One of the basic issues related to the family foundation is the family foundation registry. This article will present information on the registration of family foundations and the data subject to registration.
General information about the register of family foundations in Poland
According to the Law on Family Foundations:
- The register of family foundations is public.
- Anyone has the right to obtain certified copies, extracts, certificates and information from the register of family foundations.
- Each family foundation has a separate registration file that includes records of proceedings conducted by the registry court.
- The opportunity to review the registration files is available to the founder, member of the family foundation’s body, beneficiary and person with a legal interest – in the presence of an employee of the registration court.
- The founder, member of the family foundation’s body, beneficiary and person with a legal interest may obtain certified copies, extracts, certificates and information from the registration files.
Application to the register of family foundations in Poland and data contained in the application
The person who notifies the family foundation to the registry is the founder. If the family foundation is established by a will, the application to the register is made by the board of directors (the application of the foundation in this case is signed by all members of the board.
The application of a family foundation to the register of family foundations includes:
- the name of the family foundation, its headquarters and address,
- the amount of the founding fund of the family foundation,
- the names and surnames, the PESEL numbers of the members of the board of directors (if no such number is required, the date of birth), and the addresses for service of the members of the board of directors,
- the method of representation of the family foundation,
- if a supervisory board is established in the family foundation, the application shall also include the names and surnames, PESEL numbers of the members of the supervisory board (if there is no obligation to have such a number – date of birth) and addresses for service of the members of the supervisory board,
- the names and surnames, PESEL numbers of the beneficiaries who are natural persons who are part of the assembly of beneficiaries (if there is no obligation to have such number – date of birth) and their addresses for service,
- if the beneficiary is an entity other than a natural person, the notification to the register shall include the name or business name of the entity and REGON identification number, and if the entity is registered in the National Court Register,
- also the KRS number,
- if the founder is authorized to appoint a board of directors, the notification shall also include the name and address for service of the founder,
- the duration of the family foundation, if specified.
Attachments to the application to the register of Polish family foundations
The application of a family foundation to the register of family foundations shall be accompanied by:
- the articles of incorporation of the family foundation and, if the foundation was established by a will, the minutes of the opening and announcement of the will in which the family foundation was established,
- the charter of the family foundation,
- a statement by the founder to contribute property to cover the founding fund in the amount specified in the statute and if the foundation was established by will – a statement by the members of the board of directors that the founding fund will be contributed within two years from the date of registration of the family foundation in the register of family foundations,
- consent to serve as a member of the family foundation’s governing body
- if the composition of the family foundation’s organs does not result from its charter, proof of the establishment of the family foundation’s organs, detailing their composition along with consents to serve as a member of the family foundation’s organ, shall be attached to the application.
Registration in the register of Polish family foundations
A family foundation acquires legal personality upon registration in the register of family foundations. The register of family foundations is maintained by the District Court in Piotrków Trybunalski.
Entry into the register of family foundations consists in entering into the computer system the data contained in the decision of the registration court immediately after its issuance. The entry is made as soon as the data is posted in this register.
Entry in the register of family foundations is made upon application, unless a special provision provides for ex officio entry.
For example, an ex officio entry concerns:
- the addition of the designation “in bankruptcy” to the name,
- mention of the appointment and dismissal of the superintendent and indication of the identification data of this superintendent,
- information about the opening and completion of liquidation, the establishment of management and receivership,
- if, ex officio, a liquidator, administrator or receivership has been appointed or established, the information about the opening and completion of liquidation, the establishment of management and receivership and the identification data of the liquidator, administrator, receivership and the method of representation of the family foundation in liquidation shall also be entered ex officio.
Application for entry in the register of family foundations in Poland
An application to the register of family foundations is an application for entry in this register.
An entry in the register of family foundations is also a deletion, amendment and correction.
The registry court examines whether the documents attached to the application for entry in the register of family foundations fit into the requirements prescribed by law. First of all, the registration court examines:
- whether the data indicated in the application for entry in the register of family foundations in terms of names, surnames, PESEL numbers, names or companies, NIP and REGON identification number are true.
- Whether the rest of the reported data is in accordance with the actual state, if it has reasonable doubts in this case.
The application for entry in the register of family foundations shall be submitted on an official form. The models, manner and places of making the official form available in accordance with the Law on Family Foundations shall be determined by the Minister of Justice by decree, taking into account the requirements provided for pleadings and the need to ensure the safety and certainty of business transactions.
The application for registration of persons representing the entity entered in the Family Foundations Register, liquidators and attorneys must be accompanied by statements of such persons including consent to their appointment and their addresses for service.
The exception is when:
- the application for entry is signed by a person who is subject to entry or who has given a power of attorney to submit the application for entry,
- the application for entry is signed by a person who consented to the appointment in the minutes of the meeting of the family foundation’s body appointing the person or in the family foundation’s charter.
If the address for service of the persons indicated above, is outside the European Union, an agent for service in the Republic of Poland shall be indicated.
A change of the address for service of the persons indicated above or the data of the proxy for service in the Republic of Poland must be reported immediately to the registry court, enclosing a statement of the current, address for service. This notification is made by the family foundation or the persons indicated above.
Until a change of address for service is reported, service is made to the address reported in the registration file. The notification of these changes is not subject to a court fee.
Data entered in the register of family foundations in Poland
In the register of family foundations for each family foundation is entered:
- the number under which the family foundation is registered in the register of family foundations (entry number),
- the name of the family foundation,
- registered office and address,
- if the family foundation has a field unit or field units – also the headquarters and addresses of the field units,
- NIP (tax identification number) or information about its cancellation or revocation,
- website, electronic mail address and electronic delivery address entered in the electronic address database if the family foundation has them,
- REGON identification number,
- the amount of the founding fund,
- identification data of individuals or other entities (discussed in the section above on data indicated in the application),
- identification data and addresses for service of attorneys who have been granted a general power of attorney to represent the family foundation,
- if a supervisory board has been established in the foundation – identification data and addresses for service of members of the supervisory board,
- identification data and addresses for service of members of the assembly of beneficiaries,
- the duration of the family foundation, if designated,
- information on the statute and a note on its amendment,
- if the family foundation performs business activities – information on the business activities performed,
- mention of the filing of the annual financial statements of the family foundation with the date of their filing and the fiscal year,
- a mention of the filing of the audit report, if the financial statements were subject to audit by an auditing firm,
- mention of the filing of a resolution on the approval of the financial statements and the distribution or coverage of the net financial result,
- information about the day ending the fiscal year,
- mention of the appointment and dismissal of the superintendent and identification data of the superintendent,
- information on the opening and completion of liquidation, the establishment of management and receivership,
- identification data of the liquidator, administrator, receivership and the method of representation of the family foundation in liquidation,
- information on the dissolution of the family foundation,
- information on the opening of restructuring proceedings,
- information about the declaration of bankruptcy of the family foundation performing business activities,
- information about the completion of restructuring or bankruptcy proceedings or the revocation of the arrangement, as well as the identification data of the forced administrator, receiver, court supervisor, administrator, foreign administrator and persons appointed in the course of restructuring or bankruptcy proceedings to represent the debtor or bankrupt.
Identification data of persons entered in the register of family foundations in Poland
Precisely specifying the term identification data used above, it should be pointed out that according to the Law on Family Foundations, it should be understood as:
- with respect to an individual: surname and forenames and PESEL number, and in the event that this person is not required to have such a number, his or her date of birth is entered,
- with respect to an entity other than a natural person: name or business name, taxpayer identification number (NIP) and REGON identification number, and if the entity is registered in the National Court Register – also KRS number.
Application to change data entered in the register
The Law on Family Foundations imposes an obligation on the foundation to promptly (but no later than 7 days from the date of the event justifying the entry, unless a special provision provides otherwise) notify the registry court of the data and changes in the data to be entered in the register of family foundations (discussed in the points above).
The application for amendment of the charter of a family foundation shall be accompanied by the consolidated text of the charter, taking into account the changes made.
Data contained in the register of family foundations may not be removed from it, unless otherwise provided by law. If there is an entry in the register of family foundations that contains an obvious error or inconsistency with the content of the court order, the registration court shall, either ex officio or upon application, rectify the entry. If there are entries in the register of family foundations that are inadmissible due to applicable laws, the registration court (after hearing the persons concerned at a hearing or after a request for a written statement) shall delete them ex officio.
Possible changes in the register of family foundations ex officio takes place:
- in the event that there is a revocation of the order of the registration court ordering the making of some entry, the registration court ex officio orders its deletion from the register of family foundations,
- in the event that there is a change in the order of the registry court ordering the making of an entry – the registry court ex officio orders a corresponding change to that entry in the register of family foundations.
Presumption of truthfulness of data entered in the register
It should be pointed out that the data entered in the register of family foundations are subject to a presumption of truthfulness.
According to the Law on Family Foundations:
- It is not possible to claim ignorance of the contents of an entry in the register of family foundations, unless, despite the exercise of due diligence, the subject could not have known about the entry.
- If the data of a family foundation is entered in the register of family foundations inconsistently with or without an application for entry, and the foundation did not promptly make a proper application for entry – the family foundation cannot shield itself against a third party acting in good faith by alleging that the data is not true.
- A family foundation shall be liable for damage caused by reporting false data to the register of family foundations, if they were subject to mandatory entry at its request, and by failing to report data subject to mandatory entry in this register within the statutory period, unless the damage was caused by force majeure or solely due to the fault of the injured party or a third party for whom it is not responsible.
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