Abstract

The fact that a bank or a brokerage house operating as a joint-stock company chose to employ the provision of Art. 368¹ of the Commercial Companies Code, voluntarily or mandatorily under Art. 18 (1) and (2) of the Act of 16 December 2016 on the Rules for Management of State-owned Property, gives rise to a question whether for the appointment of its management board member it is necessary to conduct a selection process referred to in the above-mentioned regulations or such process could be replaced by the Procedures (Policies) of Assessments of Suitability of candidates for these functions adopted in banks and brokerage houses, referring to European soft laws, i.e. the Guidelines of the European Banking Authority (EBA) and the European Securities and Markets Authority of 21 March 2018 on suitability assessment for management body members and key function holders. However, this creates a state of a serious legal hazard. It consists in the possibility of challenging the validity of the origin of the mandates of members of a bank or brokerage house management board in case of accepting the view, rejected in this article, as to the need for the separate conduct of the above-mentioned selection procedure in a situation when in a concrete case of appointment of a board member such procedure has not been formally carried out.