For only a few years now, the provisions of the Commercial Companies Code have been regulating the manner in which the resignation of Board Members of a limited liability company may be submitted. Until the 2019 amendments to the Commercial Companies Code, numerous disputes arose against the background of the issue in question, finding their finale in court. In turn, the courts had many problems with unifying the line of jurisprudence, which led to contradictory decisions. How, therefore, on the basis of the applicable regulations, can one effectively resign from membership of the Management Board of a limited liability company in the absence of a Supervisory Board and a proxy appointed by a resolution of the shareholders’ meeting?

Art. 202 § 4 of the Commercial Companies Code indicates that the mandate of a Member of the Management Board expires, inter alia, upon resignation. Resignation is a unilateral legal act – this means that the consent of the company is not required for its effectiveness. Regardless of the reasons behind such a decision, the resignation does not require justification and will always be effective. A different issue is the potential liability for damage caused to the company by an unjustified resignation.

It is theoretically possible to resign orally. This is because there are no requirements as to the form in which the declaration of resignation from the Board of Management is to be made. However, as a precaution and for evidentiary reasons, it is advisable to comply with the written form. The only exception is when the sole Board Member is at the same time the sole shareholder of the company, in which case a notarial deed is required for the resignation declaration to be effective, as is the case for other legal transactions.

The statement of resignation should be submitted to the company. The provision does not indicate which body of the company it refers to, and for years this issue remained disputed. Some courts advocated the necessity of submitting the declaration to the body authorised to appoint the Management Board or the Supervisory Board. However, the Supreme Court, in a resolution issued in the case ref. no. III CZP 89/15 of 31 March 2016, ruled, that the addressee of the statement of resignation should be – as a rule – another Member of the Management Board or a proxy. This is justified by the content of Article 205 § 2 of the Code of Commercial Companies, according to which declarations made to the company and service of letters on the company may be made on one Member of the Management Board or a proxy.

Exceptions to this rule are situations where the resignation is tendered by a single Management Board Member or by the last Member of a multi-member Management Board, or by all Members of a multi-member Management Board simultaneously. Therefore, no Board Member’s mandate will be filled, and in order for a Board Member’s resignation to be effective, he or she must tender his or her resignation to the shareholders while simultaneously convening the General Meeting of Shareholders (two weeks in advance), as provided for in art. 233¹ of the Polish Commercial Companies . Article 235 § 1 of the Code of Commercial Companies, according to which it is the Management Board that is entitled to convene the Shareholders’ Meeting, does not apply in this case. Resignation will be possible even if the Shareholders’ Meeting has not appointed a new Management Board. The member of the Management Board no longer has to be present at the convened Shareholders’ Meeting, and the resignation is submitted even if the Meeting does not take place , e.g. due to his or her dismissal or lack of quorum, or if not all shareholders are present. The will to resign is expressed through a declaration submitted to the shareholders and, pursuant to the second sentence of art. 202 § 6 of the Code of Commercial Companies, it is sufficient only to enclose it with the invitation to the Assembly. Therefore, in view of the third sentence of art. 202 § 6 of the Code of Commercial Companies, the effectiveness of the resignation occurs on the day following the day on which the Meeting of Shareholders was convened. However, a member of the Management Board will be liable for damages pursuant to Article 293 § 1 of the Code of Commercial Companies, if the Shareholders’ Meeting does not take place due to inadequate preparation of the Meeting convened by him/her.

An important obligation related to the resignation is to comply with the obligation to disclose the change in the composition of the Management Board in the National Court Register. The obligation to apply for the change is primarily incumbent on the Management Board, as the former Management Board Member may only notify the registration court of the resignation. However, the notification should also result in changes being made to the National Court Register. Incidentally, it should be noted that it is possible to regulate this procedure differently in the articles of association. Therefore, before submitting the resignation, it is worth making sure that the articles of association do not introduce any modifications in this respect.

Do you have any doubts about making declarations in your company ? Contact us !

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sekretariat@blumski.pl

Our law firm is experienced in providing services to companies, including participation in complex transactions, and this experience stems, among other things, from holding managerial positions in companies in the Bank Zachodni WBK S.A. Group (currently Santander Bank Polska S.A.) and being a Chairman of Supervisory Board in the company listed on the stock exchange.