Difficulties in the liquidation of shares in a limited liability company by the trustee
On November 10, 2023, the provisions of the Act of September 15, 2000 – Commercial Companies Code (hereinafter referred to as “KSH”) entered into force, introducing a ban on offering to an unspecified recipient the purchase of existing or taking up new shares in a limited liability company. Its violation results in criminal liability and may even result in imprisonment. New regulations were introduced by the Act on crowdfunding for business ventures and assistance to borrowers. Their aim was to exclude the possibility of limited liability companies obtaining capital through crowdfunding. It turns out, however, that they may also have additional consequences – in the area of limiting the ability of the trustee to liquidate such components of the bankruptcy estate.
Prohibition on making an offer to purchase shares
Amended Art. 1821 of the Commercial Companies Code introduces an absolute ban on directing an offer to purchase shares in a limited liability company and promoting it by directing advertising or other forms of promotion to an unspecified recipient. There is therefore no doubt that currently an offer to purchase shares can only be addressed to a specific, precisely defined person who will be entitled to accept the offer.
Due to the above, advertising and any other promotion of such offers is also prohibited, including the publication of announcements with the text “I will sell 30% of shares in Spółka X, a limited liability company worth PLN 50,000.” Violation of the above prohibitions is punishable by a fine, restriction of liberty or imprisonment for up to 6 months (Article 5951 of the Commercial Companies Code).
The ban covers bankruptcy and restructuring proceedings
The introduced ban on directing the offer of sale of shares to unidentified entities is a generally applicable regulation. The act introducing the ban does not provide for any exclusions in bankruptcy or restructuring proceedings. Therefore, both judicial and extrajudicial bodies in these proceedings are bound by the advertising ban. This also includes a judge-commissioner determining the conditions of sale of a given asset.
We cannot claim that the provisions of bankruptcy or restructuring law constitute some extraordinary over-regulation of an exceptional nature and implicitly excluded from the generally applicable legal system. Each time the legislator intends to treat, for example, a trustee differently from other market participants, the issue is regulated separately in the relevant provisions. An example is the Act on the formation of the agricultural system, which clearly excludes restrictions on the group of buyers of agricultural real estate in the event of its sale in the course of bankruptcy (including restructuring proceedings and enforcement).
Excluding the prohibition on advertising the sale of shares by a trustee or manager will therefore require the intervention of the legislator. Until then, the indicated entities are bound by the applicable prohibition regarding sending an offer of sale of shares to unspecified entities.
