The question of how to elect a board member has been regulated under Article 201(5)- Act dated 15 September 2000 Commercial Companies Code (hereinafter ksh). This provision states that a member of the Management Board is appointed and revoked by a resolution of the shareholders, unless the articles of association provide otherwise.
A member of the board of directors in a limited liability company shall be appointed by means of a resolution, at the same time it shall be reserved in the provision, unless the articles of association provide otherwise.
Therefore, in order to determine how a new member of the Management Board should be appointed, it is necessary to check whether the provisions of the single text of the company agreement govern this in a different way than those laid down in the Commercial Companies Code.
Where the above was not regulated differently in the company's contract, the appointment takes place through a resolution.
In the legal trade, one can often see the view that the entry of a person in the National Court Register is decisive for the right to represent a capital company. In view of the established case-law, this view must be regarded as incorrect
Accordingly, the meeting of shareholders should adopt a resolution on the appointment of a member of the board. Resolution, according to Article 245 ksh, should fall by an absolute majority and according to Article 247 section 2 ksh in a secret ballot.
Then Article 22 The National Court Register Act obliges to submit an application for amendment of an entry in the National Court Register within the time limit 7 days from the date of appointment of a new member of the Management Board.
The resolution on the appointment of a new member of the Management Board does not need to be written down and drawn up by a notary, since the requirement to include a resolution in the minutes drawn up by a notary concerns resolutions that alter the content of the partnership agreement.
On the other hand, a resolution concerning the appointment of a new board member is not a resolution that amends the company's contract.
Appointment of a board member and entry in the register
In the legal trade, one can often see the view that the entry of a person in the National Court Register is decisive for the right to represent a capital company. In view of the established case-law, this view should be regarded as incorrect.
In accordance with the Supreme Administrative Court judgment dated 14 May 2019 (reference no.: II FSK 1832/17) a resolution on the appointment of a member of the company's board of directors shall have effect on the adoption, not on registration in the National Court Register.
This entry is only of a declaratory nature and does not decide whether the person is or is not a member of the Management Board. Therefore, the appointment of a person appointed to the management board of the company does not depend on the circumstances of entry in the register.
The member of the Management Board is thus the one who has been properly appointed to the Authority, while the membership of the Authority expires following the circumstances resulting in the termination of the mandate.
Therefore, it should be assumed that return of the application the entry in the register of an amendment or entry in the register cannot settle the dispute in principle, who is a member of the board of directors of the company body, even more so that the registry court is not entitled to settle the matter.
The Supreme Court also rightly stressed this in its judgment dated 7 July 2005, reference no.. V CK 839/04 „by explicit provision Article 201(4) k.s.h. a member of the management board of a limited liability company is appointed and dismissed by a resolution of the shareholders; the entry of changes in the personal composition of the board in the court register is only of a declaratory nature. It is presumed that the entry in the National Court Register is true but it is supposed to be touching."
Settlement of disputes concerning membership of the Management Board
On the other hand, when a dispute arises in connection with the membership of the Management Board itself, it is necessary to apply a specific procedure under Article 189 The NPC and the application for a finding — on the basis of Article 252(1) KSH – in the event that the meeting of shareholders of a limited liability company adopts a non-lawful resolution, its move should take place in proceedings for annulment of the resolution against the company. If a resolution violates a company's contract or good manners, then it may be moved in the proceedings against the company to repeal the resolution, on the basis of Article 249(1) KSH.
Author: Maciej Tuszyński
Legal Manager in the Legal Department. Lawyer, member of the District Bar Council in Warsaw, graduate of the Faculty of Law and Administration of the University of Warsaw. He specializes in commercial and civil law law. He has professional experience, which includes litigation and comprehensive legal advice on the day-to-day service of economic operators, in particular commercial law companies. As part of his work at the law firm, his practice focuses on corporate, civil and economic matters.