On 30 January 2015, the Supreme Court adopted a
resolution that may significantly affect the rules of
representation of many companies. This resolution
deals with the issue of so-called joint irregular
commercial proxy, that is a situation where the
commercial proxy is authorised to represent the
company solely together with a member of the
company’s Management Board. For many years
registry courts made no obstacles in registering
commercial proxies so defined. The resolution
passed by 7 judges of the Supreme Court on 30
January 2015 (case no. III CZP 34/14) changes
things completely by clearly excluding the
possibility that commercial proxy stipulating that a
commercial proxy may represent the company only
jointly with another board member be registered in
the National Court Register.
In adopting the resolution in question, the Supreme
Court concluded that the wording of Art. 1094 of
the Civil Code provides no grounds to accept that
the other person covered by the joint commercial
proxy may be a person who is not a commercial
proxy. Had the legislators intended that the other person identified in the commercial proxy be a
person who is not a commercial proxy, this would
have been stated expressly in the statute. The
Supreme Court also noted that if the granting of an
irregular commercial proxy were permissible, for
the declaration of intent on behalf of the company
by a commercial proxy to be effective, a
declaration of intent by a board member would also
be required. Such commercial proxy is contrary to
the very rationale of commercial proxy, by
distorting the statutory standard. A commercial
proxy is a special attorney-in-fact, who – unless it is
a joint commercial proxy – may make declarations
of intent independently within the scope of matters
laid down in the statute. Were it to be accepted
that the effectiveness of the commercial proxies’
declarations of intent depends on the intent of a
board member, the commercial proxy would not be
an autonomous attorney-in-fact, as the legislators
wished, but an assistant of the manager, to whom
the former is subordinated. This restriction on the
commercial proxy is contrary to the very nature of
power of attorney, especially in the case of a
commercial proxy, since, on the one hand, a
commercial proxy is authorised by the management
board to act independently to perform all the
matters relating to the operation of the company’s
business (with the exception specified in Art. 1093
of the Civil Code), while, on the other hand, he or
she is prohibited from performing any acts
independently, that is in fact being approved by a
board member. Such restriction of the commercial
proxy would be considerably farther reaching that
the limitation of material scope of commercial
proxy envisaged in Art. 1091 § 2 of the Civil Code.
The commercial proxy would not be able to perform
any acts without having them approved by a board
member.
The Supreme Court’s resolution under analysis has
serious implications for business operators. Firstly,
after 30 January 2015 registry courts will refuse to
register such commercial proxies with the National
Court Register. Secondly, registry courts are
required to delete, ex officio, any entries relating
to irregular commercial proxy. Thirdly, business
operators are forced to modify the rules of
representation of their companies if one of them
includes a joint irregular commercial proxy,
according to the National Court Register. It should
be added that any acts performed to date by
commercial proxies that were required to act
jointly with a board member remain in effect if
made prior to 30 January 2015.
The Supreme Court’s resolution puts business
operators operating as corporate bodies in a difficult position. Nevertheless, it is possible to
establish the rules of representation in such a way
that they involve one member of the management
board cooperating with a commercial proxy. To this
end, it is necessary to amend the articles of
association so that it is possible for a board member
and one of the joint commercial proxies to make
declarations of intent on behalf of the company. It
should be remembered that under such joint
representation of the company it would be the
board member whose independence in representing
the company would be restricted, rather than the
commercial proxy. Let us not forget to appoint a
second joint commercial proxy if only one such
proxy acting together with a board member
pursuant to the irregular commercial proxy has
been appointed so far.
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
Disclaimer: This publication has been prepared for clients and professional associates of Miller Canfield. It is intended to provide only a summary of
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.