How to Effectively Resign from the Position in the Management Board of a Limited Liability Company?

In what form should the statement of resignation from the position of a board member be submitted? To whom should the resignation statement be submitted? How to effectively resign when you are the only board member? We present the answers to these and other questions in the publication below.

Form of the Resignation Statement

The law does not provide any special form for the statement of resignation from the position of a board member. However, for practical reasons (the need to present evidence justifying the deletion of a board member from the National Court Register), it is recommended that the statement be made in writing.

You can also encounter the view that in the case when the resignation is submitted by the only board member, who is also the only partner of the company, the resignation statement should be submitted in the form of a notarial deed.

Recipient of the Resignation Statement

Over the years in doctrine and jurisprudence, there were various views on the person who should receive the statement of resignation from the position of a board member.

One of the views indicated that the appropriate statement should be submitted to the supervisory board, and in the absence of this body, to the proxy appointed by the meeting of partners. In turn, when the proxy was not selected, it was necessary to lead to his appointment.

In 2016, a resolution of 7 judges of the Supreme Court was adopted, in which it was stated that the statement of a board member about resignation from this function is submitted to one board member or a proxy.

The above resolution did not resolve doubts on how to proceed when the only board member of the company submits a resignation. Therefore, in recent years, before the amendment to the Commercial Companies Code, it was established that in the case of a single-person board or when the last board member submits a resignation, the statement of resignation from the position of a board member should be submitted to the company, i.e., delivered to the company’s address.

Termination of the Mandate

The resignation of a board member, when the board is multi-person, is effective from the moment of submitting the resignation to the remaining board members (or one of the board members or a proxy).

In the case of the resignation of the only board member, his statement becomes effective only from the next day after the day on which the meeting of partners was convened. In practice, this means that at least 2 weeks must pass from the submission of the resignation to the expiration of the mandate. It should also be noted that for the effectiveness of the resignation, it is not necessary for the meeting of partners to agree to it. Moreover, during the meeting of partners, it is not necessary to appoint a new board (although this should be the purpose of this meeting).

It is also worth remembering that the resignation from the position of a board member is not dependent on the registration of the appropriate change in the National Court Register. The entry in the National Court Register regarding the change of the board composition is declaratory - it only confirms the fact of making a change.

Summary

In the case of a multi-person board, we recommend submitting a statement of resignation from the position of a board member to the remaining board members of the company. However, in the case of a single-person board or when the last board member submits a statement, the resignation statement should be sent to all partners along with an invitation to the meeting of partners.