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# Real independence on the supervisory board: a three-criteria model for the age of Omnibus I
- URL: https://wojciech-krzymowski.ghost.io/real-independence-on-the-supervisory-board-a-three-criteria-model-for-the-age-of-omnibus-i/
- Published: 2026-09-12T13:39:22.000Z
- Updated: 2026-09-12T13:39:22.000Z
- Author: Wojciech Krzymowski

**Wojciech Krzymowski | Investment and Strategic Advisor · Corporate Governance · ESG/CSRD**

**EMBA, INE PAN (Polish Academy of Sciences) · Company Law, UW WPiA (University of Warsaw) (June 2026)**

“Independent supervisory board member” is today one of the most overused labels in Polish corporate governance. Formally meeting the statutory criteria is not enough. We need a three-criteria test of real independence — particularly in light of the changes introduced by Directive (EU) 2026/470.

## Where the problem comes from

Polish regulation — the Commercial Companies Code (KSH) combined with the Best Practice Code for Warsaw Stock Exchange Listed Companies — defines an independent supervisory board member through exclusionary criteria: no capital ties to the controlling shareholder, no employment relationship with management, no material commercial relationship with the company. These are formal criteria. Necessary, but not sufficient.

Practice shows that a person meeting all the formal criteria can, in substance, be entirely decisionally dependent — loyally voting with the controlling shareholder’s majority, reluctant to ask management hard questions, lacking the substantive grounding to assess ESG reports. Such “independence” is a fiction that protects neither the company nor its minority shareholders.

It is worth naming this in precise terms rather than leaving it as intuition. Ronald Gilson and Jeffrey Gordon, in the now-classic paper “Controlling Controlling Shareholders” (University of Pennsylvania Law Review, vol. 152, p. 785, 2003), distinguished two types of agency problem in corporations: Type I, classic to the American market, is the conflict between management and dispersed shareholders. Type II, closer to the realities of continental Europe and Polish companies with a majority shareholder or State Treasury ownership, is the conflict between the controlling shareholder and the rest of the system. The formal independence criteria, imported largely from the Anglo-Saxon regulatory tradition, were designed chiefly with the Type I problem in mind — which is precisely why they are so easy to satisfy without solving the Type II problem at all, even though Type II is the dominant reality in Poland. This incompatibility is not accidental. A test this easy to pass is not a broken test — it is a test for a different disease.

## The three-criteria model

I propose assessing a supervisory board member’s independence along three dimensions:

FORMAL INDEPENDENCE — the classic statutory and best-practice criteria. A starting point, not a destination. No ties to the controlling shareholder, management or auditor. Necessary, but not sufficient.

ECONOMIC INDEPENDENCE — no financial dependence on the company or its owner. Remuneration from the board mandate does not constitute a dominant share of income. No expectation of further advisory contracts, referrals to other boards within the same ownership circle, or other benefits conditional on maintaining loyalty to the controlling shareholder. This criterion is systematically overlooked in Polish nomination processes.

DECISIONAL INDEPENDENCE — the willingness and ability to take a different position when the interest of the company or its shareholders requires it. A documented history of constructive dissent. Substantive competence enabling independent assessment of financial statements, ESG strategy and related-party transactions. This is the hardest criterion to assess from the outside — and the most important.

## Omnibus I as a test for nomination committees

Directive (EU) 2026/470 has created an unexpected test of the quality of independence on supervisory boards. Companies that take up the exemption from ESG reporting for 2025–2026 will face a question: who on the board will make sure management does not abandon ESG risk management under the guise of no longer having a reporting obligation?

The answer is obvious: an independent board member with genuine competence in the area. One who understands the difference between the reporting obligation and the risk-management obligation. Who knows that Omnibus I did not change the materiality of climate risk, or the demands of institutional investors. Who is capable of asking management the right questions — and will not let go without a satisfactory answer.

That is what real decisional independence looks like. And its absence — not the absence of formal credentials — is the biggest gap in Polish supervisory boards.

It is worth naming plainly the assumption this gap often conceals. When management argues that dropping ESG reporting “frees up resources for core operations”, it is invoking — sometimes without realising it — the intuition Milton Friedman articulated explicitly in 1970: a company’s sole duty is to increase profit, and everything else is a cost to be cut. Polish law does not straightforwardly share that intuition — the supervisory board’s duty to safeguard the company’s interest does not reduce to maximising short-term results — but without an independent board member willing to name this, the Friedmanite argument wins by default, because no one contests it.

***“Formal independence protects against the accusation. Decisional independence protects the company. Only the latter actually matters.”***

***— W. Krzymowski***

## Implications — a case study: State Treasury energy companies

The three-criteria model is not designed with a single type of company in mind — it applies to every supervisory board, regardless of whether the majority shareholder is a private equity fund, a founding family, or the State Treasury. It is, however, clearly illustrated by Poland’s State Treasury-owned energy companies — PKN Orlen, PGE, Tauron, KGHM — where decisional independence carries particular weight, because the State Treasury’s ownership interest can come into conflict with the company’s commercial, strategic or climate interest. The independent board member stands on the side of the company and all its shareholders — not only the controlling one.

The energy-transition agenda, EU climate commitments, ETS costs, hydrogen strategy, investment in renewables — these are all matters in which the management of a State Treasury-owned company needs the supervisory board as a substantive partner, not as a body rubber-stamping decisions already made. Yet the Real Independence model is not a claim reserved for the State Treasury sector — it applies with equal force to a private family business heading for a stock market listing, or to a private equity fund’s portfolio company. Wherever there is a controlling shareholder and a rest of the system, someone is needed to structurally represent that other side.

Wojciech Krzymowski writes the “Real Independence in the Supervisory Board” series. He is an investment and strategic advisor, and founder of Polish Art Foundation — Krzymowski Art. He holds an EMBA from the Institute of Economic Sciences of the Polish Academy of Sciences (INE PAN; thesis: “The Impact of the CSRD Directive on the Quality of ESG Reporting in the Oil and Gas Sector”), is completing postgraduate studies in company law at the University of Warsaw Faculty of Law and Administration (UW WPiA; defence June 2026; thesis: “Corporate Governance in Public Companies — the Role of Independent Supervisory Board Members in Protecting the Interest of the Company and its Shareholders”). He is seeking independent non-executive appointments on the boards of private companies, companies listed on the Warsaw Stock Exchange, and companies with State Treasury ownership.

#CorporateGovernance #SupervisoryBoard #BoardIndependence #ESG #CSRD #OmnibusI #NonExecutiveDirector #RealIndependence

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