Для тих хто прагне знань!

A Few Reflections on Single – Shareholder Limited Liability Company on the Ground of Polish Commercial Law

Discussing problem of limited liability company it’s worth to say, that this legal form has existed for 109 years. For the first time was governed in Germany, when act of limited liability company went into force in 1892.

Time which has lasted since that event showed form of limited liability company very useful. According to Polish Yearbook, in Poland exist about 140 000 such companies and in Germany and France about 2 million. Most of such companies, these are companies which have not more than a few shareholders, however exist single – shareholder limited liability companies[1].

In its essence limited liability company has personal – capital character, shareholders shall trust each other. Single – shareholder limited liability company has much stronger personal character, it’s about one basically reason – there’s only one shareholder[2]. The capital character of the company is in own essence.

According to the provision of art.151 §1 of Commercial Companies Code[3], a limited liability company may be incorporated by one or more persons for any purpose allowed by law, unless the law provides otherwise. This provision complies with European Union directives, which allow creating limited liability companies for any purpose allowed by law[4]. The Code governs companies sensu stricto, consist of few shareholders as well as single – shareholder company.

Professor K. Kruczalak states, calling pre – war doctrine that single – shareholder limited liability company is simple way to restrict liability of person who leads enterprise. The purpose, the company is created for, is that, there’s easier to control such company and especially companies created by the same shareholder. This form of company is favorite form for holding enterprises[5].

Remembering that limited liability company is a capital company, we cannot forget that company is only legal form, construction, legal fiction and in fact the shareholder is acting[6]. From the point of view of financial law, single – shareholder limited liability company is not effective, because profits of such shareholder which the company obtains shall be doubly taxed.

Lets deal with the problem of change of act of association in limited liability company, this can be understand in two ways:

sensu sticto as a change of act of association, or

sensu largo

The first meaning is having regard to only single – shareholder limited liability companies, and the second, to all remaining companies.[7].

The problem of amendment to articles of association is governed by CCC in articles 225 – 265, but there’s lack of provisions which directly govern problem of amendment to act of association sensu stricto. It seems that provisions on amendment of articles of association shall apply mutatis mutandis.

  1. Zaliwski stated that, shareholder of single – shareholder limited liability company, who acts as general meeting is entiteled by all rights (according to CCC). Feature of acting the only shareholder is that provisions according to difference of representations causing obtaining of proper majority, shall not apply. That’s why difference of representations shall be replaced by representation of the only shareholder[8].

Lets look for similarities and differences between amendments to act and articles of association.

  1. Articles of association as well as act of association shall be made in the form of a notarial deed (art. 157 § 2 )[9], the same amendment to the act and articles of association (art. 255 § 3)[10].

In case of amendment to articles of association, shareholders coming to a notary, in most of cases, have contents of articles of association, which is later incorporated to a notarial deed. In case of act of association is simpler. The only shareholder coming to a notary, presents him changed act, so that it can be made in form provided by law.

It’s obvious that amendments to act of association is much more simple than amendments to articles of association.

  1. In case of amendments to articles of association very important are provisions on majority of votes, quorum and problems connected with corporation entitlements, which not apply in case of amendment to the act of association.

We have to remember that every amendment to the articles of association for its validity shall require resolution of shareholders and shall be reported in the register (art. 255 § 1), which is made to the registry court.

There’s a question, if every change of circumstances connected with the company shall require amendment to the act of association? Of course not. Amendments to the act of association shall require changes in matters referred to in art. 157 CCC

It seems that amendment to the articles of association shall require every material change in the company, such changes are not grammar, or just formal changes.

Undoubtedly material change is an increase of the share capital. We know, that the share capital of the limited liability company shall be at least 50 000 zlotys. The supervisory board or the audit committee shall be created in companies whose share capital exceeds 500 000 zlotys and where there are more than twenty – five shareholders.

The share capital may be increased in two ways:

  • in articles of association (art. 257 – 258 CCC)
  • by the amendment to the articles of association (art. 260 CCC).

In case of reduction of the share capital, which is made in accordance with art. 255 § 2, by the management board in accordance with the procedure stipulated in art. 199 § 5, by the force of a resolution and filling in the register.

It’s worth to admit, that in single – shareholder limited liability company shall be created company governing bodies like management board and general meeting.

There are some other similarities and differences between single – shareholder limited liability company and limited liability company sensu stricto. My article concerns only a few problems which are connected with single – shareholder limited liability company. The problem of single – shareholder limited liability company is a very interesting, however sometimes a little bit discussing.