We often face the situation that our counterparty, on a given transaction, does not represent the owner of the company or a member of the board of directors, but the person who derives his authority from the prosecution. That's the kind of person we call the pro-Procurator.
It is worth emphasizing that only a natural person with the full capacity for legal action can be a proxy, so it cannot necessarily be a legal person, such as a capital company (and it is worth remembering that nothing stands in the way of a capital company being a proxy). It is characteristic of the prosecution that it may be granted only by an entrepreneur who is subject to an entry in the CEIDG or the Register of Entrepreneurs of the National Court Register.
The way the prosecution is regulated is of a guarantee nature, as in economic trade, the scope of the attorney's mandate is the same for each prosecutor, which has a positive effect on the certainty of trade.
The D.A. distinguishes from the power of attorney the scope of the attorney's appointment, and it is permanent and includes the power of attorney to judicial and extrajudicial acts relating to the establishment. Prosecutions cannot be effectively restricted to third parties.
However, it is worth considering that it can be limited to the scope of cases entered in the register of the company’s branch (branch office). There is also nothing to prevent the prosecution from being limited in internal relations between the entrepreneur and the proxy – e.g.
to a certain value of the transaction, whereas the general power of attorney has a narrower character than the prosecutor and empowers the proxy to perform on behalf of the powerholder the activities of the ordinary board.
The way the prosecution is regulated is of a guarantee nature, as in economic trade, the scope of the attorney's mandate is the same for each prosecutor, which has a positive effect on the certainty of trade.
The way the prosecution is awarded depends on the legal form of the economic operator. Each prosecutor must be given in writing and entered in the CEIDG or KRS business register. In the case of commercial law companies, the following rules apply:
- in personal companies, the consent of all shareholders with the right to conduct the affairs of the company, unless otherwise provided for in the agreement,
- in capital companies, however, requires the approval of all board members.
A very important issue related to the institution of the prosecution is the obligation to register it in the relevant register for the entrepreneur, with the entry being purely of a declaratory nature – meaning that the proxy can act as an entrepreneur after being granted the prosecution and before the prosecution is entered in the relevant register. Of course, for the sake of certainty of turnover, it is preferable that the granting of the prosecution is disclosed in the relevant register.
The prosecution's way of acting is also dependent on the entrepreneur's will, and so several persons may be granted the prosecution together (total prosecution) or separately (self-proclaimed prosecution), moreover, the prosecution may also include the right to act together with a member of the management body or a partner entitled to represent the commercial partnership. However, in any case, statements or letters sent to the trader may be made to one of the persons to whom the prosecution has been given.
The D.A. can be canceled at any time. In a personal company, the D.A. may revoke any partner who has the right to conduct the affairs of the company and in a capital company any member of the board of directors.
The prosecution also expires as a result of the removal of the entrepreneur from the Central Register and Information on Business Activity or from the Register of Entrepreneurs of the National Court Register, as well as the declaration of bankruptcy, the opening of liquidation and the transformation of the entrepreneur, the death of the prosecutor, the establishment of a curator on the basis of Article 42(1) kc, but the loss of the entrepreneur's ability to act does not result in the prosecution's expiry.