Claim against a member of the management board under Article 299 of the Commercial Companies Code (KSH) – What can be claimed? How to calculate interest?

Which member of the management board is responsible for the company’s debt under Article 299 KSH?

If we want to determine who is specifically liable for the company’s obligation, it is worth starting by checking in the KRS register who was a member of the management board at the time when the obligation arose (and later). Simply put, the initial group responsible for the company’s debt will be determined by the time frame from the moment the obligation arose (e.g., the signing of a contract, receipt of an invoice) until the moment the company is sued for payment.

For example, if the company commissioned a service from a graphic designer who did not receive the payment due from the company, the graphic designer should seek payment from those members of the management board who held their position within the time frame between the date the contract was signed (or the date when the payment should have been made) and the filing of the lawsuit for payment against the company.

What can be claimed in a lawsuit under Article 299 KSH against a member of the management board?

The first step is usually to sue the company itself (usually, because it may happen that, for example, the company has been liquidated despite having debts – in such cases, obviously, it cannot be sued).

Once we have a final court judgment against the company and proof that enforcement against the company’s assets is ineffective (typically, this is an order from the bailiff to discontinue enforcement due to its ineffectiveness), the next step is to seek payment from the member of the management board. Before filing a lawsuit with the court, it is worth sending a payment demand to the member of the management board, setting a deadline for payment.

However, if payment is not made, the lawsuit against the member of the management board can include the following claims:

• Demand for payment of amounts resulting from the final court judgment against the company – along with delay interest (e.g., calculated from the day the payment deadline indicated in the payment demand previously sent to the management board member has passed),
• Demand for payment of the capitalized statutory delay interest (which can also include interest for delays in commercial transactions) as of the date of the payment demand sent to the management board member, calculated from the dates indicated in the judgment rendered against the company – along with statutory interest for delay (e.g., calculated from the day the payment deadline indicated in the demand previously sent to the management board member has passed),
• Demand for reimbursement of court costs incurred in the payment proceedings against the company,
• Demand for payment of capitalized statutory interest for delay in paying (or reimbursing) court costs, calculated from the date the judgment against the company became final – along with statutory interest for delay (e.g., calculated from the day the payment deadline indicated in the demand previously sent to the management board member has passed),
• Demand for reimbursement of enforcement costs, including the costs of legal representation, in the enforcement proceedings against the company.

As can be seen, a lawsuit under Article 299 KSH is not limited to the amount specified in the court judgment rendered in the case against the company. According to the case law of the Supreme Court in recent years, an unsatisfied creditor of a limited liability company (sp. z o.o.) can also claim interest from a member of the management board for the period after the claim for compensation arose – until the moment of demanding payment of the company’s debts from the members of the management board. It should be remembered that the unpaid interest for delay or default from the company should be summed up and expressed in monetary terms (hence the need for capitalization).

The Supreme Court’s most recent case law also grants the company’s creditor the right to claim interest for delay in fulfilling the compensation obligation from the management board members – in other words, in addition to the interest mentioned in the previous paragraph owed by the company itself, the creditor can also claim interest for delay from the management board member, calculated from the expiration of the deadline set in the demand for payment (which is why it is advisable to send such a demand in advance).

It is worth knowing that the scope of claims under Article 299 KSH is quite broad. It often happens that the amount of interest significantly increases the initial amount owed by the company.