Who cannot be appointed as a member of the management board or a commercial representative of a company?

The amendment to the Code of Commercial Companies that came into force on 13 October 2022, changed the criteria when appointing members of the management board or commercial representatives, among other things.

When selecting a person to be a member of the management board or a commercial representative in a company, attributes such as skills, knowledge, education and experience, as well as credibility and integrity are usually taken into account. With regard to credibility and integrity, the Commercial Companies Code sets out the minimum requirements that every candidate must meet in order to be elected to serve in the company.

Pursuant to Article 18 of the Commercial Companies Code, a member of the management board or a commercial representative may not have been convicted, in a final and non-appealable judgment, of any of the criminal offences specifically indicated in that provision. Note that this prohibition ceases to be effective five years after the date when the judgment of conviction became final and non-appealable, or earlier, if the record of criminal conviction was already expunged from the official criminal register.

The previous provisions referred to crimes and offences, such as crime for the unlawful disclosure of information, offences against the credibility of documents, property crimes, white-collar crimes (economic crime and crime property interests in civil law transactions) and offences against trading in money and securities. Now, in addition to the reference to the provisions of the Criminal Code and the addition of extra provisions from the Criminal Code, this catalogue has been extended to include certain provisions from the Commercial Companies Code, specifically: Articles 587-5872, Article 590 and Article 591 of the Commercial Companies Code.

The new provisions introduced into the Commercial Companies Code set out sanctions for:

1. non-compliance with disclosure obligations, such as: failing to provide within the specified time, submitting false information, documents, reports or explanations, or concealing information that has a material impact on the content of such information, documents, reports or explanations. The provision provides for a fine of between PLN 20,000 and PLN 50,000 or the restriction of liberty. If the perpetrator acted unintentionally, the fine will be between PLN 6,000 and PLN 20,000.
2. causing the management board to fail to provide the advisor to the supervisory board with access to documents, withholding the requested information, providing false information, or concealing information that has a material impact on the content of such information or documents. The provision provides for a fine of between PLN 20,000 and PLN 50,000 or the restriction of liberty. If the perpetrator acted unintentionally, the fine will be between PLN 6,000 and PLN 20,000.

The new provisions are intended to make anyone appointed to perform a function in a company, such as members of the management board and commercial representatives, attach even greater importance to the duties they perform, given that the sanction for infringements, in addition to financial consequences and the restriction of liberty, also includes a temporary prohibition on holding such offices.