Poland: withdrawal as sole managing director will be slightly more difficult from 2019

In the business world, situations often arise in which the only existing managing director wants to leave the company. There is then a real risk that the company may become incapable of action (so-called lack of leadership) and shareholders are not informed about this. The situation is particularly volatile when conflicts arise between the latter and the management. The question of the resignation from office of the only, or rather the last, managing director in case law and legal teaching has been controversial for many years.

Previous ECJ decision
In accordance with the Polish law of the corporations, it was not clear until now when the official resignation from office of the only managing director of a Polish LLC ("sp. z o. o.") becomes effective and, above all, to whom this should be declared. There were various opinions on this matter. The disputed legal question was decided by the Supreme Court on 31/03/2016 (III CZP 98/15) with a panel of seven judges. In the opinion of the Supreme Court, when the last managing director resigns from office, at the same time he represents the company passively, i.e. he is himself a recipient of his declaration of resignation, and this automatically becomes effective when it is submitted. This view has met with criticism, however. The opinion of the supreme Court of Justice was in particular accused for the lack of obligation to notify the shareholders, which impairs the security of legal and economic transactions.

New legal situation: more effort for resigning managing directors
According to the new provision law on the commercial companies, the only or last managing director is obligated to declare his resignation from office to against all shareholders. Otherwise, his declaration of resignation is invalid. In this regard, he must convene a shareholders' meeting in a timely and proper manner, which then decides on the appointment of a new managing director. The notice of resignation of the resigning managing director must be attached to the invitation to the shareholders' meeting.

Repealed effectiveness of the resignation from office
If the only Managing Director wants to leave, as of 2019 he must remember that his resignation from office will only become effective on the day following the shareholders' meeting. In the case of the shortest legally permissible convening period of 14 days, this means that the resigning Managing Director must hold his office at least for 15 days, because the resignation from office will only become effective on the 15th day after sending the invitation to the shareholders' meeting. This is particularly important when it comes to the obligations and the corresponding managing director liability in the case of imminent insolvency, especially with regard to the deadline for filing for insolvency or the existence of the prerequisites for insolvency.

Author: Marcin Śledzikowski