Joanna Jurasz

Attorney at law (Poland)
Associate Partner
Phone: +48 61 624 49 31

The letter of resignation from the management board in an incorporated company has profound implications for the legal status of the resigning person and the company. For the management board member it means leaving the company and a relief from the obligations which, if breached, could hold him/her liable towards the company. For the company it changes the composition of the board, which may not necessarily be legally right afterwards. 

Who should the board member file the resignation with?

Despite the importance of this issue the case law used to be inconsistent when it came to the correct addressee of the letter of resignation. The conflicting court judgements brought uncertainty about the effective date of the resignation and the effectiveness of the resignation itself. 

In its resolution of 31 March 2016 the Supreme Court held that a management board member of an incorporated company should file the letter of resignation with the company in line with the statutory rules of representation (except for single-member companies). Those rules say that the management board represents the company in making as well as accepting declarations of intent. Declarations of intent towards the company and letters to the company may be delivered to one of the management board members or the company's commercial attorney (prokurent). 

Management board's duties upon resignation of a board member

The above indicates that the management board should represent the company also in accepting the resignation letter from one of the board members. In this context, the declaration is deemed delivered at the time one of the other board members or the commercial attorney has a chance to read it in the normal course of business. The Supreme Court also dealt with a situation where a sole board member or all board members tender a resignation. The justification to the said resolution explains that the resignation letter should then be delivered to the company's address. It is deemed effectively delivered at the time it arrives at the company so that the necessary actions which the resignation necessitates can be taken.

Furthermore, the court held that the resignation letter might stipulate a different effective date. However, the letter cannot be conditional.

Resignation of a sole management board member in a single-member company

An exception to the above rules is the procedure applicable to declarations of intent made in a single-member company. A shareholder who holds all shares, or is the sole shareholder while shares belong to him and the company, and performs at the same time the function of the sole management board member, must tender his/her resignation in the form of a notarial act. The notary then notifies the registry court by forwarding a copy of the notarial act. The same applies to joint-stock companies.

Supreme Court's justification to the board member resignation 

In the justification to the resolution the Supreme Court emphasised both the board member's interest (meaning the ability to resign) and the company's interest (meaning the ability to take actions to form a proper governing body).  It seems that this court resolution reconciles the interests and eliminates the uncertainties about the resignation from the management board.

Our attorneys-in-law also offer legal advice in Poland on other issues. They are at your disposal in Rödl & Partner offices in: Gdansk, Gliwice, Cracow, Poznan, Warsaw, Wroclaw.

5.08.2016 r.