Pursuant to Art. 293 of the Code of Commercial
Companies Act of 15 September 2000 (Journal of
Laws of 2013, item 1030, as amended, hereinafter:
the “CCC”), members of the management board of
a limited liability company are liable to the
company for any damage caused by acts or
omissions in breach of the law or the provisions of
the articles of association, unless they are not at
fault. Furthermore, they must exercise diligence
entailed in the professional nature of their activity
while performing their duties.
It is accepted in case-law and in the doctrine that
the liability of board members for damage caused to the company is contractual in nature (ex
contractu) and is triggered only for damage caused
by unlawful acts or omissions on the part of a board
member, i.e. such action or omission that is in
breach of the law or the provisions of the articles of
association. It is also noted in the case law and by
legal writers that board members may discharge
themselves of liability by demonstrating the
absence of intentional fault, and hence by
demonstrating that their acts or omissions occurred
with due diligence exercised.
It is also uniformly accepted that a breach of the
obligation to exercise due diligence may not
provide, as such, sufficient grounds for holding a
board member liable. It has been recognised so far
that any action or omission by a management board
member would need to breach a specific provision
of the law or a contractual provision. In its
judgement of 18 August 2011 (case file no. O ACa
54/11), the Court of Appeals in Warsaw held that
the action alleged to have breached Art. 201 of the
CCC may not be the basis for the liability of a board
member. This is because that provision does not
define clearly the method and rules for
representing the company and managing its affairs,
and consequently no obligation to correctly manage
the affairs of the company may be inferred from it.
Based on these rules of liability, it was possible to
formulate the view that members of the
management board of a company are not liable –
insofar as they act within the law and do not breach
the articles of association – for any actions that
involve excessive business risk.
The judgment of the Supreme Court of 24 July
2014, case no. II CSK 627/13, appears to have made
that position obsolete. In the said judgment, the
Supreme Court, while admitting that a breach of
the obligation to exercise due diligence is not as
such sufficient basis for holding a management
board member liable, found nevertheless that Art.
201 § 1 of the CCC (“The management board shall
manage the affairs of the company and represent
the company.”) may be construed to imply the
obligation of board members to manage affairs of
the company to the interest of the same. According
to the Supreme Court, culpable actions by board
members involving excessive business risks are
contrary to the interest of the company. As such,
they infringe the general directive laid down in Art.
201 § 1 of the CCC and provide grounds for the
liability of a board member under Art. 293 § 1 of
the CCC.
This view of the Supreme Court extends the liability
of management board members towards the
companies represented by them and makes it
possible for board members to be held liable for
decisions that involve excessive business risk. It is
clear that any commercial decision is in practice
subject to business risk. Yet, no provision of the
law defines the limit of acceptable business risk.
Hence, the decision of the Supreme Court may open
the door to discretion in holding management board
members liable for managing company affairs, by
introducing imprecise and unclear criteria of
liability.
The above-described judgment of the Supreme
Court of 24 July 2014 may be considered
controversial from a practical point of view and
induce company managers to adopt a very
conservative approach while making business
decisions. Therefore, it should be expected that the
view in question is merely incidental and not likely
to establish any new consistent case-law.
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.