The end of anonymity for shareholders in Joint Stock Companies and Limited Joint Stock Partnerships with bearer shares - new responsibilities for management boards | Legal Alert

The Ministry of Justice has prepared an amendment to the Code of Commercial Companies which includes, among others, the compulsory dematerialisation of shares (i.e. replacing paper-copy bearer shares and registered shares with entries into an electronic register of shareholders).

The dematerialisation process will apply to all joint stock companies and limited joint stock partnerships, including public companies whose shares are not traded on the stock exchange, and private companies and partnerships.

The main purpose of the amendments is to enable the tax authorities to collect and share information regarding those shareholders of joint stock companies and limited joint stock partnerships who own bearer shares. The aim is to eliminate the abuse of bearer shares as instruments used in money laundering and to increase trade safety and security by adopting a uniform legal framework for trading in shares.

The following shareholder details will be recorded in the register: (i) first name, (ii) last name, (iii) shareholder’s address, (iv) number of shares owned, (v) nominal share value, (vi) amount paid for shares or (vii) restrictions on disposal of the shares. The dematerialisation of shares will also mean that companies are no longer obliged to maintain a registered shares register.

Information regarding the registered and bearer shares issued by companies will be collected by entities empowered to keep share accounts – i.e. primarily brokerage houses. The general shareholders’ meeting will select the entity responsible for maintaining the registrar of shares and, consequently, the company shall be liable for the register’s maintenance costs.

The new provisions are scheduled to enter into force on 1 July 2018. The bill is currently under discussion, so it may undergo further amendments before it goes to the Parliament. However, a lengthy period is envisaged between the statute’s adoption and its entry into force, in order to enable companies to prepare themselves for the changes, including the conclusion of agreements for the maintenance of shareholders’ registers. Board members will be liable for any non-compliance with the aforementioned changes and could be fined up to PLN 20,000.

The relevant shares will dematerialise when the amendment becomes effective (on which date company-issued shares shall become ineffective), whereas on the day the statute is promulgated, the provisions governing preparatory measures to be taken by companies shall enter into force. During the following three-year period, shareholders will be required to establish the grounds on which they own their shares and are entitled to shareholders’ rights. With this aim in mind, companies shall also be required to use their internet sites to call upon shareholders to file their shares documentation.

The scheduled changes will also significantly affect trading in shares. An effective transfer of share rights will only be possible once the relevant shares are entered in the register of shareholders. Accordingly, transaction documents will need to include legal mechanisms to ensure that the entity responsible for maintaining the register properly amends the shareholder’s details.

The shareholders’ register will only be capable of inspection by the company and its shareholders. However, access to the register shall, in special cases, also be granted to public administration bodies. At the present moment, it is difficult to predict whether or not the new regulations will entail a duty to disclose the details of shareholders recorded in the register of companies held at the National Court Register, which is currently the case as regards, for example, shareholders who hold at least 10% of the shares in limited liability companies. The amendment does not apply, however, where a company (registered in a country which does not require the disclosure of company partners’ details) becomes a shareholder and is disclosed in the register.

Other changes included in the planned amendments include an obligation for joint stock companies and limited joint stock partnerships to maintain websites to function as the core communication tool with shareholders. There will also be no restrictions on trade regarding shares purchased for in-kind contributions and enforcing their status as registered shares.

These proposed amendments of shareholders regulations are fundamental and would have an enormous impact on trade in shares. The authors of the bill rejected less expensive solutions, such as equalizing the status of bearer shares and registered shares, and introducing an obligation for companies to also maintain share registers for bearer shares. As a result of these proposed amendments, companies will have to incur additional costs for shareholders’ registers to be maintained by empowered entities, and trade in shares shall be significantly formalized. Moreover, the bill does not include any provisions regarding the legal status of shareholders who fail to appear in the company within three years following the entry into force of the new bill.

Should you wish to follow these changes and learn how to prepare for the forthcoming amendments, please do not hesitate to contact us.

Authors:

Michał Badowski, Partner, Attorney at law

Łukasz Kędzierski, Associate, Advocate