On 3 December 2025 the Civil Law Codification Commission at the Polish Ministry of Justice adopted a proposal to amend the Commercial Companies Code by throwing out all of the existing rules on “corporate groups” introduced by the act of 9 February 2022 and replacing them with a new framework of rules in this area.
Justification for the proposal
According to the authors of the proposal, the provisions introduced in 2022, Art. 211–2116 of the Commercial Companies Code, do not meet the needs of corporate groups and have barely been used in practice. That reform was criticised by most legal scholars in Poland; it had no counterparts in other countries’ legal systems and did not coincide with calls for legal changes elsewhere in Europe.
Opt-out instead of opt-in
The drafters of the new proposal started from the principle that the rules should be “universal,” in the sense that the proposed rules would apply to all corporate groups meeting the conditions set forth in the statutory definition—thus rejecting the current opt-in model.
Under the proposed definition, a “corporate group” (grupa spółek) means a dominant company, or other person meeting the conditions provided for a dominant company, along with a dependent company or companies, if they pursue ongoing economic cooperation, are covered by integrated management instruments, and conduct operations on the basis of a common long-term strategy. (Under the proposed Art. 4 §1(51) of the code, a corporate group could be headed not only by a “dominant company,” but also by “another dominant entity,” such as a natural person, which is not a legal person or other organisational unit. For simplicity, in this article we use the term “dominant company” also to apply to instances involving another type of dominant entity.)
The proposed regulations on corporate groups would thus apply not only to holdings based exclusively on passive capital stakes and exercise of share rights. The regulations would apply to subsidiaries whose personal statute is Polish law, but also when the dominant company is foreign-based. The subsidiary’s articles of association could specify that it is not subject to the regulations on corporate groups (an opt-out model), but that would take initiative on the part of the subsidiary’s shareholders, requiring the heightened majority needed for amending the articles of association—the reverse of the existing opt-in model. (Under the proposed Art. 7d §1, the regulations on corporate groups would also not apply to a subsidiary which is subject to financial-market supervision, unless it is subject to financial-market supervision solely due to its status as a public company.)
Legal blessing for acting in the interests of the group
Under the proposal, the authorities of a company belonging to a corporate group may be guided by the interests of the corporate group, also meaning that they could consent to the company suffering temporary unfavourable consequences, if:
- A balancing of their interests is ensured within a reasonable period, justified by the nature of the cooperation between the companies belonging to the corporate group, but no longer than five years
- It will not result in limiting the benefits flowing from participation in the company which could reasonably be expected by the shareholders, and
- It does not expose the company to a danger of insolvency.
The dominant company could not exert influence over a subsidiary belonging to the corporate group which would lead to violation of these conditions. Consequently, the proposal would legitimise actions taken by the authorities of subsidiaries (such as the management board, the supervisory board, or the shareholders’ meeting) in the interest of the corporate group, at the expense of the subsidiary, thus allowing the subsidiary’s authorities to avoid the risk of civil or criminal liability for acting to the short-term detriment of their own company.
Protective instruments within a corporate group
The proposal provides that if as a result of disrupting the balance of interests of the companies belonging to the corporate group there is a material restriction on the benefits flowing from participation in the company obtained by minority shareholders, the minority shareholders would have a right to apply to the court for relief in the form of:
- Payment by the company of an appropriate compensatory benefit to the minority shareholders, or
- Ordering the buyout of the minority shareholders.
The dominant company would be jointly and severally liable to the minority shareholders, along with the (direct or indirect) subsidiary, for payment of the compensatory benefit or the buyout price for the shares.
For minority shareholders of the subsidiary to exercise these instruments, under the proposal they would have a right to apply to the registry court for appointment of an audit firm to examine whether the subsidiary has exceeded the permissible bounds of acting in the interests of the corporate group—i.e. a right to a special audit, which in certain instances could even extend to other companies in the corporate group.
Moreover, under the proposed regulations, the dominant company would be liable to the subsidiary’s creditors for losses caused by the subsidiary’s insolvency resulting from infringement of the ban on the dominant company’s exertion of influence over the subsidiary leading to the subsidiary’s exceeding of the permissible bounds of acting in the interests of the corporate group.
Other companies that are dominant in relation to the subsidiary would be jointly and severally liable to the subsidiary, along with the dominant companies.
The burden of proof would be allocated so that the creditors of the insolvent subsidiary would have to demonstrate:
- That the subsidiary which is their debtor, and the dominant company sued by the creditors, belong to a corporate group, and
- The loss resulting from the subsidiary’s insolvency.
However, the dominant company could be relieved of liability if it demonstrated at least one of the following:
- The subsidiary did not exceed the permissible bounds of acting in the interests of the corporate group, and thus the balance of interests between the companies belonging to the group were not disrupted
- The dominant company did not exert influence over the insolvent subsidiary which caused it to exceed the permissible bounds of acting in the interests of the corporate group, or
- There was no causal connection between the disruption in the balance of interests between the companies in the group to the disadvantage of the insolvent subsidiary, or exertion of influence over the subsidiary, and the subsidiary’s insolvency.
This would mean introducing a sort of presumption of liability on the part of the defendant dominant company, and in light of the rule of joint and several liability of all dominant companies, a presumption of liability of all the dominant companies. Nonetheless, according to the authors of the proposal, regulating this otherwise would render the mechanism defending the creditors illusory, due to evidentiary difficulties, because, unlike minority shareholders, creditors lack channels for obtaining information about the corporate group.
It should also be pointed out that “opting out” of the regime on corporate groups would effectively deprive the minority shareholders and creditors of companies in the group of the protective mechanisms included in the proposal.
According to the proposal, the amending act would enter into force six months after publication. However, with respect to the (few) companies that have decided to disclose their participation in a corporate group under the provisions from 9 February 2022, the existing rules for corporate groups would continue to apply for one year after entry into force of the amendment.
We will report here on the further progress of this legislation.
Aleksandra Fizek, adwokat, M&A and Corporate practice, Wardyński & Partners
