Compliance w spółkach kapitałowych ze szczególnym uwzględnieniem spółek z udziałem Skarbu Państwa
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2024
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pl
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Corporate governance and compliance in state-owned companies are recognized as crucial areas of regulation by the European Commission, World Bank and the OECD. This is because state ownership influences the corporate governance model and compliance obligations within these entities. The main issue of the dissertation is whether the current regulation of compliance duties under Polish law in state-owned companies allows effective protection against non-compliance and levels the playing field with private entities. Despite the separate set of compliance norms included in law acts aimed at these types of companies, the current legal framework raises doubts about the integrity and transparency of decision-making in state-owned companies. This issue is compounded by the specific status of state-owned companies resulting from the supervision exercised over them by the state under the competence of relevant government members, along with the Prime Minister, who both supervise these companies and act as regulators for such companies. To reduce the risk of being used as a pretext for political purposes by a party or a group, the implementation of the public interest in state-owned companies cannot exclude the application of corporate governance principles and should be guaranteed in the company's statute or articles of association.
The aim of the study is to identify compliance norms and determine areas of non-compliance risk with legal regulations to assess the significance of compliance in state-owned companies. The scope of the thesis includes compliance norms (soft law and legislative) directed at capital companies, with a particular focus on those applied to state-owned and legal characteristics of state-owned companies, including the specifics of conducting business activities, requirements regarding their bodies, and principles of ownership supervision. The research attempted to apply selected sources of compliance obligations to companies with a unique ownership tructure due to state involvement. Given the dual source of law regarding the state economic activities (dominium), i.e., those applicable to all capital companies and those forming the system for state-owned companies, an in-depth analysis combining both categories was necessary to fully illustrate the complex legal architecture. Analyzing compliance norms sources allowed for the identification of distinguishing features of these norms.
The entity responsible for identifying compliance norms at the company level is the compliance unit and management. An effective compliance management system enables the prevention of abuses and violation of law. In the case of state-owned companies, it also creates equal market rules compared to private entities. Despite available regulatory tools for implementing compliance management system (CMS) in these companies, they have not been utilized so far. One solution based on the existing regulations is to issue by the Prime Minister a document of best practices for compliance in state-owned companies. Therefore, the study suggests the need to establish an obligation to implement a compliance system in state-owned companies either through 1) best practices established by the entity responsible for coordinating the exercise of state rights in companies (the Prime Minister), 2) as a provision in the State Property Management Act, or 3) as an obligation in the Companies Code applicable to all qualifying capital companies. The study formulates recommendations for future legislative reforms in this area (de lege ferenda).
To achieve its objectives the thesis is divided into five chapters. The first chapter introduces the research topic, justifies its selection, specifies research questions and hypothesis, outlines the structure and research methods used, as well as lists the literature and main legal sources. The second chapter discusses key terminology and essential aspects of compliance, such as its definition, types of compliance activities, and its importance for organizational functioning. The third chapter presents the legal basis of compliance norms in companies and outlines the complex network of Polish and international regulations defining companies' obligations in this regard. The fourth chapter provides legal justification for distinguishing state-owned companies among commercial companies and discusses the specifics of compliance activities in state-owned capital companies. Finally, the fifth chapter conducts a comparative study on legal norms regarding the obligation to establish a compliance management system in stateowned companies in two selected jurisdictions: French and American, as well as analyzes the regulatory gap in compliance regulations concerning state-owned companies. In these countries the obligation to establish compliance management system results from sources specific to a given system and depends primarily on the size of the enterprise and whether the company is listed on the stock exchange.
The dissertation concludes the research on compliance systems and sources of compliance norms, detailed regulations on legal compliance obligations, and relates them to ownership supervision of Polish state-owned companies. The attempt to identify compliance obligations in state-owned companies arises from two legislative and political factors: gradual reforms in state commercial activity worldwide due to economic crises and the increasing number of compliance and regulatory due diligence obligations for all commercial companies - a result of public expectations regarding business responsibility for actions affecting corporate governance, labor, human rights, the environment, and climate change.
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Z. Staniszewska, Compliance w spółkach kapitałowych ze szczególnym uwzględnieniem spółek z udziałem Skarbu Państwa [rozprawa doktorska], Warszawa 2024.