Adoption of the resolution Article 210(1) KSH may make it necessary to maintain a specific form of legal activity when appointing a proxy.
Failure to comply with a particular form of legal action required by the Act may threaten with adverse legal consequences, as the Act often reserves the form of a specific act subject to its annulment. In the event of a resolution being adopted in a manner Article 210(1) KSH, the views of the case-law appear to be inconsistent and the case has significant practical significance, as will be mentioned in the following section of the article.
Answer to the question of whether, in the case of power of attorney, Article 210(1) KSH Act dated 15 September 2000 – Commercial Companies Code (Journal of Laws of 2019, item 505 t.j. of day 15 March 2019, hereinafter referred to as ‘KSH’) it is necessary to adopt a resolution in a specific form appropriate for a legal act falling within the scope of the power of attorney, which appears to be pending.
As has already been mentioned, the statements of the case-law on this issue are not uniform, it is eluded from unequivocal assessment. For these reasons, further attention should be paid to two leading positions.
first of them assumes autonomy and completeness of the regulation of power of attorney with Article 210(1) KSH, which is expressed in the inadmissibility of applying to it the provisions applicable to the power of attorney under the Civil Code. second the view is linked to the so-called principle of unity of civil law and assumes the admissibility of application to the power of attorney from Article 210(1) KSH regulations applicable to the power of attorney under the Civil Code.
View of the autonomy of the power of attorney with Article 210(1) KSH
According to first from the views discussed, power of attorney from Article 210(1) KSH is a detailed, self-contained and exhaustive regulation, and the provisions of the Act of 23 April 1964 – Civil Code (Journal of Laws of 2018, item 1025 t.j. of day 29 May 2018, hereafter referred to as the KC), apply only if the KSH does not include its own regulation of a specific institution – in this case, power of attorney with Article 210(1) KSH.
This view is reflected in the Supreme Court judgment of 15 June 2012 (reference no.
II CSK 217/11), in the statement of reasons which the Supreme Court has expressed its view that the proxy appointed in the procedure Article 210(1) KSH is not a representative of the company of stricto meaning, but a special representative called a “corporate” or organizational proxy.
In the opinion of the Supreme Court, the limited scope of competence of such appointed proxy also demonstrates the specific and different nature of the mandate.
The Supreme Court pointed out in its judgment that the proxy fulfils, to the extent indicated, the function of a substitute manager, who is to carry out activities which are clearly marked in the sphere of competence of the board as the body of the company.
As a result first of the views assumes that if a power of attorney is granted on the basis of Article 210(1) KSH does not need to maintain the form of a special resolution and the interpretation that the form of power of attorney granted by the meeting of shareholders on the basis of Article 210(1) KSH is governed by the rules laid down in Article 99(1) KC, i.e. if a special form is needed for the validity of a legal act, the power of attorney for that act should be granted in the same form.
View of the need to maintain a form of special power of attorney from Article 210(1) KSH
Article 2 KSH is an expression of the so-called principle of unity of civil law, according to which, in matters not regulated by KSH, the provisions of the KC apply (rightly) and, where required by the jurisdiction (nature) of the legal relationship of a commercial company, the provisions of the Civil Code apply accordingly.
The need to reach out to the standards contained in the Civil Code, in particular the provisions on the power of attorney, sees also the judicatura. Supreme Court in the statement of reasons dated 27 February 2009 (reference no.
II CSK 509/08), When examining the question of the form of the resolution adopted on granting power of attorney for the conclusion of the founding agreement of the limited partnership, he pointed out that when KSH does not regulate a particular issue, it should be by Article 2 KSH reach out to the KC norms.
In the explanatory memorandum of the resolution of 30 January 2019 (III CZP 71/18) The Supreme Court also referred to the principle of unity of civil law. The SN expressed the view that the legislator uses the same term to designate a proxy, both in the KC and in the KSH Code, and can also grant the power to act in the field of representation of the company to different authorities and does so in itself Article 210(1) KSH.
The Supreme Court emphasises in the explanatory memorandum of the resolution that it is deliberate and thoughtful to place Article 2 in the Act, which allows, depending on the situation, the provisions of the Civil Code to be applied directly if the legal term used in the KSH is not fully regulated, as is the case with regard to the power of attorney. Importantly, the Supreme Court pointed out that there is no need to look for questionable arguments to demonstrate the difference between the mandate with Article 210(1ksh) and the mandate to which the special chapter is devoted, contained in part of the General Civil Code (Article 98-109kc).
Therefore, in view of the possible need to maintain a specific form of resolution, Article 210(1) KSH and the above-mentioned Supreme Court statements should be reached Article 99(1) KC, according to which if a specific form is needed for the validity of a legal act, the power of attorney for that act should be granted in the same form.
Consequently, according to this view, the power of attorney is granted in the form of Article 210(1) KSH in will require the adoption of a resolution in a specific form, provided that the Act provides for a specific act to be maintained.
Practical application of these views
In practice first from the views discussed, in the case where a limited liability company seeks to enter into a real estate sale agreement with a member of the management board of that company, to adopt a resolution granting the power of attorney in a manner Article 210(1) KSH will require only a written form, reserved by KSH for resolutions of the Assembly of Associates.
By contrast, using second from the views discussed, which provides for the need to maintain a form of special power of attorney from Article 210(1) KSH, it will be necessary for the notary to report the resolution to the notarial act. Otherwise, the power of attorney would have been affected by a sanction for annulment and the contract would have been concluded without proper power of attorney and until the agreement was confirmed by the rightholder would have been sanctioned ineffectively suspended.
Author:
Michał Skwarek - counsel application in the legal department Russell Bedford Poland. Graduated from the Faculty of Law and Administration of the University of Warsaw.