An anonymous shareholder in a limited liability company
Under the Act on the National Court Register, the register of entrepreneurs discloses those shareholders of a limited liability company who hold more than 10% of the shares in the share capital. The company’s management board is nevertheless required to keep a list of shareholders and file it with KRS. This list is placed in the company’s registration files, which are publicly available. In addition, where a limited liability company has only one shareholder, that shareholder’s residential address must also be reported to KRS. The shareholder’s address will not be visible in KRS extracts, but anyone who chooses to inspect the company’s registration files will be able to find it.
An anonymous shareholder in a joint-stock company
In a joint-stock company, there is no obligation to disclose shareholders’ details in the register of entrepreneurs, regardless of whether they hold registered or bearer shares. Such an obligation exists only where the joint-stock company has a single shareholder. The management board is required to keep a share register, but only the details of shareholders holding registered shares are recorded in it. Anonymity is ensured by acquiring bearer shares – the shareholders are not named even on the share documents, which makes it very difficult for third parties to establish the identity of the holders of such shares.
An anonymous partner in a limited partnership
In the case of a limited partnership, the details of all partners are entered in the register, both general partners and limited partners. Anonymity can be achieved where both the sole general partner and the sole limited partner are foreign companies.
Fiduciary (nominee) arrangements in Polish companies
There is, however, a legal solution that gives shareholders of commercial companies anonymity: the institution of fiduciary (nominee) arrangements. It is not directly regulated by the Civil Code, but its use is permissible under the rules on freedom of contract or on contracts similar to a mandate agreement. A fiduciary arrangement is a contract between the principal (the person who wishes to remain anonymous) and the fiduciary, or nominee (the person shown in the registers but in fact dependent on the principal and acting on their behalf). The parties contractually agree the terms of the remuneration due to the nominee. The principal participates in the company indirectly and confidentially, in terms of both property rights and corporate rights. The agreement may remain confidential. It should be drafted so that it does not contain any provisions conflicting with the company’s articles of association. The fiduciary agreement may provide for contractual penalties if the nominee fails to follow the principal’s instructions.
A fiduciary arrangement is an advantageous solution for investors who want to keep their involvement in a company private, allowing them to act as a “silent partner”. It can also be an effective way to get around a non-compete restriction. Undoubtedly, however, due care must be taken when drafting the contractual provisions, in order to protect one’s interests as effectively as possible.
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