The Independent Supervisory Board Member: Myth or Reality?

Wojciech Krzymowski | Investment and Strategic Adviser · Corporate Governance · ESG/CSRD.

EMBA, the Polish Academy of Sciences' Institute of Economic Sciences (INE PAN) · Postgraduate Studies in Company Law, University of Warsaw Faculty of Law and Administration (UW WPiA, June 2026) ·

I ask myself this question as someone who is deliberately building a career as an independent supervisory board member. Not from the position of an observer. From the position of a participant. Which is precisely why I have to answer it honestly — even when that honesty complicates my own message.

Let's start with a diagnosis the industry doesn't like

There is a quiet consensus of silence in Poland around independence on supervisory boards. Everyone knows the system is imperfect. No one says so out loud — because too many market participants have an interest in maintaining the fiction that meeting the formal criteria of independence is the same thing as being independent in practice. It isn't.

This problem was not born in Poland in 2026. Almost a century ago, Adolf Berle and Gardiner Means described, in The Modern Corporation and Private Property (1932), the mechanism we now simply call the separation of ownership from control: the more dispersed the shareholding, the less real power formal owners retain over those who operationally run the company. In the Polish context — particularly in companies with a dominant shareholder, whether a private majority owner or the State Treasury — the same structural problem appears in an inverted configuration: it is not management that slips free of dispersed owners' control, but the dominant shareholder who captures the very organ meant to supervise it. The supervisory board — and within it, the independent member — is the answer to exactly the same, century-old problem. Only in a different configuration.

The Best Practice for GPW Listed Companies (Dobre Praktyki Spółek Notowanych na GPW) and the Act on Statutory Auditors, Audit Firms and Public Oversight (Article 129(3) — the independence criteria for audit committee members) define an independent supervisory board member through a set of exclusionary criteria: no capital ties to a dominant shareholder, no employment relationship with management, no material commercial relationships with the company. The Polish Commercial Companies Code (KSH) does not contain a separate definition of independence — it regulates only a related but distinct prohibition on holding multiple functions (Article 214 § 1 KSH for limited liability companies, Article 387 § 1 KSH for joint-stock companies). These criteria are necessary. They are the starting point. They are not the destination.

Practice shows that a person who meets every formal criterion can, in substance, be entirely dependent in their decision-making — voting loyally with the dominant shareholder's majority, reluctant to ask management difficult questions, lacking the technical grounding to independently assess financial statements or ESG strategy. That kind of "independence" is a legal fiction that protects neither the company nor its minority shareholders.

"Independence is not a state. It is a practice. You can hold it formally and lose it decisionally at every single vote."

— W. Krzymowski

Three dimensions — and one I do not have

In my academic work and advisory practice, I propose assessing a supervisory board member's independence along three dimensions. I set them out plainly — including in relation to myself, because I regard transparency on this point as a precondition of credibility.

FORMAL INDEPENDENCE — meeting statutory and code-based criteria. No capital ties to a dominant shareholder. No employment relationship with, or dependence on, management. No material commercial relationships with the company. This dimension I meet, and will continue to meet, consistently. It is a necessary condition of any mandate I accept.

ECONOMIC INDEPENDENCE — no financial dependence on the company or its owner. Remuneration from the supervisory mandate does not form a dominant share of income. No expectation of further contracts, referrals or other benefits conditional on maintaining loyalty. This dimension — to be honest — I cannot claim unconditionally. A supervisory board mandate is part of my professional activity and holds economic value for me. The economic criterion is systematically overlooked in Polish nomination processes, but that does not relieve me of the obligation to state it plainly.

DECISIONAL INDEPENDENCE — the willingness and capacity to take a different position when the company's or shareholders' interest requires it. A documented record of constructive opposition. The technical competence to independently assess financial position, ESG strategy and related-party transactions. Readiness to record a dissenting opinion in the minutes when warranted. This dimension — together with formal independence — I regard as the foundation of my positioning. And it is the one on which I will build my reputation.

Why economic dependence is the system's real problem

I do not write this to discredit myself or anyone else. I write it because the problem is real and deserves serious analysis. In Poland, remuneration for a supervisory mandate at a large company — listed on the Warsaw Stock Exchange or with State Treasury involvement — runs from several to well over ten thousand złoty per month. For many — perhaps even most — supervisory board members, this is a significant source of income.

Corporate governance scholarship has long distinguished between two types of agency problem. The first is the classic conflict between management and dispersed shareholders — the very ground on which Lucian Bebchuk of Harvard Law School built, together with Jesse Fried, his most influential work, Pay Without Performance (Harvard University Press, 2004): boards of large, widely-held companies effectively negotiate their own pay, without meaningful owner oversight. The second is the conflict between a dominant shareholder and the rest of the system — the company, the minority, the market. A supervisory board member's economic dependence on a mandate whose continuation rests on the goodwill of one dominant shareholder is a textbook instance of this second type. And that is precisely why no change to formal criteria will remove it — it can only be constrained through systemic mechanisms.

Someone for whom losing the mandate would mean a serious financial setback has a strong incentive toward loyalty. They need not say so out loud. They need not even fully recognise the mechanism at work. It is enough that, at every difficult vote, they subconsciously calculate: what happens if I vote against? The chilling effect is real, even where no overt pressure is ever applied. The system does not punish a board member for loyalty to the dominant shareholder. It punishes them only for its absence — through loss of the mandate, quietly, without explanation, at the next rotation.

This is a structural defect of the system that cannot be removed by changing formal criteria. It can only be minimised through two mechanisms: first, term limits and a prohibition on repeated reappointment by the same dominant shareholder; second, remuneration transparency and a duty to disclose other sources of income a board member receives from companies within the same ownership group.

"Economic dependence on a mandate is not a personal sin — it is a systemic defect that requires a systemic answer."

— W. Krzymowski

Decisional independence: the hardest, and the most important

Of the three dimensions of independence — formal, economic and decisional — the last is the hardest to assess from outside and the most important in practice. It can only be observed in action: when a board member asks questions management dislikes. When they demand documents management would rather not show. When they file a dissenting opinion and insist it be recorded in the minutes. When they say "no" on a matter where everyone else has said "yes".

Decisional independence is not a personality trait. It is a competence — built over years and made up of several components. The first is technical knowledge: company law, accounting, financial analysis, ESG regulation. Without it, a board member is condemned to believe whatever management tells them. The second is institutional courage: willingness to bear the social and professional cost of a dissenting view. The third — and hardest — is the ability to distinguish a situation in which dissent serves the company from one in which it merely serves one's own ego or a political manoeuvre.

This third component is what separates a genuinely useful independent board member from a merely difficult one. Opposition for its own sake is not independence — it is narcissism. True decisional independence is constructive criticism rooted in competence and subordinated to the company's interest.

Omnibus I: an unexpected test of independence

Directive (EU) 2026/470 — Omnibus I, adopted on 24 February 2026 and in force since 18 March 2026 — created a new context for this debate. By exempting an estimated 80% of EU companies from full ESG reporting obligations (the new CSRD thresholds: more than 1,000 employees and more than €450 million in net turnover, both cumulatively), it gave management a new tool: the ability to retreat from climate and social transparency under cover of legal compliance.

This is precisely the moment at which decisional independence on a supervisory board stops being an abstraction and becomes a concrete matter to be resolved at a board meeting. Management can say: "We are exempt from the obligation, so we do not report." An independent board member should ask: "Does the absence of a reporting obligation exempt us from the obligation to manage climate risk? Do our institutional investors and financing banks accept this decision? What happens to our position in due-diligence processes when we lack ESG data?"

These are the questions that separate formal independence from decisional independence. And this is a test that many supervisory boards in Poland will pass — or fail — in the coming months.

Is it worth it, all the same?

I return to the question in the title. Is the independent supervisory board member a myth or a reality?

In Poland today — the system is constructed such that full independence across all three dimensions is the exception, not the rule. Economic dependence is endemic. The cultural pressure toward collective voting is strong. Informational asymmetry works against the board.

But — and this "but" is the crucial part — formal and decisional independence are attainable. They require a deliberate choice: declining mandates where the terms of nomination preclude genuine decisional independence. Investing in the technical competence needed to independently assess a company's position. Building a reputation grounded in documented instances where a dissenting view proved correct.

It is a long road. But it is the only one that leads to a place where the institution of the independent supervisory board member becomes a genuine asset — for the company, for its shareholders, and for the corporate governance system itself.

That is why I choose this road myself. Deliberately, with my eyes open — and without illusions about its difficulty.

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Wojciech Krzymowski — investment and strategic adviser, founder of Krzymowski Communications. Author of the "real independence" model for supervisory boards. EMBA (INE PAN, dissertation: The Impact of the CSRD Directive on the Quality of ESG Reporting in the Oil and Gas Sector), postgraduate studies in company law (University of Warsaw Faculty of Law and Administration, defence June 2026, dissertation: Corporate Governance in Public Companies — the Role of Independent Supervisory Board Members in Protecting the Interest of the Company and its Shareholders), examination for candidates to supervisory boards run by the Ministry of State Assets. He is seeking independent supervisory board mandates at companies — private, listed on the Warsaw Stock Exchange, and with State Treasury involvement.

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