Obligations for members of supervisory boards in Polish commercial law companies
In the recent years we witness a strong tendency in the Polish law to increase the liability of members of supervisory bodies in companies operating under commercial law. Such is also the aim of the amended Article 4a Paragraph 1 of the Accounting Act, which entered into force on 23 September 2015.
The amended Accounting Act extends the obligation to ensure accordance of reports with the Accounting Act to include consolidated financial reports and activity reports of corporate groups. The regulation greatly increases the liability of members of supervisory boards in companies which are part of a corporate group.
A lack of implementation of the obligation imposed by Article 4a of the Accounting Act may entail severe sanctions, both civil and criminal in their character.
Pursuant to Article 4a Paragraph 2 of the Accounting Act, heads of units and members of supervisory boards or other supervisory bodies of the unit are jointly and severally liable towards the company for any damage caused by commission or omission which constitutes an infringement of the obligation to ensure accordance of reports with the act. What is more, liability towards the company arises not only in case of damage to the company itself, but also in case of damage to third parties, such as the company’s counterparties or creditors, who base their financial decisions on published reports.
The amended Accounting Act also extends the criminal liability of members of supervisory bodies, who under the previous act were only criminally liable for infringements related to financial reports. At present, pursuant to Article 77 of the Accounting Act, if a financial report, consolidated financial report, activity report, or activity report of a corporate group is not prepared at all, is prepared so as to be incompatible with the act, or includes inauthentic data, members of the supervisory board face a fine and/or two year imprisonment.