Power of attorney granted under the procedure Article 210(1) the Code of Commercial Companies will each time require a resolution to be adopted in a specific form, provided that the Act provides for such a form to be maintained for a specific activity.

Admissibility of application of the law 23 April 1964 - Civil Code 1 ((hereinafter referred to as ‘k.c.’) to the power of attorney given by the resolution of shareholders of a limited liability company in the form of Article 210 Act on 15 September 2000 – Commercial Companies Code 2 (hereafter referred to as ‘k.s.h.’) constitutes a dispute in both doctrine and case law.

In spite of the existence of a norm allowing, depending on the situation, to apply directly or appropriately, the provisions of the law, if the legal institution is not fully regulated in the law, the controversy still raises the nature of the power of attorney granted under the procedure. Article 210(1) k.s.h.

Divergent doctrine views and different case-law lines focus their attention on the question: whether a provision Article 210(1) k.s.h. is a complete and autonomous regulation and, if not, whether or not, if a particular form of legal action is necessary, by means of a proxy resolution Article 210(1) k.s.h.

do you need to seek the law on power of attorney?

1. Introduction

The purpose of this Article is to approximate the question of the admissibility of the application of the provisions governing the power of attorney from K.C. to the power of attorney given by the resolution of the shareholders of the limited liability company in a manner Article 210 k.s.h.

in the context of the need to maintain a specific form of power of attorney for carrying out a legal act. According to Article 2 k.s.h., in matters of particular value. 1 section 1 k.s.h. and not regulated in that law, the provisions of k.c. apply.

Moreover, if the jurisdiction (nature) of the legal relationship of a commercial company so requires, the provisions of the C.C. shall apply mutatis mutandis.

The basic provisions governing the power of attorney are laid down in the C.C. and, in the context of the conduct of the form of power of attorney laid down in the Act, it is important to Article 99(1) k.c.

stating that where a specific form is needed for the validity of a legal act, the power of attorney for that act should be given in the same form. In the above context, it should be borne in mind that Article 210(1) k.s.h.

in the agreement between the company and the member of the board and in the dispute with it, the company shall be represented by a supervisory board or a proxy appointed by a resolution of the meeting of shareholders.

Interpretative doubts led to divergent doctrine views and different case-law lines, focusing their attention on the question whether the provision Article 210(1) k.s.h. is a complete and autonomous regulation, and whether, if necessary, a special form of legal action is to be maintained, by means of a proxy resolution.

Article 210(1) k.s.h. must be consulted on the law on the power of attorney. The obligation to maintain a specific form of resolution adopted in a manner Article 210(1) k.s.h.

would consequently require the application of the law on power of attorney to the power of attorney given by the resolution of shareholders of the limited liability company.

It must be stressed that the case-law of the Supreme Court on this issue is not uniform, and over the years it has been eluded by a clear assessment of that court. At least two extreme views on this issue, mutually exclusive.

With a view to a closer analysis of the issue so outlined, the author of this publication First, approximates the substance of the power of attorney granted by the resolution of limited liability shareholders Article 210(1) k.s.h. to devote further attention to the principle of the unity of civil law expressed on the grounds of k.s.h.

and to the two dominant views on the subject matter in question, stating that the power of attorney granted in a manner Article 210(1) k.s.h. will each time require the adoption of a resolution in a specific form, provided that the Act provides for the need to maintain such a form for a particular activity.

1. The essence of the power of attorney given by the resolution of limited liability shareholders Article 210 k.s.h.

According to Article 210(1) k.s.h. in the agreement between the company and the member of the board and in the dispute with it, the company shall be represented by a supervisory board or a proxy appointed by a resolution of the meeting of shareholders. Standard from Article 210(1) k.s.h.

is a derogation from the Code of Conduct and Representation of a Limited Liability Company by the Management Board and its content is prohibited from representing the Company by a person acting as a member of the Management Board if that member of the Management Board is second a party to a dispute with a company or a contract concluded.

Regulation Article 210(1) k.s.h. aims to protect the interests of companies in the event of a conflict of interest between the company and a member of the board of directors entitled to represent the company[3].

It requires that any contracts and disputes between the company and a member of the board of directors, both in relation to its function and those not related to the performance of the functions of a member of the board of directors, but in which a member of the board acts as a person third to the company[4].

It must be stressed that the exclusion of a board member from representing a limited liability company due to its ‘controversial’ with the company (Article 210 (k.s.h.) may also occur due to a potential conflict or risk of such conflict, which is due to the need for the company to take a decision or to express a position of legal relevance where the interests of the company and of a member of the board of directors may conflict.

Although k.s.h. does not constitute a direct entity restriction on a person who may be appointed as a proxy for representation of the company in contracts and disputes with members of the Management Board, it is assumed that the proxy of the company may be both a shareholder and a non-member.[5].

It is, on the other hand, disputed whether the company’s proxy chosen by the meeting of shareholders under the Article 210(1) k.s.h. may be a member of her board.

Admissibility of appointment in this mode of board member is not excluded, however, in the case of double companies the circumstances of the particular case should be examined[6].

Consequences of an infringement Article 210(1) k.s.h. in the conclusion of contracts with members of the board of directors of the company, there were many controversy and disputes. At present there seems to be a dominant view in the case law, according to which the infringement of this provision, having the character of ius cogens, causes absolute nullity of legal action[7].

By way of example, it must be pointed out that the Court of Appeal in its judgment of 2 September 2015 8 emphasises that the contract concluded in breach Article 210(1) k.s.h. is invalid, regardless of its approval by a resolution of the shareholders of the proxy, because the result of a breach of the rules of representation from Article 210(1) k.s.h. is the absolute nullity of the contract on the basis of Article 58(1) k.c.

Some disagreements with regard to the position in this regard appear in the doctrine, but the prevailing view seems also to be the one in favour of sanctioning the annulment of a legal act contrary to Article 210(1) k.s.h. 9 .

3. Principle of unity of civil law

Polish private law applies the principle of unity of civil law and the issue of commercial law companies is part of civil law 10 , being only a separate part of the single civil law. The expression of the implementation of the dominant Polish doctrine of the above-mentioned view constitutes Article 2 k.s.h.

Article 2 k.s.h., in specific cases under Article 1(1) k.s.h. not regulated by that law, the provisions of the act shall apply. Moreover, the standard referred to above complements Article 2 k.s.h.

sentence second, which indicates that, where the jurisdiction (nature) of the legal relationship of the commercial company so requires, the provisions of the law shall apply mutatis mutandis.

Robert Siwik points to three the variety of appropriate application of the provisions of another law to the k.s.h. to which they belong 11 :

• 1) the application of the provisions explicitly, i.e. without modification, or only with grammatical modifications, the task of which is to adapt the provision to a specific legal state,
• 2) the application of the provisions of c.c. with certain modifications. They may include both grammatical and substantive modifications if they are to adapt the standard to a specific legal status,
• 3) Resigning the use of certain provisions.

In the interests of clarity, it should be added that, in accordance with the wording, Article 1(1) k.s.h. the Act regulates the creation, organisation, operation, dissolution, merger, division and transformation of commercial companies.

On the can, the view that commercial law companies should be regarded as part of civil law is considered to be Article 2 k.s.h. incorporates in its content two Principles: unity of civil law, exhibited in the sentence first that provision and limited autonomy of the law of commercial companies in relation to civil law[12].

However, the application of the principle of unity of civil law and limited autonomy of the law of commercial companies does not mean that the application of the provisions k.c. to the creation, organisation, operation, dissolution, merger, division and transformation of commercial companies is not subject to additional conditions.

The application of the provisions of k.c. with regard to the regulation in k.s.h. may only take place if there is no regulation of the relevant issue in k.s.h., and therefore if there is no basis for adopting the negative regulation in k.s.h., there are no grounds justifying the application of other provisions of k.s.h.

by analogy, and the issue is not regulated in k.s.h. 13 .

In the light of the above, it should be pointed out that the question of the nature of the power of attorney granted on the basis of Article 210(1) k.s.h., in doctrine and jurisprudence have been distinguished two dominant views.

first of them assumes autonomy and completeness of the regulation of power of attorney with Article 210(1) k.s.h., which is inadmissibility of applying to it the provisions applicable to the power of attorney on the basis of the c.c.

second the views are linked to the principle of the unity of civil law already mentioned and assumes that the power of attorney of Article 210(1) k.s.h. the provisions applicable to the power of attorney on the basis of the c.c.

1. Autonomousness of the power of attorney from Article 210(1) k.s.h.

The view of the design autonomy of the power of attorney Article 210(1) k.s.h.

is based on the assumption that the right to appoint a representative of the company to conclude an agreement between a member of the board of directors and a company or in a dispute with it constitutes an institution of commercial law which has its own right, exhaustive and detailed character.

According to the view discussed with regard to the power of attorney of Article 210(1) k.s.h. is excluded from the application of the provisions of k.c., because they are only applicable if k.s.h. does not contain its own regulations concerning a particular institution or are only residual.

This view is reflected in the Supreme Court’s judgment of 15 June 2012 14 , in the statement of reasons which the Court of First Instance expressed its view that the proxy appointed under the procedure Article 210(1) k.s.h.

by the power of the resolution is not a proxy of the company of stricto sense, but a special representative, called a "corporate" or "organisational" proxy, because the appointment of a proxy appointed by the resolution in a manner Article 210(1) k.s.h. does not result from a declaration of will of the board members, i.e.

the body authorised to represent the company[15]. In the opinion of the Supreme Court, when a resolution is adopted by a meeting of shareholders, it should be assumed that the appointment of a proxy is based on a specific act of ‘internal management’.

In the view of the Supreme Court, the limited scope of competence of such appointed proxy also demonstrates the special and different nature of the mandate in question.

The Supreme Court pointed out, in its statement of reasons, that the proxy fulfils, to the extent indicated, the function of a replacement administrator, who is to carry out clearly marked activities belonging to the sphere of competence of the board as the body of the company.

The Supreme Court stressed in the statement of reasons that the act of appointment, which is the resolution of the assembly of shareholders, is subject only to the regulations in K.s.h., which, by standardising the way and procedures for the adoption of resolutions, also specify the form of their adoption.

Consequently, if a power of attorney is granted on the basis of Article 210(1) k.s.h., only the ordinary form of written resolution is required, but there is no basis for the condition that a special form is preserved, and therefore also a form of derivative from the act to be carried out by the proxy (Article 99 k.c.).

View of the autonomy of the power of attorney regulation with Article 210(1) k.s.h. therefore assumes that if a power of attorney is granted on the basis of Article 210(1) k.s.h.

there is no 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) k.s.h. is subject to an established standard under Article 99(1) k.c. i.e.

where a specific form is needed for the validity of a legal act, the power of attorney for that act should be given in the same form. However, it cannot be overlooked that the decision given by the Supreme Court in the case reference no. II CSK 217/11 met with criticism of doctrine.

Alicia Saturday points out that the view expressed by the Supreme Court is based on the incorrect assumption that the provision Article 248(1) k.s.h. specifying the form in which they are taken by the meeting of the shareholders of the resolution, is a legion of specialities in relation to Article 99(1) k.c. 16 .

The author of the vote states that the ruling of the Supreme Court cannot be approved, and that the decision on the form in which the power of attorney is to be given to perform a legal act with a member of the board for which the special form ad solemnitat is reserved is essential for determining the effectiveness of the contract, as failure to form such a power of attorney leads to ineffective legal action with a member of the board.

The quoted speaker also indicates that according to Article 99(1) k.c. the power of attorney to perform a legal act for which an ad solemnitate special form is reserved should be granted in such a special form.

On the other hand, Mr Grykiel argued that there was no sufficient legal basis for the acceptance of the main thesis expressed by the Supreme Court in the judgment in question, excluding the application of the provisions of the law on the power of attorney in question under Article 210(1) k.s.h. 17 .

In his opinion, the arguments put forward by the Court of First Instance are very laconic and not convincing.

Moreover, the solution proposed by the Court of First Instance, contrary to the previous statements of the case law in this respect, would create a legal gap in the relevant issues relating to the granting, enforcement and consequences of the defective power of attorney regulated in the prescribed provision.

Under Article 210 k.s.h. we are dealing with the construction of a power of attorney within the meaning of civil law, only that granted by the assembly of shareholders, to whom the legislator in this particular case granted competence to make a declaration of will for the company. In all matters not regulated in k.s.h.

to the power of attorney with Article 210 k.s.h. should be based on Article 2 k.s.h. – apply the law on power of attorney[18].

This applies, in particular, to the design of representation, to the agent's personal requirements, to the effects of the action without being empowered or exceeding the scope of the appointment, or to the limitations on the agent's performance with himself.

1. View of the power of attorney given by the resolution of shareholders of a limited liability company Article 210(1) k.s.h.

second the views under discussion relate to the principle of unity of civil law. As already mentioned, on the basis of Article 2 k.s.h. in cases not regulated by k.s.h., the provisions of k.c. shall apply (right) and, where the jurisdiction (nature) of the legal relationship of the commercial company so requires, the provisions of k.c.

shall apply mutatis mutandis.

It must be pointed out that the need to refer to the regulations contained in the C.C., in particular the law on the power of attorney, has already been seen in the earlier Supreme Court case-law, since in the justification of the order 27 February 2009 19 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, the court indicated that, in case k.s.h.

does not contain a regulation of a specific issue, it should by Article 2 k.s.h. reach out to the standards in k.c.

In this context, it is also worth noting the ruling of the Court of Appeal in Warsaw from 19 March 2015, in the statement of reasons which it states directly, albeit laconically, that the power of attorney granted on the basis of Article 210(1) k.s.h. may apply the law on the mandate[20].

In addition, in the resolution of 30 January 2019[21], The Supreme Court has devoted an important part of its justification to considering the relationship between the law on the power of attorney contained in the C.C. to the regulation allowing the appointment of a proxy in a way Article 210(1) k.s.h.

Referring, inter alia, to the views expressed in the doctrine, the Supreme Court, in its resolution, stressed the need to take account of the interpretation process Article 210(1) k.s.h. the principles of unity of civil law, given the inexhaustible nature of the said regulation.

In the opinion of the Supreme Court, the norm derived from Article 210(1) k.s.h. provides only for the way in which the shareholder gives the power of attorney, as well as in which cases such power of attorney is required.

In contrast to the view expressed in the case II CSK 217/11, in the resolution III CZP 71/18 The Supreme Court held that the appointment of a proxy by a meeting of partners on the basis of Article 210(1) k.s.h. is the same as the appointment of the proxy by the company itself, acting by its authorities.

Moreover, according to the Supreme Court, in favour of a view that recognizes identity with the design of the law on the mandate of the General Court, and Article 210(1) k.s.h. is evidenced by the fact that the legislator uses the same term to specify the proxy, both in the local government and in the local government.

The Supreme Court emphasises in the explanatory memorandum of the resolution that it is deliberate and thoughtful to place Article 2 k.s.h. in the Act, which allows, depending on the situation, to apply directly the provisions of k.c. or as appropriate, if the given legal term used in k.s.h.

is not fully regulated and we are faced with such a legal condition with regard to the power of attorney from Article 210(1) k.s.h. In the Court’s view, there is no need to seek questionable arguments to demonstrate the difference between the mandate and Article 210(1) k.s.h.

and the mandate to which a special chapter is devoted, placed in the general part of the k.c. (Article 98-109 k.c.). Following such a line of thinking, the Supreme Court indicated that the power of attorney granted on the basis of Article 210(1) k.s.h.

is merely a modification of the default model of representation of the company in support of which the Court of First Instance submits a number of arguments. The Supreme Court derives First,, that k.s.h.

grants the supervisory board or the proxy the power to represent that company when entering into contracts with a member of the board or in a dispute with him.

The Supreme Court then points out that the meeting of shareholders obtains, by way of exception from the presumption of competence of the board of directors to conduct the matters and representation of the company, the power to represent the company from the o.o. on the appointment of a proxy with the indicated scope of authority.

After third, the power of the meeting of shareholders shall only be updated to a limited extent, in specific facts, i.e. when concluding a contract or a dispute between a board member and a company.

After fourth, extremely narrowly outlined by the legislature, the scope of the power of attorney makes an unacceptable grant in a way Article 210(1) k.s.h. General power of attorney in mode Article 210(1) k.s.h.

Finally, the Supreme Court points out that under Article 210(1) k.s.h. is not distinguished or this provision allows not only the power of attorney of the company in individually defined, individual contracts and disputes of a member of the board with the company, but also whether it may be a generic power of attorney, that is to say, to certain categories of activities involving a member of the board (but to this extent limited in the prescribed provision).

Resolution of the Supreme Court of 30 January 2019 (reference no.. III CZP 71/18) She met with approval in doctrine. Małgorzata Dumkiewicz and S. Kidyba positively assessed the position of this resolution, mitigating the previous view expressed by the Supreme Court in its judgment of 15 June 2012, reference no. II CSK 217/1122.

The authors point out that the position of power of attorney granted on the basis of a provision Article 210(1) k.s.h.

does not apply the law on power of attorney, and the power of attorney to act on behalf of a company in dispute with a member of its board of directors or when concluding an agreement with it is of an "autonomy" nature on the grounds of the K.s.h. was too far-reaching.

In the opinion of the authors, the Supreme Court rightly pointed out that this thesis should not be extended to the entire design of the power of attorney from Article 210(1) k.s.h. and oppose it to the power of attorney defined equally in the assumptions of the general section of the law for all private trading.

Therefore, in view of the statements of the doctrine and the latest position of the Supreme Court, considering the need to maintain a specific form of resolution in a manner Article 210(1) k.s.h.

reach out Article 99(1) k.c., 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 given in the same form. Consequently, according to this view, the power of attorney is granted in the form of Article 210(1) k.s.h.

will require a resolution to be adopted in a specific form, provided that the Act provides for such a form for a particular activity, such as in the case of a legal act governing property ownership.

6. Summary

In the light of the above considerations, first order to point out that the Supreme Court in the most recent case-law has softened the view that the power of attorney granted for representation in contracts and disputes with members of the company's board of directors under Article 210(1) k.s.h.

is a separate, own and comprehensive regulation. The Supreme Court also pointed out the need to take account of the interpretation process Article 210(1) k.s.h. principles of unity of civil law, as the regulation contained under Article 210(1) k.s.h.

is not comprehensive and provides only for the way in which the shareholder gives the power of attorney and for the cases in which such a proxy is required.

However, it should be borne in mind that the standard from Article 2 k.s.h. allows, depending on the situation, to apply directly or appropriately the provisions of k.c., if the legal institution is not fully regulated in k.s.h., as is the case with regard to the power of attorney granted under the procedure Article 210(1) k.s.h.

The convincing argument seems that the power of attorney with Article 210(1) k.s.h.

is merely a modification of the model of representation of the company to ensure the protection of the interests of the company and its creditors, and consequently it is unnecessary to seek arguments to demonstrate the difference between the mandate and Article 210(1) k.s.h.

and the mandate to which a special chapter is devoted, placed in the general part of k.c. Therefore, considering the possible need to maintain a specific form of resolution in a way Article 210(1) ed.

Article 99(1) k.c., 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 given in the same form. The above conclusion leads to the conclusion that the granting of power of attorney under the Article 210(1) k.s.h.

will each time require the adoption of a resolution in a specific form, provided that the Act provides for the need to maintain such a particular form for a particular activity.

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