Coronavirus pandemic SARS-CoV-2 forced significant amendments to the provisions of the Law on cooperative law concerning new technical possibilities for the adoption of resolutions by cooperative authorities.
The possibility of voting in cooperatives using means of distance communication was made by virtue of two Legal acts: Act dated 31 March 2020 amending the Act on Special Solutions for Prevention, Prevention and Control COVID-19, other infectious diseases and their emergency situations and certain other laws; and Act dated 16 April 2020 specific support instruments for the spread of the virus SARS-CoV-2.
The newly added provisions to the law cooperative law certainly increase flexibility in the adoption of resolutions by cooperative bodies. The changes introduced are also intended to provide a step towards simplifying the regulation of cooperatives
Preliminary issues
By virtue of the above mentioned two amendments were introduced to the Cooperative Law Act, including detailed provisions: Article 35(41-44) on voting on board and supervisory boards, Article 36(9-13) governing the vote at the general meeting, Article 37(5) relating to the vote at the meeting of representatives and the wording of the provisions was amended. Article 35(3)(5).
Under the new regulations contained in the Law, cooperative law, each member of the supervisory board or the board of directors of the cooperative has been authorised to request a meeting of the supervisory board or board together with its proposed agenda or to request a specific resolution in writing or using means of direct distance communication.
Although it had previously been possible to adopt resolutions and exercise voting rights using electronic means of communication on the board of directors and the supervisory board of the cooperative, so it had to result directly from the statutes or regulations of the body.
In the current state, the adoption of resolutions using electronic means of communication is an alternative to the traditional way of adopting resolutions.
On the other hand, with regard to the general meeting and the meeting of representatives, this way of adopting resolutions may take place if the board or supervisory board has ordered a specific resolution to be adopted in this way.[1].
Formal requirements. Vote
An alternative way of adopting resolutions at a distance may in practice give rise to doubts as to the principles of exercising the right to vote, including from a technical point of view and also to the recording of those resolutions.
First, the concept of "measures of direct distance communication" should be focused.
In the absence of a legal definition of the above term in the Cooperative Law, the legal definition of ‘electronic means of communication’ used in the Electronic Services Act, according to which electronic means of communication are ‘technical solutions, including electronic devices and software tools working with them, enabling individual distance understanding using data transmission between electronic systems and in particular electronic mail’, should be used.
Therefore, the concept of direct distance communication means which can be used when voting in cooperative bodies should be understood to mean technical or electronic means and software tools which cooperate with them, which allow individual distance communication through the transmission, transmission and reception of data between electronic systems by means of wires, radio waves, optical or other electromagnetic means.[2].
The statutes of the cooperative, the notification of the meeting of the body or the notification of the electronic vote, and the rules of procedure should specify the possibility of exercising voting rights by means of distance communication. In addition, they shall include information on the way in which the vote is to be made by means of direct distance communication and on the fact that the President has received the vote.
The form of voting must take the form which will enable the identification of voting members of cooperative bodies and, moreover, ensure the security of electronic communications between them and other members of the body.
The vote shall be deemed to have been cast when the statement of the member of the body is delivered to the chair without delay, i.e. as soon as possible, which should be further specified in the notice of vote.
The President shall count the votes cast and state whether the formal and material conditions necessary for the adoption of a specific resolution have been met[3]. Furthermore, it is required that all members of the body be properly informed of the vote by means of direct distance communication.
The resolution must also be properly recorded. This includes the general meeting and the meeting of representatives. On the other hand, the issue of minutes of board and supervisory board meetings depends on cooperatives as the provisions of the Cooperative Law do not provide for similar rules in this respect.
The minutes shall state the correctness of the convocation, the ability to make a resolution, the number of votes cast, specifying the votes cast in favour and against and the abstentions and the objections raised by the voters.
The minutes shall be signed by the chairman of the general meeting and by other persons indicated in the statutes. It is worth noting that the minutes of the general meeting or the meeting of representatives may also be drawn up by a notary, as the cooperative decides.
Given that the provisions indicate that the use of direct communication means only concerns the exercise of the right to vote, the person who minutes the conduct of the general meeting or meetings of representatives should be present at the sitting.
The newly added provisions to the law cooperative law certainly create flexibility in the adoption of resolutions by cooperative bodies. The amendments are also intended to provide a step towards making the regulation of cooperatives more flexible.
[1] Dr. Mateusz Żaba, ILO 2021, No 18, Legalis
[2] Ibid.
[3] Cf. A. Zbiebień-Turzańska, Resolution as a form of legal act [in:] Private Law System. T. 21. Cooperative Law, under K. Pietrzykowski, Warsaw 2020, Legalis, p. 205–206, Nb 12.