12 April The Constitutional Tribunal issued a judgment in which it found the partial unconstitutionality of the provisions on subsidiary liability of the members sp. z o.o. The judgment settles doubts as to the personal liability of a member of the board of directors for the company's obligations by a decision which has been taken in proceedings initiated after he has lost his status as a member of the board of directors. This may mean more protection for former board members based on Article 299 k.s.h.
This judgment was given in response to a legal question asked by the District Court for Warsaw:
„is Article 365(1) Act of 17 November 1964 The Code of Civil Procedure to the extent that it provides for a court to be bound by a judgment on the basis of which a limited liability company was initiated in an unsuccessful execution process on the basis of Article 299(1) Act of 15 September 2000 The Code of Commercial Companies v. the defendant who lost his status as a member of the company's board of directors before the date of initiating the proceedings in which the decision against the company was taken is in accordance with Article 45(1), Article 64(1) and Article 77(2) Constitution",
„is Article 299(1)(2) Act of 15 September 2000 The Code of Commercial Companies, in so far as it does not provide for the possibility that the defendant, a member of the management board of a limited liability company, may be released from liability by demonstrating that the claim, as stated by the ruling on the basis of which the unsuccessful enforcement was initiated against the company, does not exist, in the event that the decision was taken in proceedings initiated after the defendant's loss of status as a member of the management board of the company, is compatible with the Article 45(1), Article 64(1) and Article 77(2) Constitution"?
The Court drew attention to the need to ensure an effective constitutional right to the court, while stressing the particular importance of the directive ensuring that the parties have the right to be heard and that an effective defence can be taken to ensure the protection of their legitimate interests in ongoing judicial proceedings. In accordance with this requirement, each party should be able to present its right, to present relevant facts and evidence.
The Court drew attention to the need to ensure effective safeguarding of the constitutional right to court and, at the same time, stressed the particular importance of the directive ensuring that the parties have the right to be heard and that effective defence can be taken to ensure the protection of their legitimate interests in ongoing judicial proceedings.
In the situation considered by the court, which asked the Court of Justice with a legal question, the execution of the company's assets proved to be ineffective and the issue of liability for the obligations of the former President became current.
The former President could not have been party to this proceeding, and it was even highly likely that he had no knowledge of the ongoing proceeding. In addition, there was a risk that the case against the company was related to a non-existing claim, but due to the lack of response from the company, the claim became due (valid order).
In such a situation, even if the former President had knowledge and evidence of the fact that the claim did not actually exist, there is no possibility of effective release from responsibility. Construction Article 299 k.s.h. and its exonerative grounds do not allow to raise the allegation of non-existence of claims.
The Court held that:
Article 365(1) The Code of Civil Procedure, in so far as it provides for the binding of the court by a judgment on the basis of which a limited liability company was initiated ineffective enforcement, in a process based on Article 299 § The Code of Commercial Companies against the defendant, who has lost his status as a member of the company's board of directors before the date of initiation of the proceedings in which the ruling against the company was brought, is incompatible with the Article 45(1) and Article 77(2) Constitution of the Republic of Poland.
Article 299(1)(2) The Commercial Companies Code, in so far as it does not provide for the possibility that the defendant, a member of the management board of a limited liability company, may be released from liability by demonstrating that the claim, as stated by the ruling on the basis of which an unsuccessful enforcement was initiated against the company, does not exist, in the event that the decision was taken in proceedings initiated after the defendant's loss of the status of member of the management company, is incompatible with the Article 45(1) and Article 77(2) Constitution.
The Constitutional Court's ruling is a decisively positive decision for the members of the Board. In this way, they were protected in the event of attempts to take responsibility for obligations which were confirmed only in a court dispute initiated after they had resigned. However, it should be noted that this is a rather narrow ruling.
The question of whether a former member of the board who has lost his status in the course of the proceedings concerning the claim or who has been a member of the body after the judgment has been finalized in the dispute may also be released from responsibility on the basis of the above judgment will have to be answered by doctrine and practice.