Draft Amendment to the Commercial Companies Code – New Holding Company Law
On December 3, 2025, the Civil Law Codification Commission published a draft amendment to the Commercial Companies Code providing for a comprehensive reform of the regulations governing corporate groups. The draft proposes repealing the provisions on holding company law (Articles 21¹–21¹⁶ of the Commercial Companies Code) that have been in force since 2022 and replacing them with a new, more framework-based regulatory model.
According to the explanatory memorandum to the draft, the current provisions are rarely applied in practice, are overly formalized, and do not correspond to the realities of how corporate groups operate.
The proposed regulation constitutes a systemic change to the holding company law model in Poland.
New definition of a group of companies
The draft introduces a modified definition of a group of companies.
A group of companies is deemed to consist of a parent company or another controlling entity and its subsidiary or subsidiaries if:
- they engage in ongoing economic cooperation,
- they are subject to integrated management mechanisms,
- they operate on the basis of a common, long-term strategy.
This definition is functional in nature, meaning that the classification of a given structure as a group of companies may result not only from capital ties but also from the actual manner of management and conduct of business.
Integrated management instruments may be understood, in particular, as mechanisms for coordinating the activities of companies within the group, such as the centralization of specific management functions, shared services centers, the adoption of a common ERP-type IT system for the group, such as SAP, cash pooling, etc.
In practice, the existence of a common long-term strategy may be established on the basis of various documents and actual activities—e.g., the group’s strategic plans, budgets, or investment programs covering more than one company. It is particularly easy to establish this criterion with respect to public companies, which often announce common multi-year strategies.
The functional nature of this definition may raise doubts in the case of investment structures where the links between companies are primarily of a capital nature. In particular, in the case of financial holding companies or structures created by private equity funds, establishing the existence of a “common long-term strategy” and “integrated management tools” may be less obvious in practice. In practice, this may mean that it will be necessary to assess on a case-by-case basis whether a given investment structure constitutes merely a collection of portfolio companies or functions as an effectively managed group of enterprises.
The universal nature of the proposed regulation (opt-out instead of opt-in)
As can be seen from the above, the key change is the departure from the existing opt-in model, under which the application of the provisions on groups of companies required resolutions to be adopted by the companies participating in the group. The draft provides that the provisions on corporate groups will apply by operation of law to all structures meeting the statutory definition of a corporate group. Consequently:
- it will not be necessary to adopt resolutions regarding participation in the group,
- nor will it be required to enter information about the corporate group into the National Court Register.
In practice, compliance with the statutory requirements for the existence of a group of companies may be assessed ex post, particularly in the context of litigation, e.g., in disputes between minority shareholders and the company or the parent entity (concerning, among other things, compensation payments or the right to withdraw from the company), as well as in disputes with creditors of a subsidiary in the event of its insolvency.
Acting in the Interest of the Group of Companies
The draft explicitly legitimizes acting in the interest of the group of companies.
The governing bodies of a subsidiary will be able to act in the interest of the group, even if this may lead to adverse consequences for the subsidiary itself in the short term. However, this is subject to certain conditions:
- maintaining a balance of interests among the companies over a reasonable period (not exceeding 5 years); in practice, this may mean, for example, a situation in which a subsidiary incurs costs or forgoes part of its profits during a given period in connection with the implementation of the group’s overall strategy (e.g., by selling goods or services to another group company on less favorable terms), but subsequently obtains a corresponding benefit – e.g., through obtaining preferential financing, the transfer of valuable assets, or participation in more profitable projects within the group;
- no limitation on the benefits that shareholders can reasonably expect from their participation in the company – this refers to economic benefits arising from participation in the company, such as the opportunity to share in the company’s profits or an increase in the value of its shares. In other words, temporary “adverse effects” on the subsidiary itself must not lead to a reduction in the benefits to the shareholders below a reasonable minimum;
- no risk of the company’s insolvency.
Instruments for the Protection of Minority Shareholders
The draft provides for several instruments to protect minority shareholders of subsidiaries.
A shareholder representing at least 5% of the total number of votes in the subsidiary will be able to apply to the registry court to appoint an audit firm to examine compliance with the principles of acting in the interest of the group of companies. This audit will focus in particular on the relationship between the subsidiary and the parent company, as well as the impact of decisions made within the group on the subsidiary’s financial situation, including the compliance of such actions with the statutory requirements for acting in the interest of the group of companies. It should be noted that the draft does not provide for instruments compelling group companies to cooperate with an auditor appointed by the registry court.
In the event of a violation of the permissible limits of acting in the interest of the group, a minority partner or shareholder will be able to demand:
- an order by the court for compensatory relief (understood as compensation—for example—for a loss in the fair value of shares or for the failure to receive a dividend despite the subsidiary generating a profit).
- or
- a court ruling ordering their withdrawal from the company (the so-called group withdrawal right).
An action for withdrawal is brought exclusively against the subsidiary in which the shareholder holds an interest. This constitutes a departure from the general (“non-group”) right of withdrawal, in which the action is also directed against the other shareholders; a separate Alert will be devoted to this topic.
If the action is granted, the court orders the partner’s withdrawal from the company and the obligation to repurchase his or her shares for appropriate compensation. The repurchase is carried out by the company on behalf of the remaining partners. The company then transfers these shares to the partners remaining in the company, in proportion to the shares they hold.
The parent company or another controlling entity bears joint and several liability with the subsidiary for payment of the redemption price. This liability applies to both entities that directly and indirectly control the subsidiary.
Liability of the Parent Company
The draft also introduces liability mechanisms for controlling entities.
A parent company may be liable for damages suffered by the creditors of a subsidiary in the event of the subsidiary’s insolvency if such insolvency is related to a violation of the principles of acting in the group’s interest.
Option to opt out of the regulations
The draft allows for the exclusion of the application of provisions regarding corporate groups in relation to a specific subsidiary through appropriate provisions in the articles of association or the company’s bylaws.
In such a case, partners will not be able to use the protective instruments provided for corporate groups. At the same time, the draft introduces a general right for a partner or shareholder to withdraw from the company for good cause, which partially compensates for the lack of group-specific mechanisms.
Key risks of the proposed reform
- Uncertainty regarding the existence of a corporate group
The draft provides for the automatic (ex lege) application of provisions on corporate groups, without an entry in the National Court Register (KRS) or a formal decision on participation in the group. In many cases, only a court will determine whether a given structure constitutes a corporate group. This may lead to disputes regarding the liability of the parent entity, the admissibility of acting in the group’s interest, and claims by minority partners.
- Increased risk of parent company liability
The draft expands the liability of parent companies, including toward creditors of a subsidiary and in connection with claims by minority shareholders. It also introduces joint and several liability in the buyout of shares. In practice, this may increase the number of disputes within holding company structures.
- Risk of strategic use of the right of withdrawal
The new right to withdraw from a company may be used by minority shareholders as a tool for exerting pressure in corporate disputes. This may lead to forced buyouts of shares and disputes regarding their valuation.
Summary
The proposed amendment to the Commercial Companies Code changes the existing regulatory model for holding company law in Poland. In particular:
- it introduces the universal application of provisions regarding groups of companies,
- it permits acting in the interest of a group of companies,
- it expands the instruments for protecting minority shareholders,
- it introduces new grounds for the liability of parent entities.
The proposed provisions may significantly impact the management of capital groups and the level of legal risk associated with the operation of holding structures.
KONTAKT
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