Corporate Advisory Assistant at RSM Poland
Plans of introducing an online registration procedure in the National Court Register (in Polish: KRS) were developed back in 2018. Unfortunately, the online registration process still remains merely a proposal.
Under the Act of 26 January 2018 amending the National Court Register Act and Certain Other Acts (Journal of Laws 2018, item 398), regulations introducing the online registration procedure were supposed to enter into force on 1 March 2020. Due to the fact that the Ministry of Justice did not manage to prepare sufficient facilities for the S-24 ICT system on time, the planned effective date of the new regulations has been postponed until 1 March 2021 by virtue of the Act of 13 February 2020 Amending the Act: Code of Civil Procedure and Certain Other Acts. However, this was still not enough. The planned effective date of the amendment in question was postponed once again until 1 July 2021 by virtue the Act of 21 January Amending the Code of Administrative Procedure Act and Certain Other Acts.
Can we really expect that it will become a standard for all National Court Register proceedings to be 100% online? I encourage you to read the article below offering some insight into the changes that are coming.
All the indications are that all Polish companies will face a brand new reality on 1 July 2021
According to the list of draft regulations published on the official website of the Government Legislation Centre, works are under way to adopt two regulations by the Minister of Justice that partially reveal the secret when it comes to how the KRS online business register is going to function after 1 July 2021. What should be noted here is that these are only draft regulations, so they may change a lot before they enter into force. The planned effective date of both legal acts is 1 July 2021.
Changes are coming... but are they, really?
The first of the aforementioned drafts is a regulation of the Minister of Justice on organisational and technical conditions concerning the form of applications and their submission to the Central Information Point of the National Court Register via the ICT system, as well as copies, excerpts, certificates, information, documents and copies of documents delivered to applicants via the ICT system and the manner of handling documents and copies of documents issued online (list number A386).
This draft regulation does not introduce too many changes and focuses on bringing the definitions from the regulation of 22 December 2011 in line with those currently used. One of such examples is the definition of the electronic signature that has been further specified. According to the discussed draft, an electronic signature shall mean a qualified electronic signature, trusted signature and personal signature. Moreover, in many places in the document, the term “online” has been replaced with the phrase: “via the ICT system”. Both aspects are important since copies, excerpts, certificates and information from the register shall be delivered via the ICT system and bear an electronic signature of an authorised employee of the Central Information Point.
Under this draft, the ICT system shall confirm that the aforementioned information as well as documents and copies of documents from the catalogue have been included there, recording it along with the relevant date under the address available on the websites of the Ministry of Justice in the Public Information Bulletin.
Digital documents and payments
The other draft we are interested in is the regulation of the Minister of Justice amending the regulation on the procedure for submitting pleadings via the ICT system supporting court proceedings (list number B563).
It stipulates that any person interested in accessing the ICT system shall be obliged to create an account in this system. Only a natural person can create an account. The ICT system can be used not only for filing applications, e.g. for registration in the National Court Register and similar, but also other letters (not applications) addressed to the registration court. According to the rationale of the draft regulation, applications and other letters shall be completed using the ICT system upon prior electronic identification of the user, i.e. authentication. What follows is that applications that are currently official forms shall be available and filled out in the ICT system. In addition, the system shall allow for ‘other application’ option to be selected in case none of the available documents involves submitting a relevant application to the online register.
In the course of submitting documents, it will be possible to upload any appendices to each application and letter and pay the court fee, as well. The payment can be made in the process of filing your letter via the ICT system, using a mechanism provided by the ICT system, ensuring that the payment procedure has been irreversibly initiated and the payer identified. What is important, the payment can be made in another non-cash form, in cash or using court fee stamps; in the latter case, you will have to attach a proof of payment to your application. However, all these documents must necessarily be in electronic format.
The good news is that the draft regulation allows applications and other documents to be prepared in the ICT system by a person other than the one who is ultimately going to sign them. If a letter must be signed by more than one member of a management board, every person appointed to this position is obliged to sign the document electronically using their qualified electronic signature. This can be done either via the same profile or different accounts, computers and locations.
Role of a notary public in e-KRS proceedings
Pursuant to the Act of 26 January 2018 Amending the National Court Register Act and Certain Other Acts, from 1 July 2021, a notary public is going to be obliged to instruct parties to a deed about the method and procedure of filing an application in registration proceedings and the obligation for an application to include the number of the extract or excerpt in the Central Repository of Electronic Excerpts of Notarial Deeds or, provided that a notarial deed contains details being the basis for registration in the KRS business register. That is good news, because the notary public will be obliged to instruct the entrepreneur on how to make changes in the online register.
Furthermore, it will no longer be necessary to deliver any copies or scans of a notarial deed being the basis for your entry to the court.
Online registration procedure vs. representation by a proxy
We already know that once certain provisions of the Act of 26 January 2018 Amending the National Court Register Act and Certain Other Acts enter into force on 1 July 2021, companies will have the option of filing their applications in the online KRS system by proxy. Unfortunately, this is the only thing we know; no further information is available here. However, we may assume that the aforementioned proxy will be obliged to have a qualified electronic signature and it shall be a professional proxy within the meaning of the Code of Civil Procedure (in Polish: KPC) of 17 November 1964 (Journal of Laws of 2020, item 1575, uniform text). So who would this person be? To be more specific, we may refer to the definition of a proxy provided in Article 87 § 1 of KPC, which reads: “A proxy can be a lawyer or a legal counsel, and in cases of restructuring and bankruptcy also a person holding a licence of a restructuring advisor, and a person managing the property or interests of the party and a person who has an ongoing contractual relationship with the party, provided that the subject matter of the case falls within the contract, a co-participant in a dispute, as well as a spouse, sibling, descendants or ascendants as well as persons remaining in adoption-like relationship with the party”.
This is good news for foreign entrepreneurs, because, in theory, this solution should facilitate their daily business operations and allow them to make changes in their companies without having to get to know the Polish–language ICT system in detail. However, it remains to be seen how this works out in practice.
E-signatures as an essential part of the digital revolution?
Filing documents with the Polish offices and institutions started going online already in 2018. Back then, members of management boards were required to obtain either a qualified electronic signature or an ePUAP trusted profile in order to sign financial statements prepared online. However, that was just the beginning.
E-signatures playing an increasingly important role and will now also be an essential element of the online registration procedure in the National Court Register. As of 1 July 2021, every member of a management board of a company or a branch will be required to have one. If all company documents are being prepared electronically, the e-signature of every member of the management board is going to be required for some of them. An electronic signature is also going to be indispensable for accessing the e-KRS system. It will probably not only be used for signing documents that are being filed, but also act as an access key to the system.
If you are interested in getting a qualified electronic signature, we encourage you to read this article.
As of 1 July 2021, any application concerning an entity subject to registration in the KRS business register, hence all types of companies and branches of foreign entrepreneurs, shall only be filed via the ICT system. This means that all applications and documents concerning the registration of any changes that have taken place will have to be drawn up exclusively in electronic format. If you file your documents in any other format, they will be returned by the court, which means it will be impossible in practice to file them this way.
Despite the fact that we are slowly learning more, both the appearance and operation of the S-24 ICT system remains a great mystery. There is less than a month left until the regulations enter into force and we are still hoping that some more detailed information about e-KRS will gradually be published as the effective date approaches.
We hope that this time indeed all companies will have an opportunity to move to a new digital reality. Third time’s the charm!