A limited liability company may be created in Poland in two different ways:
- in a form of a notarial deed signed before a notary public in Poland.
- on-line,
Option 1 is appropriate for all investors who wish to implement advanced mechanisms which protect their interest in the firm. I always recommend Option 2 where there are more than one shareholders who want to open a business.
The Articles of Association (AoA) should be carefully drafted by an experienced lawyer who will offer a bunch of solutions addressing different topics. Later, the AoA is signed in a form of a notarial deed which is subsequently registered in the court register.
The founders do not need to be personally present before a notary public in Poland. They do not need to spend their money and time on business trips.
It is possible and perfectly practical to grant a proxy to a person who is present in Poland and who will sign the Articles of Association on their behalf. When I work for foreign clients they usually grant a proxy to one of my associates. Such a proxy has to be granted before a notary public of another country. The document must define the scope of the mandate very precisely. When I draft it, I usually prepare a bilingual document which is subsequently incorporated in the foreign notarial deed. Only then I am 100% sure that the Polish court or notary will not subsequently reject it.
The next step is to get an apostille on the proxy or another form of legalization. An apostille is a special, formal document, usually issued by a court, ministry or another public authority, in the country where the proxy is signed. For example, if my French clients grant a proxy before a notary public in Lyon, they will need to go to Cour d’Appel de Lyon. The procedure last usually only a couple of days and is very inexpensive.
Some countries (like China) do not have the apostille procedure. In such a case it is necessary to go through a separate legalization procedure in the embassy or a consulate. This may take a bit more time and effort than getting an apostille but certainly triggers less expenditure than a trip from China to Poland.
Finally, the original of the proxy has to be translated by a Polish sworn translator. This is also very inexpensive and swift.
Such a translated document is a sufficient legal basis for a Polish notary to certify the Articles of Association of an LLC.
There are also some other documents which need to be signed by the founders and the first Management Board Members but they do not require any solemn form. A simple written form is sufficient. Therefore usually we prepare these documents and send the pdf files by email to the clients. They print them out, simply sign and send us by courier.
As soon as AoA and all other documents are signed – it is necessary to file special forms to the court which enters the company in the commercial register. Upon the registration the LLC acquires full legal personality.
Option 2 is a good and cheap solution for a person or an entity who wants to establish a sole-shareholder LLC and wants to cover the share capital only in cash. Such a person or entity will not have other shareholders thus does not need any special legal mechanisms in order to protect the position in the firm. The on-line procedure offers a couple of models of Articles of Association (AoA) to select from. However, the computer system is available only in the Polish language and so are the documents, including the available AoA’s. A foreigner who wishes to go for Option 2 will therefore need a Polish speaking person.
At any time after the creation of a company on-line the shareholders may modify the AoA before a notary public. Therefore if the founder of an LLC decides at some stage that he/she would like to let an investor in – then it is possible and even recommendable to alter the AoA and introduce advanced legal mechanisms to protect the founder. Also, the investor should verify the AoA and insist on modifications which protect the investor’s position.
The registration procedure in Option 1 usually takes up to 2-3 weeks.
Option 2 is quicker, it usually takes just a couple of days.
4 September 2020 | Agata Adamczyk LL.M
