Representation of a limited liability company in a contract with a civil law partnership whose partner is a member of the management board of the limited liability company – commentary on the judgment of the Supreme Court of 8 November 2024, II CSKP 1733/22

Abstract

The subject of the commentary is the Supreme Court’s judgment of 8 November 2024 concerning the representation of a limited liability company in a contract concluded with a civil law partnership, one of whose partners is a member of the management board of that limited liability company. The commentary is approving. The author agrees with the Supreme Court’s position, according to which a limited liability company should be represented in such situations by the supervisory board or an attorney appointed under a resolution of shareholders’ meeting in order to avoid a potential conflict of interest and circumvention of the regulation of Article 210 § 1 of the Commercial Companies Code through the use of a civil law partnership structure. The linguistic and functional interpretation of the provision in question confirms the need to protect the interests of the company, its creditors and its shareholders by excluding members of the management board from representation in such contracts. The commentary elaborates on the arguments presented by the Supreme Court. It was also clarified that the provision of Article 210 § 1 of the Commercial Companies Code should be applied only when the other party to the contract is a civil law partnership in which a member of the management board participates, and not – as could be inferred from the thesis of the judgment – only the partners of a given member of the management board, excluding that member of the management board.