Author: Mykola Zembra

The controversial and conflicting views of both doctrine and judicatory issue of representation of the capital company at the submission of a statement by a board member on resignation from the board was decided by resolution of the Supreme Court consisting of seven judges dated 31 March 2016 (ref. act: III CZP 89/15). The first President of the Supreme Court, by letter of 24 September 2015, lodged with the Supreme Court to take the seven judges of the resolution on the following legal issue:

“ In the case of submission by a board member of a statement on the declaration of wanting to resign from this function, is the capital company, if there is no contractual (statute) provision, represented by one member of the board or a proxy (art. 205 § 2 and art. 373 § 2 of the CCC), the supervisory board or a proxy appointed by the resolution of the shareholders ’ meeting or the general meeting of shareholders (art. 210 § 1 and art. 379 § 1 of the CCC), by the body authorized to appoint members of the board, or - in the absence of a supervisory board - the shareholders' meeting (general meeting)?"

In resolving the above legal issue, the Supreme Court composed of 7 judges passed a resolution in which it stated that:

“ The statement of a board member of a capital company on resigning from this function is submitted - with the exception provided for in art. 210 § 2 and art. 379 § 2 of the CCC - to the company represented in this regard in accordance with art. 205 § 2 or 373 § 2 of the CCC."

According to the above, as a rule, the submission of a statement of a board member on resigning should be made ​​to one member of the board or proxy, i.e. in accordance with the so-called passive representation set out in art. 205 § 2 or 373 § 2 of the CCC. The exception to this rule is only the regulation of art. 210 § 2 and art. 379 § 2 of the CCC, which refers to a situation in which the sole shareholder of the company is also the only member of the board. In such a situation resignation requires a notarial deed and transfer of the excerpt of this deed by a notary performing the action to the registry court. As an indication of the contents of the resolution included in the list of exceptions, it can be said that the representation of the company in accordance with art. 205 § 2 or 373 § 2 of the CCC will also apply when the resignation consists of a single-person board member or the last member of a group board or when all members of a group board submit it at the same time. It would seem that resignation in such situations should be submitted for the proxy, who could be appointed by the company's board only for the acceptance of the resignation. This issue is likely to be explained in the explanatory memorandum to the Supreme Court's resolution, which will be released at a later date.

The manner of representation of a company in accepting resignation, designated by the Supreme Court, shall also apply to a member of the supervisory board and the liquidator, due to the proper application of the rules concerning the board member.

In conclusion, it should be noted that the Supreme Court should resolve the long-term dispute in doctrine, as well as unify the conflicting case-law to date on how to represent the company when submitting the statement of a board member on resignation from the board. Undoubtedly, it will therefore contribute to greater legal certainty in the area of ​​effective submission of resignation by members of capital company bodies.