A new reporting obligation for Supervisory Boards in companies, related to the closing of the 2022 fiscal year, has emerged as a result of the October 2022 holding law. The amendment requires Supervisory Boards to prepare an additional report on their activities for the fiscal year. And this is not the end of the obligations.
Subject of the report
In addition to the Supervisory Boards’ previous obligation to prepare and submit to the Shareholders’ Meeting (General Assembly) an annual written report on:
- evaluation of the management board’s report on the company’s activities and financial statements for the past fiscal year,
- evaluation of the management board’s motions regarding the distribution of profit or coverage of loss,
The October 2022 amendment to the CCC introduced the obligation to prepare a written report on the activities of the Supervisory Board for the fiscal year (already for 2022 if it coincides with the calendar year). The scope of such a report was indicated only for joint stock companies in Article 382 § 3(1) of the CCC. For limited liability companies and simple joint-stock companies, it is not specified by law, but the aforementioned provision can serve as a reference. The report is not subject to filing with the registry court, but joint-stock companies and PSAs are required to make it available to shareholders no later than 15 days before the General Meeting (Article 68 of the AoR).
The Supervisory Board is responsible for contacting the auditor
If the company’s financial statements are subject to audit by an auditor (this applies to all joint-stock companies and other types of companies meeting the requirements of Article 64(1)(4) of the AoR), the Supervisory Board is required to ensure that the auditor or a representative of the auditing firm attends a meeting of the Supervisory Board at which he will present the audit report and answer questions. Such an obligation should be provided for in the contract with the auditor.
Possible legal consequences and obligation to take minutes
Failure to fulfill the above duties may give rise to liability for damages. Members of the Supervisory Board are required to ensure that the financial statements meet statutory requirements. They are liable to the company for damage caused by an act or omission in violation of both this obligation (Article 4a of the Accounting Act) and the others on general principles (Article 293 of the Companies Act).
At the same time, it should be remembered that both resolutions of the Board of Directors and the Supervisory Board should be minuted. The minutes should include:
- the agenda,
- the names of the members of the body present,
- the number of votes cast for each resolution,
- dissenting opinions occurring, along with their motivation, if any.
The minutes shall be signed by at least the member of the body conducting the meeting or managing the vote, unless the articles of incorporation or bylaws of the body provide otherwise.