Application of the statutory model in the association registration process – Article

As mentioned in the introduction, a template is a legally defined multi-variant document template. Interference with model content is unacceptable. The founders can only choose variants to regulate or supplement certain provisions of the model, as long as they are expressly authorized in the document. This is related to the fact that the court does not then examine the content of the document – as noted, this content is already defined by the provisions of the law. The model concept is also used in other member states of the European Union, for example in Portugal (Zagrobelny 2015).

The concept of using a template to enroll an entity in the National Court Register and thereby significantly speed up its creation has been applied in practice for more than ten years. By the law of April 1, 2011 amending the law – Commercial Companies Code and certain other laws (Journal of Laws 2011 No. 92, item 531), the provisions of which entered into force on January 1, 2012, the legislator introduced the possibility to set up and register limited liability companies using a model contract made available in electronic form. Directly related to this was the provision introducing a one-day time limit for consideration of an application for registration of a limited liability company established with the use of a standard form contract. This is a term of instruction, however, due to the electronic form of communication with the recording court and the standard nature of the statutes and application, the legislator has provided for a significant simplification of the registration procedure and its significant shortening (Justification 2010, p. 11). The standard enterprise agreement mentioned above was of paramount importance in the proposed solution.

In the rationale for the discussed act, it was stated that the purpose of the proposed amendment is to significantly facilitate and accelerate the establishment of limited liability companies, as well as to simplify the corresponding procedure. It was pointed out that research on doing business in Poland and around the world has proven that the timing of company registration is of great importance from the point of view of removing obstacles to starting a business. business, and the introduction of the ability to register a limited liability company using the Internet is a natural consequence of the progressive electronicization of legal commerce (Rationale 2010, p. 3). The legislator provided that the electronic path would be used by the majority of entities, indicating that the practice of other countries shows that after the establishment of such a mode of registration, it is used by approximately 70% of companies in limited liability (Rationale 2010, p. 2).

The solution has proven itself so well that a few years later, the law of 28 November 2014 amending the Code of Commercial Companies and certain other acts (Journal of Laws of 2015, point 4) extended the possibility of using the model to other companies – general partnership and limited partnership, and from July 1, 2021, using the model of the agreement, it is possible to incorporate a new type of capital company in the National Register of Courts – a simple stock company (PSA). The introduction of a simple stock company was accompanied by some legal doubts (cf. interpellation n° 25337 on simple stock companies), but they related more to the legal form itself than to the course of registration using a template.

Currently, in the S24 system, using the template and with a one-day instruction review period, we can establish four types of business entities – a limited liability company, a general partnership, a limited partnership simple and a simple stock company.

All the arguments cited above, used ten years ago in relation to the solution introduced for companies, can reasonably be invoked when discussing the assumptions for using the statutory model when registering an association. At the same time, they should be complemented by the argument of more than a decade of practice in the application of this solution by the National Register of Courts and its validity, which is confirmed, among other things, by subsequent amendments described above, extending the solution to various forms of business.

Among the advantages of setting up a business in the S24 system, mentioned in the government site for information and services for entrepreneurs, we mention, among other things, the possibility of completing all the formalities without traveling (via the Internet) , the intuitiveness of the system, placing all standard documents in the system or reducing the costs associated with avoiding the need to consult a notary and reducing court costs (PLN 250 instead of PLN 500) (https://www.biznes.gov.pl). All these advantages can also appear in the case of associations – even if the main thing will always be to be constituted more quickly – with less important advantages linked to lower costs, since the constitution of an association does not imply the visit of a notary, moreover when the association is not registered in the register of entrepreneurs either, there are no legal costs. At the same time, however, for associations registering for the register of entrepreneurs under S24 – assuming the implementation of the solution, of course – it seems fully justified to reduce the registration fees, following the example companies.

Among the limits of this solution, the government portal mentions less flexibility in drawing up the articles of association, the impossibility of modifying the financial year and the fact that – in the event of the constitution of a company, the imperative condition of which is the constitution share capital – capital can only be covered by cash contributions (https: // www. .biznes.gov.pl). In the case of an association, the only one of the above restrictions would be the first of those listed, ie less flexibility in the elaboration of the provisions of the statute of the association. By the way, it should be noted that the restriction indicated for companies in the form of the obligation to cover the contribution only with cash contributions does not seem too heavy (in the case of a simple stock company, it can be PLN, a higher amount – at least 5000 PLN – applies to limited liability companies).

The implementation of the solution in the case of limited liability companies was associated with the removal of the requirement of a notarial deed for a limited liability company contract concluded using a standard contract. This was a significant change needed to speed up the process. When implementing the solution for associations, a potential limitation is identified related to the greater number of people required to constitute an entity than in the case of a company, or – to be more precise – to the form in which these persons must constitute the association and confirm this fact. Until now, founding meetings have been documented with traditional signatures, especially the attendance list. When designing a solution for associations, one should keep in mind the possibilities offered by, among other things, a trust profile.

In addition to the above considerations, it can be noted that a similar practice – the elaboration of a model – has been applied to another social entity, namely the “new” circles of rural housewives (we speak of circles of housewives operations governed by the law of 9 November 2018 relating to circles of rural housewives, and not to entities of this type operating on the basis of other regulations). In accordance with art. 5 sec. 3 of the law in question, the circle of rural housewives can operate on the basis of the standard statute, the content of which is specified in the appendix to the law. At any time, the group of rural housewives operating on the basis of the standard statute may adopt its own statute, in accordance with the requirements set out in paragraph 2 of the Law. The main difference is that, according to her law, rural housewives’ clubs are not registered in the national register of courts, but in the national register of rural housewives’ clubs maintained by the Restructuring Agency and the modernization of agriculture.

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