The problem of fines in compulsory proceedings

in the context of failure to submit the financial statement

Persons authorized to represent entities subject to entry in the National Court Register (including companies, partnerships, foundations, etc.) obliged – as executives of these entities within the meaning of Article 3 clause 1 point 6) of the Accounting Act[1]  – to submit annual financial statements to the Repository of Financial Documents (hereinafter: “Repository”), as well as other documents, such as resolutions approving financial statements, often find out about their failure to fulfill this obligation as soon as they receive notification from registry court on initiation of compulsory proceedings against them.

From the contents of such a notification, one can read the ominous threat of imposing a fine on its recipient, if the relevant documents are not submitted to the Repository within 7 days of its receipt. Moreover, the addressee learns that this fine may (and probably will) be repeated if the obligation incumbent on the recipient is not met within the prescribed period. [2]

Does this mean that once a fine has been imposed in the course of compulsory proceedings, it cannot be evaded?

The answer is negative. If the registry court imposed a fine during compulsory proceedings, there still is a chance that it will be overruled.

First of all, care shall be taken to ensure that compulsory proceedings are discontinued. Most often, the premise for such discontinuance is the fulfillment of the obligation which the court requires to be fulfilled (e.g. by submitting the financial statement for a given financial year) – for this makes any further proceedings pointless.

However, there are situations in which a person against which compulsory proceedings are pending, is unable to fulfill such obligation for reasons beyond his/hers control. This may happen, for example, when the registry court calls for submitting to the Repository a document that does not exist (e.g. a resolution approving the financial statement for a given financial year has not been adopted, or the person against whom compulsory proceedings have been initiated, is no longer authorized to represent given entity, and yet still appears in the Register as acting in such capacity).

In such a case, the legal basis for discontinuing compulsory proceedings may be Article 24 clause 4 of the Act of 20 August 1997 on the National Court Register, according to which the registry court discontinues compulsory proceedings, if the circumstances of the case show that it will not lead to the fulfillment of the obligation.

To this end, the court should be informed on circumstances that prevent compliance with the obligation. Although the court is obliged in such a case to discontinue the proceedings ex officio – for purely practical reasons, it is useful to indicate the legal basis that justifies its discontinuation (i.e. the abovementioned Article 24 clause 4 of the Act on the National Court Register).

In accordance with art. 1052 of the Code of Civil Procedure, discontinuation of coercive proceedings leads to the cancellation of fines not paid by that time. From the above it follows, that – perhaps contrary to intuition – the payment of the fine imposed by the court is usually not the most reasonable action (the amount of the fine paid will not be reimbursed in that case), and the person obliged should rather create a situation enabling the registry court to discontinue the pending proceeding.

These actions should be taken immediately, because after the imposition of a fine by the court, even once, there is a threat, that the court will initiate enforcement proceeding against the person obliged, aimed at the fine’s collection.

And in order to identify actions that shall be taken in such a situation, prudence calls for taking a professional, legal advice.

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[1] “Executive” means a member of the management board or another management body, and if the body is multi-person – members of that body, excluding proxies appointed by the entity. In the case of a general partnership and a civil partnership, the executives are considered to be the partners conducting the company’s affairs, in the case of a partner company – the partners conducting the partnership’s affairs or the management board, and in relation to a limited partnership and limited joint-stock partnership – general partners conducting the partnership’s affairs. In the case of a natural person conducting business activity, the executive of the entity shall be considered that person; this provision shall apply accordingly to persons practicing free professions. As the executive is also considered the liquidator, as well as the trustee or administrator appointed in the restructuring proceedings and the succession administrator, referred to in the Act of 5 July 2018 on the succession management of a natural person enterprise, or a person referred to in art. 14 of this Act, which made the notification referred to in art. 12 paragraph 1c of the Act of 13 October 1995 on the principles of recording and identifying taxpayers and payers (Dz.U. z 2019 r. poz. 63);

[2] In accordance with art. 1052 of the Code of Civil Procedure, in one decision the court may impose a fine of no more than fifteen thousand zlotys, unless imposing a fine twice has proved ineffective. However, the total amount of fines in the same case may not exceed one million zlotys.

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