On 9 November 2018 The Sejm passed a law amending certain laws to introduce simplifications for traders in tax and economic law (hereinafter referred to as ‘the Act’). It has now been handed over to the President and the Senate Marshal according to Article 52 Parliament rules.
It is worth noting that the Act provides, inter alia, for the introduction of new provisions in the Commercial Companies Code (hereinafter referred to as ‘KSH’), concerning the obligations of the last member of the board of directors of a capital company in connection with its resignation.
This is important that the decision to resign entails a number of consequences threatening the functioning of the company.
The Act provides that if, as a result of the resignation of a member of the management board of the company, no mandate on the board of directors would be filled, then the member of the board of directors shall resign to shareholders unless the articles of association provide otherwise (Article 202(6) KSH).
As regards a public limited company, a member of the board of directors should resign to the supervisory board (Article 369(51ksh)).
If, on the other hand, the supervisory board remains entirely vacant, then the member of the board of directors resigns to shareholders, at the same time setting up a general meeting, unless the statutes of the company provide otherwise (Article 369(52ksh)).
For both types of capital companies, it is provided that the announcement of the meeting should contain a statement of resignation of a member of the board and that the resignation is effective on the day following the date on which the meeting of shareholders was convened (Article 202(6) KSH and Article 369(52zd). 2 and 3 KSH).
The introduction of an obligation to conven a meeting of shareholders by a outgoing member of the board to complete its composition is absolutely right, since it is an incentive for shareholders to take part in the management of the company
The Act also introduces a separate obligation to convene a meeting of shareholders in order to adopt a resolution on the appointment of the Board and the non-application of Articles 235(1) and 399(1) KSH (Article 233(3) KSH and Article 397(2) KSH).
In fact, this is a repetition of the mentioned content Article 202(6) KSH and Article 369(52ksh), which explicitly provide for a specific obligation to act and its addressee. This is a mistake in legislative technology, which is part of the current problem of poor quality legislation.
From the point of view of the interpretation of the law, it is a breach of the primary principle of the rationality of the legislature, which should not regulate the same issue twice.
However, the attempt to address a practical problem which has not yet been resolved by a judicature in a way that does not raise doubts should be positively assessed.
Regarding the question of the indication of the addressee of the statement of resignation of the last member of the board of directors of the capital company, The Supreme Court found that there were no reasonable obstacles to the exercise of the company's passive representation in the event of a declaration of resignation from the sole board member by the same board member who had resigned (see Judgment of 31 March 2016, reference no.
III CZP 89/15). Thus, in practice, it is sufficient for an effective resignation to be given by a member of the board of directors to give an appropriate declaration of resignation by registered letter to the address of the company, without having to inform anyone about it.
However, despite the claims of the Supreme Court, it seems that sending a resignation to the company does not provide it, in fact to the general shareholders, with information about the lack of the company's operating body.
In the event of the presence of passive investors, they may obtain information about the lack of a board of directors with some delay, which will have a negative impact on the company's business continuity and financial performance.
In this context, the introduction of an obligation for the outgoing member of the board to convene a meeting of shareholders in order to complete its composition is most appropriate, as it is an incentive for the shareholders to take part in the management of the company.
Author
Justyna Kyć - Legal adviser in the Legal Department of 2017 associated with Russell Bedford Poland. He specializes in corporate customer service, in particular in drawing up and negotiating commercial contracts and providing ongoing legal advice.