The Commercial Companies Code specifies exactly who can serve as a board member in capital companies. Specific personal requirements for future members of the Management Board and members of supervisory boards, review committees or liquidators shall determine Article 18 Code of Commercial Companies.
Only a natural person with the full capacity to act may be a member of the board. According to Article 11 c.c. the full capacity to act is acquired by a natural person on his or her adulthood, i.e. completion 18 years, or marriage by a minor. Such a natural person may not be incapacitated entirely or partially. The choice as a member of the board of directors of an adult but partially (or wholly) incapacitated person will be a null choice.
A natural person who is appointed as a member of the board of directors may not be convicted by a final judgment for criminal acts listed under Article 18 k.s.h. These are only crimes referred to in Chapters XXXIII–XXXVII Criminal Code and under Article 585(6), Article 587, Article 590 and under Article 591 Code of Commercial Companies .
The following offences are referred to in these provisions: against the protection of information (Article 265-296 (k) against the reliability of documents (Article 270-277 (k.k.), against property (Article 278-295 (k) against economic turnover (Article 296-309 (k) against the trading of money and securities (Article 310-316 (k.k.) as well as offences involving either the publication of false data or the presentation of such data to company authorities, state authorities or auditors (Article 587 k.s.h.), issuing false certificates of deposit of voting shares or lending to other non-voting shares (Article 590 k.s.h.), when voting at the general meeting or exercising minority rights (Article 591 k.s.h.).
Effect of violation of the prohibition on the appointment of a convicted person
According to the judgment of the Court of Appeal in Warsaw - VII Economic Division dated 22 February 2019 VII AGa 1850/18 appointment to the management of a capital company of a person who does not meet the conditions resulting from Article 18(2) KSH, it's ineffective.
Regulation Article 18(2) Act dated 15 September 2000 Commercial Companies Code (i.e. Journal of Laws of 2013, item 1030 as amended) is a negative condition for the effective appointment of the person concerned to the functions indicated Under section 1, disables the ability to perform them.
The appointment of a convicted person as a criminal offence referred to in that provision should be regarded as invalid in the face of a conflict with mandatory legal provisions (Article 58(1) KC in conjunction with Article 2 Commercial Companies Code).
It must be stated that, as of the date of finalisation of the judgment, the mandate already exercised expires. That provision also provides a basis for the loss of the ability to continue to perform those functions if a final conviction has been given at the time of their execution.
Violation of the ban from Article 18(2) The Commercial Companies Code results in the nullity of appointments and has no legal effect.
It stops with an interval fifth one year after the date of finalisation of the conviction, but may not end before the expiry of the three years after the end of the penalty period - Article 18(3) Commercial Companies Code.
Provision Article 18(4)) The Code of Commercial Companies grants the sentenced person the right to request his release from the prohibition of his duties or to reduce the duration of the prohibition until three months from the date of finalisation of the judgment.
Exemption from the prohibition, provided that it is taken into account by the court, will work for the future must not undermine the provisions of the Under section 2) and opens the possibility of re-election.
It should be stressed that a mandate which expired at the time of the finalisation of the conviction is not reactivated in the event of an exemption from the prohibition.
Additionally, according to the Supreme Court – Civil Chamber dated 25 April 2018 IV CSK 321/17 appointment of a person legally convicted of an offence subject to a specific prohibition under Article 18 Act dated 15 September 2000 Commercial Companies Code i.e.
Journal of Laws of 2017, item 1577 as amended) it must be regarded as invalid in view of a breach of the mandatory law by the legal act of the company, which is the choice of such a person by its authority as a member of the Management Board. Actions by such a person are therefore also invalid.
This applies to both substantive and procedural activities.
On the margins, it should be added that the registration court in a specific procedure under Article 12(3)) Act on 20 August 1997 on the National Court Register i.e.
Journal of Laws of 2017, item 700 as amended) the deletion of an alert which is inadmissible under applicable law is not entitled to examine compliance with the law of the Assembly of Shareholders or of the General Meeting, which provides a material and legal basis for the alert.
The registration court shall not be entitled to carry out the examination in question.