Only board member resigns from his function
The Supreme Court, in its resolution of March 31, 2016, file number III CZP 89/15, explained to whom a member of the management board should resign from this function. This issue was submitted to the Court, as the Code of Commercial Companies does not specify who represents the company when submitting a declaration of resignation by a management board member. In the issued resolution, the Supreme Court paid particular attention to the case where the only partner or shareholder is also the only member of the management board. What should the resignation of the only management board member look like?
Resignation of a board member
The resignation of a member of the management board from the function shall terminate the mandate by operation of law. On the other hand, the provisions on termination of the order by the contracting party shall apply to the submission of the resignation itself. It follows that the declaration of will to resign is a unilateral act that does not require acceptance, i.e. consent to it. However, the declaration must be submitted to a person authorized to represent the company.
What form should resignation of the only management board member take?
In the opinion of the Supreme Court, when the sole partner or shareholder of the company is also the sole member of the management board, his declaration of resignation should be submitted in the form of a notarial deed. The notary then notifies the registry court of such a legal act by sending an extract from the notarial deed.
To whom should the resignation of the only management board member be submitted?
The Supreme Court indicates two options for resignation: by the sole member of the management board and by all members of the management board. According to the Court, the declaration of resignation may be submitted to the company's proxy. Then a situation may arise where after all members have submitted their resignation, only a commercial proxy will remain in the company.
Particularly noteworthy is the second view of the Supreme Court expressed in the resolution, referring to the resignation of the only member of the management board from the function.
If the company does not have a proxy, and the only partner or shareholder is the only member of the management board, the resignation of the only management board member may be handed over to himself.
Such a conclusion results directly from the justification of the resolution: There are no justified obstacles to passive representation of the company in cases of a written or electronic declaration of resignation from the function of the only management board member or all members of the management board resigning at the same time who resigned.
It is also worth noting that this view of the Supreme Court is supported by its statement that the resignation of the only member of the management board from the function may not be subject to any restrictions. Hence, the resigning only member of the management board is not legally obliged to take steps to appoint a new management board. However, the Supreme Court emphasized that: By submitting a declaration of resignation and taking, either earlier or in the event of postponement of resignation - later, appropriate actions, justified by resignation, protect against possible liability for damage that the company could suffer as a result of resignation. Therefore, a management board member resigning from the function should take care to protect himself against any damage that may be incurred by the company as a result of his resignation.
In addition, the Supreme Court indicates one more possibility for the sole member of the management board to resign - the resigning person may appoint a company's attorney specifically for the purpose of accepting his resignation statement.