (the Central Registry and Information about Business Activities) is liable for damage caused by registering false information in the CEIDG, if it was subject to obligatory registration at the individual’s request, as well as by failing to notify the CEIDG about information subject to the obligatory registration within statutory time limit, or failing to submit a notification about changes in the information covered by the registration, unless the damage resulted from the occurrence of force majeure or is attributed exclusively to the injured party or to a third party for which the party entered in the CEIDG is not liable. Taking this into account, an enterprise entered in the CEIDG is obliged to constantly update the information contained in the register. Changes must be notified within seven days from their occurrence. The Minister of Development may also demand that changes be notified within seven days if he finds that there is a discrepancy between the information in the CEIDG and the actual status.
An enterprise is deleted from the CEIDG ex officio, following an administrative decision of the minister responsible for economy in the event of:
1) finding that the enterprise has permanently ceased to conduct business activity;
2) the enterprise failing to submit the information on resuming the performance of business activity, if the suspension term has expired as indicated in the application for suspending the business;
3) a foreign enterprise losing the right to perform business activities;
4) an entry made while breaching the law;
5) the enterprise failing to present the legal title to premises where he/she conducts business activity;
6) a prohibition on the enterprise performing business activities being issued in a valid judgement;
7) the death of the enterprise (the sole trader).
Data and information shared by CEIDG is transparent and available in the public domain. Everybody has the right to access the data and information shared by CEIDG.
The National Court Register comprises three registers:
1) the commercial register;
2) the register of societies, other social and professional organisations, foundations and public healthcare entities;
3) the insolvent debtors register.
The commercial register is maintained in the electronic system by district courts (commercial courts) with their jurisdiction over the province or an area thereof. An especially established Central Information of the National Court Register (CI KRS) operates in these courts, containing the set of information of the register, and also grants information from the register at the request of the interested parties. The municipalities also help to maintain the register (as the lowest level of local government in Poland) by ensuring the interested parties also have access to official application forms, among other things, that are required under the act, allowing for registering unlimited companies or access to information about the amount of charges, methods of payment and local jurisdiction of registry courts. The information contained in the register is transparent. More information can be obtained at https://ems.ms.gov.pl/krs/wyszukiwaniepodmiotu. Everybody has the right to review the registry files for entities entered in the commercial register.
In general, entities other than individuals (sole traders) are entered in the commercial register. This includes, but is not limited to commercial companies (registered partnerships, professional partnerships, limited partnerships and limited joint stock partnerships, limited liability companies and joint stock companies), European economic interests associations, European co-operatives, co-operatives, state-owned companies, research institutes, mutual insurance companies, branches of foreign companies operating in the Republic of Poland. Most frequently, legal personality is created at the stage of incorporating the entity, or upon registering it in the commercial register.
The entry in the register is made following an application, the template of which is generally available (on the website of the Minister of Justice - https://bip.ms.gov.pl/pl/rejestry-i-ewidencje/krajowy-rejestr-sadowy/formularze-wnioskow-skladanych-do-centralnej-informacji-krs/, in registry offices and in local authority offices). An application to make an entry or modification in the commercial register should be submitted within seven days from the occurrence of the event justifying making the entry. Evidence that the stamp duty has been paid must be attached to the application for registration. Due to the fact that some entries in the commercial register are subject to being published in a special publication (the official judicial and economic journal-"Monitor Sądowy i Gospodarczy") a fee for publishing the entry there must also be paid. After application is submitted, it is reviewed by the registry court in terms of meeting formal requirements and its actual content. Generally, there are seven days given for doing this. Upon making the entry in the Register, the registry court transfers the relevant data to the Central Register of Entities-the National Register of Taxpayers and to the Central Statistical Office. The National Court Register, similarly to the CEIDG, is subject to updates and synchronising with other registers, based on data submitted by certain entities (e.g. notaries, banks, government administration bodies, local governments, court bailiffs and the Information Office of the National Criminal Register, for example).
Due to the fact that the information entered in the commercial register is presumed to be true, in the event of finding that the enterprise failed to perform a certain obligation of filing an applicable request to make an obligatory entry in the commercial register, the register court is obliged to call on the enterprise to make the entry within an additional seven days’ time, subject to a fine, which may be imposed several times. A registry court may also instigate special enforcement proceedings for this purpose. If, despite a fine or enforcement proceedings, a commercial company or a partnership entered in the commercial register fails to perform the necessary registration duties, the registry office may ex officio declare that the company (or partnership) is wound up for serious reasons, or it may appoint a liquidator.
The definition of a foreign enterprise was presented above. As far as foreign enterprises conducting business activities in Poland are concerned, the principle of national treatment is given key importance. This principle is repeated in the legislation of all Member States of the European Union. In Poland, it is expressed in Article 13 of the AFEA, which stipulates that foreign parties from any European Union Member States or from member states of the European Free Trade Association (EFTA)-parties of the European Economic Area Treaty-as well as foreign parties from states that are not the signatories of the European Economic Area Treaty but who may take advantage of the freedom of business activity under agreements entered into between these states and the European Union, may undertake and perform economic activity on the same terms as Polish citizens (the first segment of the principle). Citizens of states other than those listed above, but who enjoy a special status in the Republic of Poland (e.g. they hold a settlement permit, a residence permit as a long-term European Community resident, a temporary residence permit granted due to certain circumstances, refugee status, or who enjoy temporary protection in Poland, hold a residence permit for humanitarian reasons or a residence permit for a tolerated stay, a permit to reside for a defined period and are married to a Polish citizen residing in Poland, or who enjoy temporary protection in the Republic of Poland or hold a valid "Karta Polaka" ("Polish Charter")), may undertake and perform economic activity in the Republic of Poland on the same terms as Polish citizens (the second segment of the principle). On the other hand, foreign entities other than those listed in two previous segments are entitled to undertake and perform business activities exclusively in the form of a limited partnership, a limited joint stock partnership, a limited liability company, or a joint stock company. They are also entitled as to join such companies and to subscribe for or purchase their shares, unless stipulated otherwise by international agreements (the third segment of the principle).
The principle of national treatment allows foreign entities to undertake and conduct business activities in Poland on the same terms as Polish citizens in their own country. However, it applies only to foreigners from the European area or to individuals enjoying special status. The third segment of the principle applies to all other entities.
Within the limits set out by the national treatment principle, foreign enterprises may undertake and conduct business activity in any legal forms admitted by the law. In addition to companies, partnerships, foundations, associations and other forms, foreign enterprises may also conduct business activities as branches or representative offices.
A branch is a form of business activity that is separate and independent in terms of organisation, performed by an enterprise outside its registered office or outside the principal location of performing activity. Under the reciprocity principle, unless stipulated otherwise by signed international treaties, foreign enterprises may create branches with their addresses in the Republic of Poland. A branch of a foreign enterprise can only carry out the same activities as performed by the foreign enterprise’s business. A branch must be registered in the Commercial Register of the National Court Register (KRS).
Notwithstanding the obligations under the provisions on the KRS, at the stage of creating a branch, the foreign enterprise is obliged to:
1) give the first name and surname and address in the Republic of Poland of an individual authorised in the branch to represent the foreign enterprise (the final authorised representative);
2) attach the specimen signature of the final authorised representative, certified as true copy by a notary;
3) file copies of the documents based on which it conducts business (the articles of association, the memorandum of incorporation) to the register of branches, together with a certified translation in the Polish language; if a foreign enterprise establishes more than one branch in the Republic of Poland, these documents can be filed in the files of one of the branches;
4) if it conducts business on the basis of an entry into the register – it is obliged to submit a copy of the register to the registry files together with its certified translation into Polish language; if a foreign enterprise establishes more than one branch in the Republic of Poland, these documents can be filed in the files of one of the branches.
After registering a branch, the foreign enterprise is obliged to:
1) use the original name of the foreign enterprise to mark the branch, together with the name of its legal form translated into Polish, adding the words "oddział w Polsce"("branch in Poland");
2) introduce a separate accounting in Polish for the branch, in line with the accounting regulations;
3) notify the minister responsible for economic matters about all changes to the actual and legal status, in the event of commencing liquidation or of losing the right to conduct business, within 14 days from the date of their occurrence.
The branch is subject to constant supervision by the minister in charge of the economy (the Minister of Development). As part of this supervision, the minister will issue a decision prohibiting an enterprise from performing any business activities in the event of:
1) the branch grossly infringing Polish law or failing to perform its notification obligations, as referred to in referred to above;
2) the liquidation of the foreign enterprise that created the branch, or this enterprise losing its right or ability to perform business activity;
3) the foreign enterprise’s activity creating a risk to the security and defence of the state, or the safety of classified information with a confidentiality clause or higher, or any other important public interest.
The Minister of Development notifies the authorised representative of the branch by informing him about the obligation to instigate liquidation proceedings in the branch within a given time limit of at least thirty days.
Foreign enterprises may also create representative offices with their registered addresses in the Republic of Poland. The scope of a representative office’s operations can only include advertising and promoting of the foreign enterprise. A representative office may also be established by foreign entities incorporated under an legal act of a relevant authority in the state of their registered office, in order to promote the economy of this state, where the scope of activities of the representative office is limited solely to promoting and advertising the economy of this state.
Representative offices of foreign enterprises are entered into a special register of representative offices of foreign enterprises, maintained by the Minister of Development. Only representative offices established by a foreign bank or a credit institution do not have to be entered in this register. When registering a representative office, a foreign enterprise submits the same information and documents as those indicated above when registering a branch. If the application contains formal defects, the Minister of Development calls the applicant to supplement the application within at least seven days. The time limit established for supplementing the application may be extended at the justified request of the applicant submitted before the expiry of the time limit. Failing to remove formal defects within the given time limit means that the application for registration is not reviewed. In the event of a positive decision following the application, the Minister of Development issues a certificate on registering the representative office. On the other hand, a refusal to register is given in the form of an administrative decision and is issued if:
1) establishing the representative office would create a risk for the security and defence of the state, the safety of classified information with a confidentiality clause or higher, or for any other important public interest;
2) the application refers to activity exceeding the scope of a representative office’s activity.
When operating the representative office, a foreign enterprise has the same obligations as in the case of a branch (appointing an authorised representative, marking the representative office appropriately, conducting separate accounting books for the representative office, and notifying all relevant changes in the activity of the foreign enterprise). Supervision over representative offices and the grounds for issuing decisions on prohibiting their activity is regulated exactly in the same way as for branches.