Reflecting the organization of the internal structure of capital companies in the most synthetic way possible, it is necessary to point out a certain dualism, expressed in the separation of managerial bodies (the company's management board) and those of an ownership nature (the shareholders' meeting). In order to ensure the effective functioning of the company by expanding the entities authorized to represent it, companies decide to grant a commercial power of attorney - which results in the appointment of a commercial proxy in the company. That is, a person who, pursuant to the power of attorney granted to him, is authorized to represent the company. Proxy may also be granted by entrepreneurs running sole proprietorships.
Law Office of Piotr Kłodziński what he does every day legal services for companies and companies from Warsaw – should you require it, we will gladly assist, including in appointing a commercial agent and obtaining registration in the appropriate registry.
In the further part of this article you will read:
What is a commercial proxy?
Proxy and power of attorney – scope of commercial representation
Who can be a proxy?
Types of commercial power of attorney
Who appoints a proxy?
Entry in the National Court Register
How much does it cost to appoint a proxy?
Expiry and revocation of commercial power of attorney
What is a commercial proxy?
Prokura is a special type of power of attorney, and legal literature points to its unique formulation in the context of adapting this power of attorney to the specifics of business activities.
In the most general terms, prokura is a power of attorney granted by an entrepreneur subject to registration in the Central Register and Information on Business Activity or in the register of the National Court Register – as is the case with a limited liability company.
The institution of prokura dates back to the inter-war period, when it was originally regulated in the Commercial Code of 1934. Interestingly, the provisions relating to prokura – despite the repeal of the act itself – remained in force until the entry into force of the amendment to the Civil Code of 14 February 2003. Due to its origins, prokura is also referred to as "commercial power of attorney".
Currently, the institution of prokura is regulated by provisions contained in Title VI "Representation", Chapter III "Prokura" of the Civil Code (hereinafter: cc). Due to the broad range of organisational and legal forms of conducting business activities and the distinct organisational structures of individual units, for the correct granting of prokura, one should take into account – in the case of a limited liability company, which is the subject of this article – the regulations of the Code of Commercial Companies (hereinafter: ccc), which define which body is competent to grant or revoke prokura. Legal services for companies in Warsaw This is just one of the areas of law that ours deals with Law Firm.
Proxy and proxy – scope of commercial representation
As indicated above, due to the specific nature of procuration, the legal provisions concerning power of attorney apply mutatis mutandis to procuration, subject to the reservation that the regulation concerning the obligation to grant power of attorney in a special form, if a special form is required for the validity of a legal act (Article 99 § 1 of the Civil Code), shall not apply, as procuration is granted in writing under pain of nullity. A notarial form is also often used.
The scope of procuration arises from the regulations. It covers judicial and extrajudicial actions related to the conducting of an enterprise.
It is worth emphasizing the functional connection of the actions taken by the entrepreneur's representative with the conducting of the enterprise, meaning that procuration grants them the authority to undertake all actions aimed at sustaining the business activity. This observation is all the more important because the Civil Code, in a way, limits this undoubtedly broad authority by enumerating the actions that are not included in the scope of procuration and which require the granting of a special power of attorney for their legally effective completion.
The establishment of negative limits for procuration is based on indicating actions that, in essence, directly or indirectly lead to the divestment of the enterprise, making it impossible to use it, or limiting or effectively preventing business activity using the enterprise.
Important! According to Article 1093 of the Civil Code, the requirement to grant a special power of attorney concerns the following actions:
performing a legal act pursuant to which it is put into temporary use,
selling and encumbering real estate.
If the entrepreneur's representative undertakes the aforementioned actions without prior granting of special power of attorney, such an action will be subject to the sanction of suspended ineffectiveness (Article 103 of the Civil Code) or the sanction of invalidity (Article 104 of the Civil Code).
The broad scope of a commercial power of attorney is further confirmed by the case law of administrative courts in tax matters. This is evident in the context of granting power of attorney to sign tax returns. It is worth noting that the Tax Ordinance (hereinafter referred to as the TO) treats a power of attorney to sign a tax return as a special type of power of attorney, which is submitted to the tax authority competent for the tax concerned by the given return (Article 80a § 2 of the TO).
Although the provisions concerning power of attorney in tax proceedings apply mutatis mutandis to the said power of attorney, due to the fact that the cited Article 80a of the TO is of a special nature compared to Article 138d of the TO, which regulates general power of attorney for acting in all tax matters and other matters within the jurisdiction of tax authorities – in accordance with the interpretive directive that a special provision repeals a general provision (Latin: lex specialis derogat legi generali) – general power of attorney does not authorise the signing of tax returns. As case law indicates, however, this regulation does not apply to commercial attorneys-in-fact. The establishment of a commercial power of attorney excludes the need to grant general power of attorney to the commercial attorney-in-fact in tax matters, and even power of attorney to sign tax returns; therefore, a commercial power of attorney covers both general power of attorney for acting in all tax matters and power of attorney to sign tax returns.
Judgment:
It is impossible to uphold the view that a proxy holder is not authorised to act in proceedings initiated by a claim for overpayment and to sign a corrected declaration without specific power of attorney for this purpose. Such authorisation arises from the nature of the proxy and does not require such a representative to additionally hold power of attorney granted under Article 80a of the Tax Ordinance.
Judgment of the Provincial Administrative Court in Lublin of 20 February 2018, case no. I SA/Lu 1047/17
Important! As a rule, a proxy cannot be limited with legal effect towards third parties. Pursuant to Article 1091 § 2 of the Civil Code, a proxy cannot be limited with effect towards third parties, unless a specific provision¹ provides otherwise.
Limitations are effective only in the principal-proxy relationship and may lead to the proxy’s liability for damages, however, actions taken by the proxy in the name of the principal remain valid.
A specific provision limiting a proxy towards third parties is the provision regulating the institution of a branch proxy (Article 1095 of the Civil Code). A branch proxy is a power of attorney that includes authorisation for matters entered into the register of a branch. The aforementioned legal construct will find application particularly in relation to business activities of significant size, where there is an extensive structure with distinct internal organisational units.
Interestingly, an analogous regulation can be found in Article 204 § 2 of the Commercial Companies Code, which expresses the prohibition of limiting a management board member's right to represent the company with legal effect towards third parties.
Who can be a proxy?
The fundamental requirement for an authorised representative (prokurent) imposed by the legislator relates to legal capacity (this capacity is graded – full legal capacity, limited legal capacity, and lack of legal capacity are distinguished)2. An authorised representative can be a natural person with full legal capacity. Against this background, we can observe a significant difference compared to power of attorney, where the representative is not required to have full legal capacity.
Full legal capacity is acquired upon reaching the age of majority, while limited legal capacity refers to minors who have reached the age of thirteen and individuals who have been partially incapacitated.
It is also worth pointing out certain personal restrictions related to authorised representatives; general provisions of the Commercial Companies Code introduce a prohibition for individuals convicted by a final judgment for specific economic offences to hold the position of an authorised representative. Furthermore, specific provisions relating to a limited liability company (spółka z o.o.) introduce a prohibition on combining the functions of a supervisory board member or audit committee member with the function of an authorised representative (Article 214 § 1 of the Commercial Companies Code).
Who appoints the proxy?
In capital companies, which include a limited liability company, the appointment of a proxy takes place in two stages. Establishing a commercial power of attorney and granting a commercial power of attorney require a clear distinction.
Establishing a commercial power of attorney
Pursuant to Art. 208 § 6 of the Commercial Companies Code, the appointment of a commercial proxy requires the consent of all members of the management board. The above consent takes the form of adopting a resolution of the management board. This provision is dispositive (or binding), which means that the company agreement may provide for different regulations regarding the manner of establishing a commercial proxy.
Granting a commercial power of attorney
The next step after establishing a commercial power of attorney (prokura) by passing a resolution of the management board is the granting of the procura. The granting of a procura, in accordance with the previously applicable provisions of the Civil Code, must be made in writing. Failure to observe the aforementioned form results in the invalidity of the legal transaction. The written granting of a procura should be signed in accordance with the principles of representation adopted by the company.
A slightly different situation arises in the case of a limited liability company with a sole member of the management board. Due to such an internal organisational structure, as a general rule, the distinction between the stage of establishment and the granting of a procura is irrelevant, as there is a subjective identity in terms of the individuals authorised to undertake these actions.
However, it should be noted that the company agreement, in the case of a sole member management board, may provide for additional requirements in the form of shareholder participation in the procedure for appointing the authorised signatory, and on the basis of such contractual provisions, the two-phase appointment of the authorised signatory becomes relevant.
Types of commercial power of attorney
Due to the criterion of the number of persons authorised to represent the entrepreneur and the necessity of their cooperation when exercising this representation, we can deal with an independent procuration (sole or separate) and a joint procuration.
In the context of distinguishing between independent and joint procuration, case law points to a presumption of representation arising from the signature placed by the authorised person.
Judgment:
"By virtue of Article 1091 of the Civil Code, a power of attorney (prokura) authorises the holder to perform all judicial and extrajudicial acts connected with running an enterprise, with the exceptions expressly stated in Article 1093 of the Civil Code. A power of attorney may be granted to several persons jointly or separately (Article 1094 of the Civil Code). Therefore, the signature of a power of attorney holder under an agreement gives rise to a presumption that they were authorised to perform the act as a separate power of attorney holder, and the signatures of two power of attorney holders give rise to a presumption that a joint power of attorney was granted to them." Judgment of the Court of Appeal in Krakow of 5 October 2018, case reference I ACa 1646/17
A joint power of attorney may take the following configurations:
authorization to cooperate with another proxy,
authorization to cooperate with another proxy or member of the management body (mixed proxy) and
authorization to cooperate only with a member of the management body (inappropriate joint commercial power of attorney).
Improper joint procuration was introduced into the legal system by an amendment that came into force on 1 January 2017. Until then, this manner of representation had been a point of dispute for both legal doctrine and case law. Against these ambiguities, an enlarged panel of the Supreme Court considered the legal issue of the admissibility of registering an improper joint procuration. Interestingly, by a resolution of seven judges, having the force of a legal principle, the Supreme Court then stated that it was inadmissible to register a single authorised representative in the register of entrepreneurs in the National Court Register with the reservation that they could only act jointly with a board member. Due to the established practice of registration courts, which had been registering improper joint procurations, the legislator decided to add Article 1094 § 11 of the Civil Code. The indicated resolution is now merely of historical significance, as the justification for such a position was stated as the lack of statutory regulation of improper joint procuration, which, however, became outdated after the entry into force of the aforementioned amendment to the Civil Code.
It should also be pointed out that joint procuration and the associated duty of cooperation concern active representation – making declarations of will on behalf and for the principal. On the other hand, the issue of passive representation (acceptance of declarations of will) in the case of joint procuration is regulated by law, according to which declarations addressed to the entrepreneur or service of documents may be made to one of the persons to whom procuration has been granted. Therefore, despite the existence of a duty of cooperation among the entrepreneur's representatives (joint procuration), as indicated in legal doctrine, Article 1094 § 2 of the Civil Code appears to be absolutely binding, and any contrary provisions are considered invalid.
Entry in the National Court Register
Due to the specific nature of procuration, which is a special type of power of attorney, the legislator has established a requirement to report the granting and expiry of procuration to the National Court Register. Such a notification should be made within 7 days of appointing the procuator, using form KRS-Z3, to which a completed form KRS-ZL should be attached. The application should be directed to the registry court competent for the company's registered office, exclusively by electronic means. It should also be noted that, in accordance with Article 19a § 5 of the KRS Act, the application for the registration of a procuator must be accompanied by a declaration from that person, including their consent to be appointed and their address for service.
It is also worth emphasising that, despite the statutory obligation to disclose the circumstances of appointing a procuator in the relevant register, this entry is merely declarative in nature – confirming an existing factual situation, as a procuator can effectively perform their function from the moment they are appointed by the company's management board.
Judgment:
A power of attorney (prokura) is valid even if it has not been entered into the court register. However, entry into the register is of significant importance from the perspective of legal certainty and security of transactions, for two reasons. Firstly, it is associated with a presumption of the validity of the granted power of attorney, arising from Article 17(1) of the Act on the National Court Register. Secondly, the authorised person (prokurent) gains the ability to effectively prove their authority by means of a copy or extract from the court register. This applies both to the authorised person's participation in business transactions and in court proceedings; the authorised person should, at their first procedural action, attach to the case files a copy or extract from the court register, which replaces the power of attorney required for an agent (pełnomocnik) – as per Article 89 § 1 of the Code of Civil Procedure.
Supreme Court ruling of 20 October 2005, case reference II CK 120/05
How much does it cost to appoint a proxy?
Registration fees are associated with the obligation to report to the register the circumstances of granting (and expiring) a commercial power of attorney. The fees that the company (or more precisely, persons authorized to represent it or the company's management board) must pay when submitting an application for entry in the National Court Register are PLN 250 as a court fee and PLN 100 for publishing information in the Court and Economic Monitor.
Expiration of commercial power of attorney
According to the Civil Code, a power of attorney (prokura) expires upon: 1) deregistration of the entrepreneur (in the case of a limited liability company, this will be deregistration from the National Court Register), 2) declaration of bankruptcy, 3) opening of liquidation, 4) transformation of the entrepreneur, 5) appointment of a curator4, 6) death of the authorised representative.
4 In accordance with Article 42 of the Civil Code, the court appoints a legal person's curator when it cannot be represented or manage its affairs due to a lack of an organ or a lack of authorised members within the organ for its representation. The curator is subject to the supervision of the court that appointed them, and their task is to represent the legal person and manage its affairs within the limits specified by the appointing court's certificate, until an organ is appointed or its composition is supplemented, or a liquidator is appointed. Due to the scope of the curator's powers, which are identical to the powers of a company's authorised representative (prokurent), the power of attorney expires. During the period of curatorship, a power of attorney cannot be granted.
It is also worth noting factual situations that the Civil Code does not associate with the expiry of a power of attorney. Firstly, this is the death of the principal. Secondly, the principal losing their legal capacity.
Judgment:
In accordance with Article 1091 § 1 of the Civil Code, procuration is a power of attorney granted by an entrepreneur subject to mandatory registration in the register of entrepreneurs, which includes the authority to perform judicial and extrajudicial actions related to the conduct of the business. Pursuant to Article 1097 § 2 of the Civil Code, procuration expires upon the deletion of the entrepreneur from the register, as well as upon the announcement of bankruptcy, the opening of liquidation, and the transformation of the entrepreneur. Procuration expires upon the death of the procurator (§ 3). The death of the entrepreneur or the loss of their legal capacity does not cause the procuration to expire (§ 4). The cited provision clearly indicates five cases of procuration expiry and two factual circumstances where procuration does not expire. These are the death of the entrepreneur and the loss of their legal capacity. Thus, the loss of management by the Company does not cause the procuration to expire. The procurator is, by law, authorised to represent the Company in judicial and extrajudicial matters related to the conduct of the business.
Judgment of the Supreme Administrative Court of 29 November 2019, case file I GSK 257/17
Judgment:
"The provisions of law do not exclude the possibility for a duly appointed independent proxy to exercise their powers in representing a legal person principal, during a period when the granter of the proxy has no management board."
Ruling of the Voivodeship Administrative Court of 7 February 2017, case file number I SA/Kr 1173/17
Regarding the revocation of a proxy, the provisions of the Civil Code state that a proxy may be revoked at any time. However, the procedure for revoking a proxy is specified in the provisions of the Commercial Companies Code, according to Article 208 § 7, a proxy may be revoked by any member of the management board – in contrast to the appointment of a proxy, where the consent of all members of the management board is required.
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