Abstract

On 31 March 2016, after many years of uncertainty and discrepancies both in the doctrine and caselaw, the Supreme Court Resolution adopted by the Panel of Seven Judges provided an answer to the question as to whom a member of the Management Board of a shareholding company submits a statement of resignation from their position. Pursuant to Art. 205 § 2 of the Commercial Companies Code (as regards limited liability companies) and Art. 373 § 2 of the CCC (as regards a member of the Management Board of a joint-stock company), a member of the Management Board should submit their resignation statement to another member of the Board or the commercial proxy. If such member is the sole member of the Board being at the same time the sole shareholder of a limited liability company, the appropriate form of resignation is a notarial deed (Art. 210 § 2 CCC) – the same refers to joint-stock companies when the sole shareholder is also a member of the Management Board.

The thesis of the resolution does not indicate to whom a statement of resignation from the position held is submitted by the sole member of the Management Board, the last member of the Management Board or all members of the Management Board when such company does not have a commercial proxy. The substantiation of the decision provides that in the Supreme Court’s opinion there are no grounds for exemption from the scope of passive representation of the company by the Management Board of statements of resignation made by the Board Members and thereby (in case of a statement of resignation submitted in writing or electronically by the sole member or all members of the Management Board resigning simultaneously) the person authorised to represent the company in this respect is the very member of the Management Board who has filed a resignation statement.

The article aims to provide an answer to the question concerning the meaning of that Resolution which, in the case described herein above, assumes that passive representation of a company is exercised by the same member of the Management Board who has just submitted a resignation statement, and to attract attention to the practical problems related to the need to supplement the reasoning of the Supreme Court with procedural questions connected with resignation of the sole member of the Management Board or all members of the Management Board resigning simultaneously.