Jednoosobowe spółki Skarbu Państwa. Zagadnienia ustrojowe

Abstract

Only limited liability companies and joint stock companies can be sole shareholder companies of the State Treasury. Consequently, the sole shareholder company of the State Treasury is always a legal entity within the meaning of Article 33 of the Civil Code.

The sole shareholder company of the State Treasury may only be established where a provision allows it to be “incorporated”. These provisions are, with the exception of Article 158(1) and (2) of the Commercial Code, provisions of a special nature contained either in the Commercial Code (Article 308 sentence 3) or in special acts, the most important of which are the Acts on Privatisation of State Enterprises (Articles 5, 6 and 16) and the Banking Law (Article 86[2]). When establishing sole shareholder companies of the State Treasury, the rule is decisive participation of the chief bodies of state administration (Article 5(1) and Article 6(1) of the Act on Privatisation of State Enterprises and Article 36[2] of the Banking Law). Sole shareholder companies of the State Treasury are often created by normative acts (acts or regulations) containing norms of an individual nature.

Sole shareholder companies of the State Treasury own the property allocated to them at the time of their establishment or acquired later. This property is state property within the meaning of Article 44[2] § 1 of the Civil Code.

The provisions of the Commercial Code on the bodies of a limited liability company and a joint-stock company apply directly to the bodies of sole shareholder companies of the State Treasury, unless special provisions introduce exceptions thereto. In practice, however, the functioning of the bodies of these companies deviates significantly from the principles of the Commercial Code. Officials of the ministries to which the sole shareholder company of the State Treasury in question is subordinated for industry reasons act as the shareholders’ assembly and the general meeting of shareholders. Ministries frequently intervene in the day-to-day operations of the sole shareholder companies of the State Treasury either directly as representatives of the sole shareholder in the form of a shareholders’ meeting or the general meeting of shareholders, or through supervisory boards entirely dependent on them. These interferences in practice severely limit the independence of sole shareholder companies of the State Treasury and, consequently, their separateness from the State Treasury and other state legal entities. This leads to a refocusing of the functions of the empire and the functions of the dominion in the hands of the government economic administration bodies.

Sole shareholder companies of the State Treasury are most often established as a result of commercialisation, i.e. the transformation of a state-owned enterprise or other state-owned legal entity, such as a state-owned bank, into a company. By assumption, this would be the first step towards the subsequent privatisation of this company. Privatisation should take place within a relatively short statutory timeframe. In practice, these deadlines are often not met. The legal form of sole shareholder companies of the State Treasury, instead of being temporary, is also beginning to become a permanent form; sole shareholder companies of the State Treasury created outside the privatisation process are most often their target legal form, and in any case their imminent privatisation is not envisaged. Finally, one can note attempts to use the form of sole shareholder companies of the State Treasury to etatisation of previously commercialised state entities.

Such intentions should be regarded as contrary to the desire to develop a free market economy in Poland.