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 with regard to their company’s
operation by way of resolutions. For the sake of the
proper functioning of these bodies and of 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 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 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.
MILLER, CANFIELD,
W. BABICKI, A. CHEŁCHOWSKI I WSPÓLNICY SP.K.
ul. Batorego 28-32
81-366 Gdynia
Tel. +48 58 782-0050
Fax +48 58 782-0060
gdynia@pl.millercanfield.com
ul. Nowogrodzka 11
00-513 Warszawa
Tel. +48 22 447-4300
Fax +48 22 447-4301
warszawa@pl.millercanfield.com
ul. Skarbowców 23a
53-125 Wrocław
Tel. +48 71 780-3100
Fax +48 71 780-3101
wroclaw@pl.millercanfield.com
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certain recent legal developments of selected areas of law. For this reason the information contained in this publication should not form the basis of any
decision as to a particular course of action; nor should it be relied on as legal advice or regarded as a substitute for detailed advice in individual cases.
The services of a competent professional adviser should be obtained in each instance so that the applicability of the relevant legislation or other legal
development to the particular facts can be verified.