On 30 January 2015, the Supreme Court adopted a resolution that significantly affects the rules of representation for many companies. This resolution deals with the issue of so-called joint irregular commercial proxy, 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 did not object to registering such commercial proxies. However, the resolution passed by 7 judges of the Supreme Court on 30 January 2015 (case no. III CZP 34/14) changes this by clearly excluding the possibility of registering a commercial proxy that stipulates the proxy may represent the company only jointly with another board member.
The Supreme Court concluded that the wording of Art. 1094 of the Civil Code does not support the idea that the other person covered by the joint commercial proxy could be someone who is not a commercial proxy. If the legislators had intended for the other person to be someone other than a commercial proxy, this would have been explicitly stated in the statute. The Court also noted that if granting an irregular commercial proxy were permissible, the effectiveness of the commercial proxy’s declarations of intent would depend on the intent of a board member, which contradicts the very rationale of a commercial proxy. A commercial proxy is meant to be a special attorney-in-fact who can make declarations of intent independently within the scope of matters laid down in the statute.
The Supreme Court’s resolution 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 proxies. Thirdly, business operators must modify the rules of representation of their companies if they include a joint irregular commercial proxy.
Despite these changes, it is still possible to establish rules of representation that involve one member of the management board cooperating with a commercial proxy. This requires amending the articles of association to allow a board member and one of the joint commercial proxies to make declarations of intent on behalf of the company. Under such joint representation, it would be the board member whose independence in representing the company would be restricted, rather than the commercial proxy.