Entrusted With Performing of the Duties of the President of the Board

Kolegialny zarząd spółki akcyjnej: członkowie równi i równiejsi?

Author: Ryszard Czerniawski
Institution: Uniwersytet Humanistycznospołeczny SWPS w Warszawie
Year of publication: 2016
Source: Show
Pages: 104-113
DOI Address: https://doi.org/10.15804/tpn2016.2.05
PDF: tpn/11/TPN2016205.pdf

Coherent and logical system of functioning not only of the Management Board itself but especially of the mutual relationships between the Members of the Management Board of a joint stock company as introduced in the Polish Code of Commercial Companies, for at least several years is being more and more often violated, especially in so-called state-owned companies. This takes place through the appointment of the person which „performs the duties of the President of the Board” and accepting this unknown to the Code of Commercial Companies institution by registry courts. Moreover, such a practice is recognized also in the normative acts and the case law, where the concept of the person „performing the duties of a Member of the Board” is described as an institution distinct from the „Member of the Board”. The term „an individual performing duties” is not unknown to Polish law. Its essence is to ensure the continuity of operations of a particular entity or establishment for a specified time, necessary for the appointment of a new manager (manager, president, director etc.). In general, the „performing duties” status is acquired by the head of the body or establishment which steps down until a particular post is taken by the new manager and there should be an unambiguous legal basis for doing so. Recently, more and more often we can see in normative acts the notion of individuals „entrusted with performing of the duties of the President of the Board” and besides, specific for such a post, temporariness, it is linked with a statutory ability to „withdraw entrusted responsibilities”. In the sphere of commercial companies we witness situations where the registry courts, despite the lack of legal basis, order registration in the National Court Register of individuals to whom company’s governing body „entrusted with performing of duties of the President of the Board” despite the fact that the Code of Commercial Companies does not provide for such a possibility. The institution of „entrusting the performance of duties of the President of the Board” is unknown to this legal act. The essence of the problem was described by the Polish Supreme Court in its judgment of 25 October 2016. Together with a decision to return the case to be reconsidered by the District Court, the Supreme Court noted that it is necessary that the District Court determines from which legal provision such a right arises in matters of labour law. One should bear in mind that this issue is not limited only to labour law.

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