Legal requirement for all members of the Management Board to sign a document

Under the regulations of the Commercial Companies Code[1] (hereafter ‘KSH’) on capital companies, if the management is multi-member, it is possible to determine the manner of representation in the company’s contract or statutes itself (Article 205(1) KSH, Article 373(1) KSH).

However, if the contract/statute of the company does not contain any provision in this respect, cooperation shall be required to make statements on behalf of the company. two members of the Management Board or one a member of the Management Board, including a proxy.

It is clear that if the board is single, the sole member of the board will always act on behalf of the body. On the multi-member board, such representation will require appropriate provisions in the company contract. Under KSH, it is therefore the principle of signing documents by the Management Board in accordance with the rules of representation laid down in the contract/statute of the company or, unless the contract or statutes provide for such provisions, in accordance with the rules of the KSH.

The legislator considered it appropriate to derogate from the method of representation adopted in the company, introducing in certain cases the need for signatures on the document by all members of the Management Board.

According to Article 19 KSH, located in part of the general provisions on capital companies, signatures by all board members under a document issued by the company are required only if the law so provides.

The obligation to sign by all members of the Management Board therefore derives from the exceptional importance of the activity assumed by the legislator, as an instrument for strengthening the certainty and safety of trading by confirming certain circumstances by the entire composition of the management body of the company.

It is right to point out, however, that the point of regulation is to ensure that a certain category of documents is covered by the actual awareness of all members of the board and that the statements contained in this document are confirmed and accepted by all[2].

This provision therefore covers the specific issue of the in corpore board, all its members together.[3].

The terminology of KSH sometimes raised doubts among the representatives of doctrine. KSH uses the concept of operation of the company itself (in the sense of its board of directors), and sometimes mentions the operation of the board, but also individual members of the company.

The lack of a uniform position on this issue was evident primarily in the registration proceedings, which led to a number of obligations being addressed to the interested parties to remedy the shortcomings of the application or the provisions on their recovery.

Current content of the provision Article 19 KSH seems definitely to solve these ambiguities. This is confirmed by D. Kuprijanian, indicating that Article 19 KSH removes the doubts raised at the time by the problem of filing registered applications by the boards of capital companies[4].

Similarly, Mr Rodzynkiewicz concludes that the importance of this provision is mainly reflected in applications to the National Court Register[5]. As A.

Opalski emphasizes, the introduction to KSH Article 19 corrected the erroneous practice of requiring capital companies to submit, together with requests to the National Court Register, statements signed by the entire board of directors and to cooperate with them when notifying the meetings of companies[6].

The above mentioned provision Article 19 KSH refers only to the circumstances requiring the signature of all members of the board, arising directly from the Act. Under the term of the Act, any legal act of statutory rank is understood, not just KSH[7].

However, this provision should not be interpreted as extending — its application is required only if the law provides for expressis verbis.

This means – a contrario – that in all other cases in which the legislator does not explicitly indicate that signatures are required by all members of the board of directors, the rules laid down in the contract/statutory of the company or the general code provisions apply to the representation of the company.

Thus, unless the provision of the law contains point (e) The general rules for the representation of the company concerned will apply as regards the obligation for all members of the Management Board to sign.

There is no basis for speculation as to whether a body acting in a group is understood as a board or whether the application of general rules of representation is sufficient.

The legislator used the framework Article 19 KSH the concept of documents issued by the company.

The concept of document has been introduced into the Civil Code[8] (hereinafter ‘KC’) as amended with 10 July 2015 amending the Act from the date 8 September 2016[9] Content Article 773 KC, the document is a storage medium for reading the content of the document (which should be interpreted in the context of regulation Article 19 KSH based on Article 773 KC in conjunction with Article 2 KSH).

It therefore maintains its actuality of the claim (established before the introduction of the definition of a document to the KC) that the document is any object (material) by which the manifestation of human intellectual activity (a statement of will or knowledge) is established, signed and with evidence. As M rightly points out.

Rodzynkiewicz's concept of a document issued by the company is significantly broader than the civil-law declaration of will (although it undoubtedly covers it)[10].

This means that its interpretation should also be as broad as possible, as it may include not only any declaration of will (one-sided declarations, legal acts, legal formation statements), but also statements of knowledge or even the simplest information or assurances provided or in any way made available by the company.

Clearly, the provision also covers all types of pleadings and requests to the register court (both for entry and for submission of documents to the register file)[11].

Legislative under Article 19 KSH uses the deadline for signatures by members of the Management Board. It is clear that this is about the signatures of the board members by their own hands, enabling them to be identified unconditionally. These signatures must be made on a specific document for which the Act provides for such a need.

He rightly submits to D. Kupryjanczyk that there is no possibility of signing a proxy or a proxy established for a given activity.

The author rightly excludes the possibility for all members of the board of directors to grant a substantive power of attorney to sign a document for which the act requires signatures of the full board of directors, which results from the substance and function itself Article 19 KSH.

The essence of the requirement to obtain signatures of the entire personal composition of the board of directors is to include the content of the document with the actual awareness of all members of that body and the undisputed acceptance of it[12].

In my opinion, the principle of Article 19 KSH should also be used for liquidators of the company. According to Article 280 KSH shall apply to liquidators the provisions on members of the Management Board.

The provisions of the KSH provide for signatures by all members of the Management Board, among others, on the application for registration of a capital company.

In line with the identical content of the provisions Article 164(1), Article 30012(1), and 316 section 1 KSH The Management Board shall declare that the company is bound to the registered office of the company in order to be registered. The application for registration of the company shall be signed by all members of the Management Board.

The requirement for signatures on the application for registration by the full board of directors is of vital importance that it is, in effect, a confirmation by the board of directors of the effectiveness and regularity of the activities involved in the registration process of the company.

The application for registration of the capital company shall be accompanied by a list of shareholders signed by all members of the board (Article 167(2) KSH) or a list of shareholders of a simple stock company (Article 30012(4) KSH).

Moreover, at the registration stage of the company, the signatures of all board members require a statement from the management board of the company that contributions were made in full by all shareholders (Article 167(1)(2) KSH and Article 167(4)(3) KSH — in the event of the conclusion of a partnership agreement using a model contract), a statement from the management of a simple public limited company that contributions to cover shares have been made in the part provided for in the company contract (Article 30012(3)(3) KSH), and a statement from the board of directors of the public limited liability company that the statutory contributions required for shares and non-monetary contributions were legally made (Article 320(1)(3) KSH).

Therefore, the legislator considered it important that members of the board of directors should certify in the company that the share capital of the shareholders has been provided (which may affect the situation of individuals). third creditors of the company.

Similarly to the contributions of shareholders/shareholders at the stage of initial registration of the company, the relevant signatures of all board members in connection with the registration of the share capital increase shall include:

• a statement that the contributions to the increased share capital in the company of O.o. have been made in full (Article 262(2)(3) KSH);
• a statement that the contributions to cover new shares in a simple share company have been made in the part provided for in the resolution on the issue of shares or participation agreements (Article 300107(2)(3) KSH);

a statement that contributions to shares in a public limited company have been made, and where the payment of non-monetary contributions is to take place after the registration of the capital increase, that the transfer of those contributions to the company is ensured within the time limit laid down in the resolution on the increase in share capital (Article 441(2)(5) KSH).

The important importance of the Management Board's statements of contributions to shares and shares (both at the registration stage of the company and the subsequent increase in its share capital) provided for by the legislature is reinforced by the under Article 291 KSH, Article 300123 KSH (in P.S.A.) and Article 479 KSH (in S.A.) the property liability of board members towards the creditors of the company. If the members of the board of directors of the capital company intentionally or by negligence provided false data in the statements described above on the contribution of the company, they correspond to the creditors of the company jointly and severally with the company by three years from the date of registration of the company or registration of the share capital increase.

Moreover, KSH provides for the obligation for all members of the Management Board to sign:

• on the list of shareholders of the company with a registered office (Article 188(3) KSH);
• submitted to the registry court a new list of shareholders in a simple public limited company (Article 30034(8) KSH);

for cross-border transformation processes of companies:

in a statement that the cross-border merger resolution has not been contested within the prescribed time limit or that the action for appeal has been definitively rejected or rejected or that the time limit has expired for the appeal and the declaration on the exercise of the rights of creditors and shareholders under the law and the cross-border merger resolution submitted to the registry court together with the application for a certificate of conformity with the law of the Polish cross-border merger, as applicable Article 51612(2)(8)(10) KSH;

in a statement that the cross-border division decision has not been contested within the prescribed time limit or that the action for appeal has been definitively dismissed or rejected, or that the time limit has expired for the appeal and the declaration on the exercise of the rights of creditors and shareholders under the law and the cross-border division resolution, submitted to the register court together with the application for a certificate of conformity with the Polish cross-border division, according to Article 55015(2)(8)(10) KSH;

in a statement that the cross-border conversion resolution has not been contested within the prescribed time limit or the action for appeal has been definitively rejected or the time limit for the appeal and the declaration on the exercise of the rights of creditors and shareholders under the law and the cross-border conversion resolution, submitted to the register court together with the application for a certificate of conformity with the Polish cross-border conversion, has expired, according to Article 58013(2)(8)(10) KSH.

Notwithstanding the liability indicated above (Article 291, Article 300123, Article 479 KSH), the above-mentioned statements of knowledge of board members are submitted under penalty for their veracity and reliability. According to Article 587 KSH:

section 1. Who, in the performance of the duties listed in Titles III and IV, declares false data or presents it to the company's authorities, to the state authorities or to the person appointed for review shall be subject to fines, imprisonment or imprisonment for up to years. 2.

section 2. If the perpetrator acts unintentionally, he is subject to fines, imprisonment or imprisonment for a year.

Therefore, unless the provisions of the KSH provide for an explicit obligation for all members of the Management Board to sign, this activity belongs to the sphere of representation of the company, which means that it is sufficient for its effectiveness to submit signatures in a manner resulting from the contract/statute of the company.

However, unless there are any rules in this respect, representation should apply according to Article 205(1) KSH or Article 373(1) KSH. There are of course no obstacles to the document being signed by more board members than is required despite the requirement to maintain the general principle of representation.

Submission of signatures by all board members (although the law does not provide for such a requirement) only strengthens the value of the content contained in the document, as it is confirmed in the declaration of full composition of the body authorised to represent the company.