The multiplicity of ICT systems within the meaning of the Act on the National Court Register and the lack of interoperability

These consequences, consisting in the refusal to amend the entry in the register of entrepreneurs experienced by the party, are all the more unacceptable in a democratic state governed by the rule of law, because it was solely the citizen, a participant in the proceedings, who was burdened in full with the consequences of technical failures attributable to the Minister of Justice.

Introductory remarks.

One of the fundamental premises underlying the functioning of the National Court Register (hereinafter: the Register) is its public, open, and generally accessible character for participants in commercial transactions, as well as two legal presumptions, namely the presumption of awareness of the entry and the presumption of the truthfulness of the entry, established in Articles 15 to 17 of the Act of 20 August 1997 on the National Court Register 1, within the meaning of Article 234 of the Code of Civil Procedure.

In this context, the importance of disclosing company data in the Register and its accuracy carries not only significant business relevance, facilitating commercial transactions, but also specific consequences for company shareholders or members of the governing bodies of capital companies, connected with their liability for damages for reporting false data and for failing to report mandatory data, as well as consequences related to potential compulsory enforcement proceedings.

In the course of proceedings to amend the Register, the applicant is entitled to file an application with the Register through any ICT system of their choosing (S-24 or the Court Registers Portal), provided that the ICT system has the appropriate functionality.

The facts of the case.

The limited liability company (hereinafter: the Company) is a company whose articles of association were concluded using a model template in the S-24 ICT system in October 2017.

Throughout the entire period of its operation up to December 2022.

The Company amended its articles of association or adopted the relevant resolutions exclusively within the S-24 ICT system.

On the basis of a resolution of the Company's Extraordinary General Meeting of Shareholders of December 2022, all of the Company's shareholders unanimously resolved to consent to the Company's acquisition, from one of the Company's shareholders, of all the shares held by that person, for the purpose of their redemption, with the consent of that shareholder and for consideration.

The basis for adopting the resolution described in the preceding sentence was one of the provisions of the Company's articles of association, in conjunction with Article 199 paragraphs 1 and 2 and Article 200 paragraph 1 of the Commercial Companies Code.

Subsequently, during the session of the Company's Extraordinary General Meeting of Shareholders, the shareholders ordered a recess in the proceedings in order to conclude an agreement for the acquisition of the Company's own shares, between the Company and a shareholder of the Company.

The agreement between the Company and the Company's shareholder was concluded using the share sale agreement template made available in the S-24 ICT system and bearing a qualified electronic signature and an electronic signature verified by the Trusted Profile, respectively by the Company's proxy authorized to conclude the agreement and by the Company's shareholder.

Within a few days of holding the Company's Extraordinary General Meeting of Shareholders and concluding the agreement for the Company's acquisition of its own shares, the Company's professional attorney applied to the Commercial Division of the National Court Register at the District Court for Wroclaw-Fabryczna in Wroclaw with an application to amend the entry in the register of entrepreneurs maintained for the Company.

This amendment was to cover the information on shareholders and consisted in the removal of the shareholder whose shares had been acquired and redeemed.

The application was filed via the ICT system, the Court Registers Portal (hereinafter: PRS).

The choice of the PRS ICT system was made by the Company's attorney due to the functional shortcomings of the S-24 ICT system, which do not allow files prepared by the Company and bearing qualified electronic signatures and an electronic signature verified by the Trusted Profile to be attached to the application.

The relevant documents and proof of payment of fees were attached to the application.

Furthermore, in performance of the agreement to acquire its own shares for the purpose of their redemption, the Company paid the shareholder the price, by way of consideration for the redemption of the own shares.

As a result, the agreement was effectively performed, of which the court was also informed.

Neither any of the Company's shareholders nor the Company contested the transaction carried out.

In response to the application of the Company's attorney, the court called on the Company to remedy the deficiencies in the application by "attaching to the application an electronic copy of the share sale agreement for the purpose of redemption, in written form with notarially certified signatures, concluded between the Company's shareholder and the Company." In response, the Company's attorney argued that, in accordance with Article 129 paragraph 2(1) of the Code of Civil Procedure, the document of the agreement on the disposal of the Company's shares concluded between the Company's shareholder and the Company, placed in the ICT system by the legal counsel acting in the case, constitutes an electronically authenticated copy of that document.

The authenticated copy of the agreement confirms that the parties to the agreement effectively exchanged declarations of intent within the framework of the share disposal agreement template made available in the ICT system.

Furthermore, he emphasized that Article 180 paragraph 2 of the Commercial Companies Code allows shareholders of companies whose articles of association were concluded using a model template to conclude an agreement on the disposal of shares in the company using a template of such an agreement, by exchanging declarations within the framework of an electronic, trusted, or personal signature.

In response to the letter from the Company's attorney, the court again called on the Company to remedy the substantive deficiencies of the application by "attaching to the application filed in the PRS system the share sale agreement for the purpose of their redemption, in written form with notarially certified signatures, concluded between the Company's shareholder and the Company, or by demonstrating that the legal act consisting in the conclusion of the share sale agreement between the Company's shareholder and the Company was performed in the S-24 system, given the absence of such an application for the entry of amendments in the S-24 system concerning the above-indicated Company, within 7 days of the date of service of the summons, under pain of refusal of the entry." In response, the Company's attorney attached proof of the performance, in the S-24 ICT system, of the legal act consisting in the conclusion of the share disposal agreement between the Company's shareholder and the Company, in PDF and XML format, certified as true copies by the Company's attorney.

Furthermore, the Company's attorney informed the court that he was able to give the court access to the Company's profile in the S-24 system in order to confirm the fact that the share disposal agreement had been concluded.

Ultimately, in February 2023 the court dismissed the Company's application to amend the entry in the Register covering the above-described change, indicating as the principal ground for the ruling the failure to file the relevant application in the S-24 system.

The court indicated that: "The document submitted in the case in the form of a printout from the S-24 system of the share disposal agreement of 23 December 2022 cannot constitute a basis for making amendments in the register.

This is because that document was not submitted via the proper S-24 ICT system, but via the PRS ICT system." Furthermore, the court questioned whether the submitted share disposal agreement could be verified outside the S-24 system where documents are filed in the PRS system: "The applicant did not demonstrate the performance, in the S-24 system, of the legal act consisting in the conclusion of the share sale agreement between the Company's shareholder and the Company (...).

In the present case, where a document is filed outside the S-24 ICT system, it is not possible to establish whether the above-indicated document (printout) bears a qualified electronic signature, a trusted signature, or a personal signature." Analyzing the content of the court's order, it should be noted that the court indicated, as the principal ground for dismissing the Company's application, two elements: the failure to file, through the S-24 system, an application containing the share disposal agreement between the Company's shareholder and the Company; and the impossibility of establishing whether the document (printout) of the share disposal agreement between the Company's shareholder and the Company, concluded in the S-24 system, bears a qualified electronic signature, a trusted signature, or a personal signature.

The ICT system appropriate for filing the application.

In the case of limited liability companies whose articles of association were concluded using a model template, in the wording specified pursuant to the Regulation of the Minister of Justice of 14 January 2015 on the specification of templates relating to the limited liability company made available in the ICT system 2, it is possible to dispose of a share using the template of a resolution on the voluntary redemption of a share, made available in the S-24 ICT system.

In such a case, the declarations of the transferor and the transferee should bear a qualified electronic signature, a trusted signature, or a personal signature (Article 180 paragraph 2 of the Commercial Companies Code).

The Company was formed and adopted all its resolutions using model templates in the S-24 ICT system.

Accordingly, the Company was able to exercise the right vested in it and conclude a share disposal agreement on the basis of Article 180 paragraph 2 of the Commercial Companies Code.

The provision cited above was introduced into the Commercial Companies Code by the amending Act of 28 November 2014 amending the Act, the Commercial Companies Code, and certain other acts 3, which, in its current wording, entered into force on 1 April 2016.

The current wording of the second sentence of Article 180 paragraph 2 of the Commercial Companies Code, on the other hand, results from yet another amendment made by the Act of 6 December 2018 amending the Act on Identity Cards and certain other acts 4, which, in its current wording, entered into force on 4 March 2019 and provides: "In the case of a company whose articles of association were concluded using a model template, the disposal of shares by a shareholder is also possible using a template made available in the ICT system.

The declarations of the transferor and the transferee shall bear a qualified electronic signature, a trusted signature, or a personal signature." This provision was created when only the S-24 system existed.

At the same time, as of 1 July 2021, another ICT system connected with the Register began operating, namely.

PRS.

In view of the above, it must be concluded that, as of 1 July 2021, there is a dualism of ICT systems used for filing applications with the Register.

The court's reasoning, according to which: "The document submitted in the case in the form of a printout from the S-24 system of the share disposal agreement of 23 December 2022 cannot constitute a basis for making amendments in the register.

This is because that document was not submitted via the proper S-24 ICT system, but via the PRS ICT system," must be regarded as entirely misguided.

This is because it is possible to file applications with the Register through both ICT systems.

This fact follows from Article 6 point 3 of the Act on the National Court Register in conjunction with Article 3 paragraph 1 in conjunction with Article 2 point 4 of the Regulation of the Minister of Justice of 5 December 2022 on applications filed with the Central Information of the National Court Register via the ICT system, as well as copies, extracts, certificates, information, documents, and copies of documents delivered to applicants via that system 5.

These possibilities are, of course, subject to the technical limitations of both systems, namely.

S-24 as well as PRS, which is, however, not the subject of these considerations.

Analyzing the content of the provisions cited, it should be noted that Article 6 point 3 of the Act on the National Court Register refers, as regards the filing of applications, to the Regulation of 5 December 2022.

In accordance with Article 3 paragraph 1 of that Regulation, an application to the Register may be filed only via an account in the ICT system.

The ICT system is defined in Article 2 point 4 of the Regulation of 5 December 2022 as "an ICT system within the meaning of Article 3a of the Act on the National Court Register." In accordance with Article 3a of the Act on the National Court Register, an ICT system is "an ICT system used to maintain the Register, enabling the formation of, and the performance of other activities in relation to, companies whose articles of association are concluded using a model template made available in that system, as well as the performance of activities in registration proceedings in relation to entities subject to entry in the Register, the provision of information from the Register, and access to the registration files.

The Minister of Justice ensures access to the ICT system for the purpose of performing the activities referred to in this provision, as well as the protection of the data collected in the system against unauthorized access, processing, alteration, or loss".

The ICT system referred to in Article 3a of the Act on the National Court Register is therefore both (i) the S-24 system, (ii) the PRS system, and (iii) the central database of the National Court Register.

This fact is confirmed not only by the linguistic interpretation of the aforementioned provision, but also by legal commentary: "The provision under discussion (Article 3a, author's note) uses the term 'ICT system' in the singular, and the provision then specifies the function of that system; however, at present one may speak of several different, separate ICT systems." 6 As a result, the norm of Article 180 paragraph 2 of the Commercial Companies Code does not specify, as the court claimed in its ruling, through which system applications to the Register are to be filed.

On the contrary, Article 180 of the Commercial Companies Code deals only with the manner of concluding the agreement (using a template made available in the ICT system, bearing the relevant signature), and not with the ICT system appropriate for filing the relevant application with the Register.

What is more, in accordance with the cited paragraph 3 subparagraph 1 of the Regulation of 5 December 2022, an application to the Register may be filed via an account in the ICT system by an authorized user following authentication, that is, also through the PRS system.

In the context of the court's further objections, it should be emphasized that the Company presented a copy of the share disposal agreement downloaded from the S-24 ICT system in two formats (.pdf and .xml), authenticated by a professional attorney.

Leaving aside the content of Article 6944a of the Code of Civil Procedure, according to which the electronic certification of a copy of a document by an attorney acting in the case who is an advocate, legal counsel, or counsel of the General Counsel to the Republic of Poland, or the electronic authentication of a copy of the power of attorney granted to such attorney, occurs at the moment that attorney enters the copy of the document or the copy of the power of attorney into the ICT system, reference should be made to paragraph 14 of the Regulation on the specification of templates relating to the limited liability company.

In accordance with paragraph 14 of the Regulation on the specification of templates relating to the limited liability company, "after the signing of a document prepared using a template, information about the signing person, together with an indication of the type of signature, is placed in the document originating from the ICT system." This in turn means that the annotation "signed" appearing on the document (or, as the court would have it, the printout) next to the persons concluding the agreement on the disposal of the Company shareholder's shares to the Company for the purpose of their redemption could have appeared solely as a result of the effective conclusion, in the S-24 system, of the agreement for the Company's acquisition of its own shares.

This agreement was not only concluded but is also stored in the repository of the S-24 system, to which the system operator (the Minister of Justice) does, after all, have access.

No regulation in the legal system in force imposes on a party to the proceedings any obligation to file applications to amend an entry in the Register in a specific ICT system.

On the contrary, one might even venture the thesis that, analyzing the content of the Regulation of 5 December 2022 and the scope of functionality of the ICT systems, the legislator appears to prefer the PRS system.

Similarly, the court's assertion that filing a copy of the share disposal agreement concluded using the share disposal agreement template made available in the ICT system through the PRS system makes it impossible to verify whether that document bears a qualified electronic signature or a trusted signature must be regarded as entirely misguided.

The court's thesis is directly contrary to paragraph 14 of the Regulation on the specification of templates relating to the limited liability company.

Such a document contains the information that the agreement has been signed, the details of the signing person, the date and time the document was signed, and the type of signature.

Lack of interoperability.

In the context of the above considerations, it should be recalled that, in accordance with the Act of 17 February 2005 on the computerization of the activities of entities performing public tasks 7, a public entity (and thus both the courts and the Minister of Justice as regards the Register) uses, for the performance of public tasks, ICT systems that meet the minimum requirements for ICT systems and ensure the interoperability of systems under the rules laid down in the National Interoperability Framework 8.

Interoperability is understood in the aforementioned legal provisions as the ability of various entities, and of the ICT systems and public registers they use, to cooperate in order to achieve mutually beneficial and agreed objectives, taking into account the sharing of information and knowledge through the business processes they support, carried out by means of data exchange via the ICT systems used by those entities.

In accordance with paragraph 16 of the Regulation on the National Interoperability Framework, ICT systems used by entities performing public tasks are equipped with hardware components or software enabling the exchange of data with other ICT systems by means of communication and encryption protocols 9.

In summary, public entities are required by the provisions of law to achieve the interoperability of public registers (and the Register is such a register).

The complete lack of interoperability between the S-24 and PRS systems is a serious failing on the part of the Minister of Justice, who is responsible for both ICT systems, for which, however, the participant in the proceedings cannot under any circumstances be held responsible.

Conclusion.

The court's theses, according to which the applicant is required to file an application to the Register in a specific ICT system, are entirely unfounded.

The theses presented by the court do not follow from any provision of law.

What is more, on the contrary, the interpretation of Article 6 point 3 of the Act on the National Court Register in conjunction with Article 3 paragraph 1, in conjunction with Article 2 point 4 of the Regulation of 5 December 2022, indicates that it is possible to file applications both through the S-24 system and through PRS.

If the court really does not have access to a given company's profile in the S-24 system, then the participant in the proceedings cannot bear the negative consequences of the lack of interoperability between the S-24 and PRS systems, systems created for the very same purpose, namely the filing of applications with the Register, and maintained by one and the same public administration authority (the Minister of Justice).

Article 180 paragraph 2 of the Commercial Companies Code is not fully adapted to the situation of the dualism of ICT systems that has arisen, and as a result a peculiar legal gap has emerged as regards applications to the Register, which is the subject of the dispute with the court.

The author wishes only to note in passing that the fact of the effective conclusion of the agreement was confirmed by the appellant's attorney and by the notary drawing up the copy of the concluded agreement, while the appellant's shareholders performed the agreement and confirmed the fact of the redemption of the appellant's own shares by submitting the relevant declaration in the form of a new list of shareholders.

As a result, it is also impossible to determine what legal interest or what entity the court sought to protect in dismissing the Company's application.

In view of the above, IT work aimed at achieving interoperability between the S-24 system and the PRS system appears necessary, in such a way that the PRS system can be fed with data from the S-24 system.

Alternatively, expanding the functionality of the PRS system to include the functionalities currently available in the S-24 system is also an option.

Another possibility is to amend the Act on the National Court Register and the regulations issued under that act in such a way as to provide for a clear division between the two ICT systems, and to specify the activities for which each of the systems may be used. ______________________________________________________________________________________ Consolidated text:

Journal of Laws of 2023, item 685, as amended; hereinafter referred to as: the Act on the National Court Register.

Consolidated text:

Journal of Laws of 2019, item 1483; hereinafter referred to as: the Regulation on the specification of templates relating to the limited liability company.

Journal of Laws, item 4.

Journal of Laws, item 60.

Journal of Laws, item 2567; hereinafter referred to as: the Regulation of 5 December 2022.

Ł.

Zamojski, in: K.

Osajda (ed.), National Court Register.

Commentary, Warsaw 2022, Article 3a.

Consolidated text:

Journal of Laws of 2023, item 57, as amended.

Regulation of the Council of Ministers of 12 April 2012 on the National Interoperability Framework, the minimum requirements for public registers and the exchange of information in electronic form, and the minimum requirements for ICT systems (consolidated text:

Journal of Laws of 2017, item 2247, as amended); hereinafter referred to as: the Regulation on the National Interoperability Framework.

S.

Kotecka, in: A.

Gryszczyńska (ed.), Public registers.

Openness and interoperability, Legalis/el.

Author: Michał Skrzywanek Have a question?

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