The rules regarding the functioning of corporate authorities of companies limited by shares (spółki kapitałowe) are laid down in the Code of Commercial Companies (“CCC”). Management boards and supervisory boards of such companies make decisions regarding their company’s operation by way of resolutions. For the sake of the proper functioning of these bodies and the day-to-day operations of the company, these bodies must be able to adopt certain decisions as expeditiously as possible even when their members are not able to meet physically in one place. The statute treats differently the issue of resolutions being adopted with the use of means of distance communications by, respectively, the management board and the supervisory board.
The rules governing the adoption of resolutions by management boards of companies limited by shares are provided for in Article 208 of the CCC in relation to limited liability companies and in Article 371 of the CCC with respect to joint-stock companies. Neither of these provisions deals with the issue of the management board’s passing a resolution “remotely.”
The situation is different in the case of supervisory boards. In accordance with 222 § 4 of the CCC and also in accordance with Article 388 § 3 of the CCC, the supervisory board may adopt resolutions in writing or through means of instantaneous communication only if the company’s statutes so provide. However, the legislature introduced some exceptions to this rule. This procedure for passing resolutions is not permitted when electing the chairman or deputy chairman of the supervisory board, for appointing a member of the management board, or to suspend or dismiss such persons from their duties.
This raises the question of whether it is a legitimate interpretation to argue that management boards may also adopt resolutions “remotely.” Unfortunately, there is no straightforward answer to this question.
Commercial law doctrine offers two conflicting views. According to the first view, which is based on an a contrario interpretation, since the legislature did not provide explicitly in legal regulations for the possibility of management boards’ passing resolutions in this manner, then it is not permitted.
The second view is that since the Code of Commercial Companies does not include any prohibition to this effect, such a method of voting by the management board of a company limited by shares is permitted, provided that it is contemplated under its articles of association or statutes or, alternatively, in the by-laws of the management board. It should be noted that Article 208 of the CCC is dispositive in nature, and therefore the company’s shareholders are free to adopt different rules in this area.
It would be advisable for the legislature to regulate this matter in a uniform manner by introducing the possibility of management boards’ adopting resolutions with the use of means of distant communication. This would dispel all doubts not only within the commercial law doctrine, but also, and most importantly, in management boards of companies limited by shares, which lack certainty as to the consequences of passing their resolutions via means of distant communication. From the legal perspective, there are no reasonable arguments to justify different treatment of corporate bodies.