Secondment of a supervisory board member to the management board and health insurance contribution

Change in NFZ’s Position

Recently, the National Health Fund (NFZ) has changed its stance regarding the obligation to pay health insurance contributions by a supervisory board member temporarily delegated to the management board. Previously, the prevailing opinion held that in the case of such delegation, no health insurance contribution was required. This position was reflected, for example, in NFZ decisions no. 1/2023/BP and no. 64/2023/BP. However, the recently published decision no. 19/2024/BP presents a completely different viewpoint. Based on this decision, the Fund will now require the payment of health insurance contributions from the remuneration of individuals delegated from supervisory boards to temporarily perform executive functions. This issue applies not only to commercial companies but also to cooperatives. It is worth noting that, in contrast to the NFZ, the Social Insurance Institution (ZUS) maintains a much more liberal approach regarding social insurance contributions.

Interpretation – Factual Background

In decision no. 19/2024/BP, the NFZ responded to an inquiry from a limited liability company, whose shareholders’ meeting dismissed a management board member and, for a period of up to three months, delegated the chairman of the supervisory board to act in his place. The temporarily delegated supervisory board member received remuneration for his role, although no employment or civil-law contract was signed. During the delegation period, the remuneration he usually received as a supervisory board member was suspended. Due to doubts raised by the company, the NFZ analyzed the provisions of Article 66(1)(35) and (35a) of the Act of 27 August 2004 on publicly funded health care services. According to these provisions, persons subject to health insurance include supervisory board members residing in Poland, persons appointed to functions by way of an appointment act, and commercial proxies (prokurenci), provided they receive income subject to income tax—regardless of its classification under the Personal Income Tax Act—unless their annual remuneration does not exceed PLN 6,000.
Upon analyzing the above provisions, the NFZ concluded that the term “delegate,” which in the case of a limited liability company occurs via a resolution based on provisions included in the company’s articles of association, is equivalent to an “appointment act” for the purposes of the law. To justify its stance, the NFZ referred to the Supreme Court ruling of 6 June 2023, case no. II UK 329/12. As a result, the Fund has fully reversed its previously held position. The NFZ is now moving toward increasing the financial burden on insured individuals and contribution payers.

What About Social Insurance Contributions?

So, how does the situation look when it comes to social insurance contributions for delegated individuals? It should be emphasized that being subject to health insurance contributions does not automatically mean being subject to social insurance contributions. In the case of a supervisory board member being temporarily delegated to perform management board duties, ZUS—unlike NFZ—maintains a favorable position. The limited liability company that submitted the inquiry to NFZ also submitted a question to ZUS about whether social insurance contributions must be paid if a supervisory board member is delegated to the management board and receives remuneration established solely by resolution. ZUS replied that in such cases, social insurance coverage does not apply. The authority stated that a supervisory board member should be treated as not subject to any social insurance, as the function is performed solely on the basis of an organizational relationship (i.e., a resolution), without the need for an employment or civil-law contract. As a result, the company, acting as the contribution payer, is not obligated to calculate, deduct, or remit social insurance contributions on the remuneration paid to the delegated individual. It should be emphasized that, for now, ZUS consistently maintains this favorable stance for insured individuals.