The concept and general characteristics of Polish securities law

Abstract

The article presents the general characteristics of Polish securities law and the main juridical, legislative and practical issues arising in this area of legal transactions. Securities law comprises a set of regulations that govern the principles of creating securities, the rules of trading in these instruments and the principles of exercising rights and performing obligations stemming from securities. Polish law does not define the concept of a security. The doctrine generally assumes that a security is a document stating a specific property right of a transferable nature, which incorporates this right into this document, the possession of which is a necessary condition for the exercise of this right and its disposal. Securities law in Poland has not been codified and its sources are dispersed. General issues are regulated in the provisions of Art. 9266–92616 of the Civil Code, while specific issues are regulated in legislative acts regulating particular types of securities, acts devoted essentially to other issues but also containing regulations of particular types of securities, and in normative acts of the European Union, in particular, in Regulations of the European Parliament and the Council (EU). Securities have been regulated in more or less detail under Polish law. However, there are considerable legislative issues that need to be addressed with regard to certain types of securities which have recently become “dematerialised” and this “dematerialisation” has made the traditional legal solutions governing them, which were essentially based on property law constructions, inadequate. What the Polish legislator has not achieved yet is uniform set of legal solutions that could apply to both tangible and intangible, dematerialised securities taking the form of book entries only. As a result, we have to do with a certain regulatory dualism in this area in Poland. The general provisions on securities contained in the Civil Code are generally applicable to traditional securities, whereas the issue and trading in dematerialised securities is regulated by other provisions as well, mainly the Act on trading in financial instruments of 2005.