Article 202 of the Code of Commercial Companies stipulates a number of options for expiration of the term of a member of the board in a limited liability company. In accordance with the regulations of Art. 202 § 4 of the Code of Commercial Companies, the term of a member of the board in a limited liability company shall expire e.g. as a result of their death, resignation or dismissal from the Management Board.
Expiration of the term of a member of the board in a limited liability company raises concerns whether resignation is a unilateral act and submission of a statement of will by members of this body shall be sufficient for its effective submission, or it is a bilateral legal transaction, and therefore, it should also be adopted by the company.
Pursuant to Article 202 § 5 of the Code of Commercial Companies, provisions on termination of a commission by the person receiving the commission shall be applicable for submitting resignation by a member of the board, which unambiguously determines that resignation from the position of a member of the board is a unilateral statement and term of a member of the board shall expire in consequence of the resignation itself. However, such statement shall be submitted at the company, in accordance with Art. 61 § 1 of the Civil Code (hereinafter referred to as Civil Code), a statement shall be considered as submitted upon reaching the company in such manner that the company can get acquainted with its content. Therefore, resignation from the position of a member of the board shall take place by submitting a statement of will and be effective upon communicating it to the company. Statement of resignation from the position of a member of the board shall become effective upon reaching the addressee of the statement, in this case a limited liability company (compare judgment of the Supreme Court of 5 March 2015 (ref. no.: V CSK 331/14).
Due to the above, a question arises: who can be the addressee of such statement? There are discrepancies regarding the above issue in the literature and judicial decisions. In the decision of the Supreme Court of 19 August 2004 (ref. no.: V CK 600/03), it was adopted that 'a statement of resignation, like notice of termination, requires being communicated to the party involved (...). In both material and legal terms, the unit interested in this statement is the company as a legal entity. (...) 'However, this opinion remains highly controversial; therefore, several other options need to be considered, so as to avoid the charge of ineffective submission of a statement of resignation and the resulting consequences.
One of the doctrine views refers to Art. 210 § 1 of the Code of Commercial Companies in this regard, claiming that resignation from a position in the board of a company is consistent with the broadly understood contractual relationships between the former member of the board and the company, in consequence of which a statement of resignation from the position of a member of the board should be addressed either to the supervisory board of the company (one of its members), or to a proxy appointed through a resolution of the shareholders' meeting. This position was confirmed by judicial decisions of the Supreme Court, because e.g. in the sentence of 3 November 2010 (ref. no.: V CSK 129/10), the Supreme Court concluded that the proxy of a limited liability company appointed by the shareholders' meeting shall be authorised to receive a statement containing resignation of a member of the board from their position.
How about the situation when either the supervisory board or a proxy has not been appointed in a particular company? We should agree with the opinion that in such case resignation can be addressed to the shareholders' meeting as the body responsible for appointing a proxy pursuant to Art. 210 § 2 of the Code of Commercial Companies, to the address of the company. In the sentence of the Court of Appeal in Kraków of 10 March 2015 (ref. no.: III AUA 1516/14), it was concluded that the shareholders' meeting itself shall be the body authorised to accept resignation from the position of a member of the board in a company.
There is also a view in the doctrine according to which a member of the board may submit their statement of resignation to another member of the board or proxy appointed in the company (compare Kodeks spółek handlowych, Komentarz 2015 [Code of Commercial Companies, Commentary 2015] by Jacek Bieniak, dr Michał Bieniak, dr Grzegorz Nita – Jagielski, prof. dr hab. Krzysztof Oplustil, Robert Pabis, dr Anna Rachwał, dr hab. Marcin Spyra, dr Grzegorz Suliński, dr Marcin Tofel, prof. dr hab. Robert Zawłocki). However, the possibility of submitting resignation to the proxy arouses significant controversy and remains an isolated opinion.
A member of the board cannot bear negative consequences in the situation when there are no persons authorised to represent a limited liability company or bodies authorised to receive statements of will on behalf of the company, therefore judicial decisions and doctrine provide for a wide group of addressees of such statement. This is due to the fact that resignation from the position of a member of the board of the company is an entitlement of a member of the board which cannot be restricted in any way. Additionally, it shall be noted that the effectiveness of a statement of resignation or dismissal from a position shall not depend on an entry made in the National Court Register.
Publication date: December 10, 2015, author: Joanna Musiał - Attorney