Introduction
The Polish Family Foundation Act establishes a comprehensive framework for contesting resolutions adopted by foundation organs that contravene statutory provisions. This mechanism serves as a critical safeguard, protecting the legitimate interests of all stakeholders against ultra vires conduct by foundation bodies. The statutory scheme, while drawing upon analogous provisions in corporate law, presents distinctive features that merit careful examination by practitioners engaged in family foundation governance.
I. Grounds for Seeking a Declaration of Invalidity
A. The Scope of “Statutory Contravention”
An action for declaration of invalidity lies where a resolution of the management board, supervisory board, or beneficiaries’ assembly conflicts with applicable law. Significantly, the statutory reference to contravention “of a statute” must be construed expansively. The relevant legal framework encompasses the entirety of universally binding legal provisions, including:
- The Constitution of the Republic of Poland
- Ratified international agreements
- All parliamentary statutes (extending well beyond the Family Foundation Act itself)
- Executive regulations issued pursuant to statutory authorization
- Directly applicable provisions of European Union law
It bears emphasis that mere inconsistency with the foundation’s articles of association does not constitute a sufficient predicate for an invalidity action. Where a resolution contravenes only the governing documents or the foundation’s stated purposes, the appropriate remedy lies in an action for rescission pursuant to Article 82 of the Act, rather than a declaration of invalidity.
B. Substantive Versus Procedural Violations
Statutory contravention may manifest either in the substantive content of a resolution or in procedural deficiencies attending its adoption.
Illustrative Substantive Violations:
- Appointment to the management board of an individual simultaneously serving on the supervisory board, in contravention of the statutory incompatibility provisions
- Adoption of a resolution authorizing return of assets contributed to the foundation’s initial capital to the founder, absent specific statutory authorization
- Distribution of benefits to beneficiaries in a manner that transgresses creditor protection provisions
Illustrative Procedural Violations:
- Failure to provide proper notice of an organ meeting as required by statute
- Deliberation and voting on matters not included in the published agenda
- Adoption of a resolution in the absence of the requisite quorum
- Participation in voting by a proxy lacking proper authorization
- Allocation to an organ member of multiple votes contrary to the articles of association
A critical qualification obtains with respect to procedural irregularities: such defects furnish grounds for invalidation only where they may have materially affected the resolution’s content. Where, for instance, a beneficiary received inadequate notice of an assembly meeting, yet the resolution would have achieved the same majority irrespective of that beneficiary’s participation, a court may reasonably conclude that the procedural deficiency lacked dispositive significance.
Notably, the assessment of statutory contravention proceeds without regard to the cause of the violation or its relative severity. The determinative inquiry focuses solely upon the existence of the violation and its potential impact on the resolution at issue.
II. Standing to Bring an Invalidity Action
The statute confers standing upon three categories of persons:
The Founder. Standing extends to the natural person who executed the declaration establishing the family foundation. Where the founder has delegated the exercise of certain powers to another person pursuant to the articles of association, that delegate may likewise institute proceedings within the scope of the delegation.
Beneficiaries. Any natural person or non-governmental organization designated as a beneficiary possesses standing, irrespective of whether such beneficiary holds participation rights in the beneficiaries’ assembly. Renunciation of beneficiary status extinguishes this procedural entitlement.
Organ Members. Each individual member of the management board, supervisory board, or beneficiaries’ assembly may bring an invalidity action in their personal capacity. This right inheres in individual members rather than in organs acting collectively. Critically, former organ members forfeit standing upon termination of their mandate—a requirement that must be satisfied throughout the pendency of the proceedings.
III. Temporal Limitations: Preclusive Periods
The legislature has imposed strict temporal constraints upon the invalidity action:
- Six months from the date on which the entitled party obtained actual knowledge of the resolution
- Two years from the date of the resolution’s adoption, as an absolute outer limit
These periods constitute preclusive terms of substantive law (terminy zawite). Their expiration effects a definitive extinction of the right to challenge the resolution. The periods admit of neither tolling nor extension, and courts must recognize their expiration ex officio.
The practical implications warrant careful attention. Even where an entitled party first learns of a resolution eighteen months following its adoption, only six months remain for initiating proceedings—though the two-year absolute period will foreclose any action brought thereafter in any event.
The six-month period commences upon actual examination of the resolution’s content, not merely upon receipt of information regarding its adoption. The burden of demonstrating compliance with the limitations period rests with the plaintiff.
IV. The Nature of the Invalidity Judgment
A. Constitutive Effect
The Supreme Court’s jurisprudence concerning capital companies, which applies by analogy to family foundations, establishes that a judgment declaring a resolution invalid possesses constitutive rather than declaratory effect. Until such judgment becomes final and non-appealable, the challenged resolution remains valid and legally operative.
Upon attaining finality, the judgment renders the resolution void ab initio, with retroactive effect (ex tunc). This temporal dimension necessitates unwinding of any transactions or corporate actions predicated upon the invalidated resolution.
B. Preclusion of Collateral Attack
Of considerable practical significance, once the limitations periods expire, the invalidity of a resolution may no longer be raised by way of defense or collateral attack in other proceedings. The Family Foundation Act contains no analogue to the provisions of the Commercial Companies Code that preserve the availability of such defenses notwithstanding expiration of the period for direct challenge.
V. Exclusion of the General Declaratory Action
The statute expressly precludes recourse to Article 189 of the Code of Civil Procedure—the general provision authorizing actions for declaratory judgment—as a basis for challenging resolutions of family foundation organs. This exclusion forecloses circumvention of the specific standing requirements and limitations periods established by Article 83.
A. The Exception for Non-Existent Resolutions
An exception obtains for so-called “non-existent resolutions” (uchwały nieistniejące)—circumstances involving such fundamental defects that no resolution can be said to have been adopted at all. Illustrative cases include voting conducted by persons lacking organ membership or adoption purportedly occurring in the complete absence of a quorum. In such instances, Article 189 of the Code of Civil Procedure remains available to establish that no valid corporate act occurred.
B. Founder Decisions
Article 189, read in conjunction with Article 58 of the Civil Code, may also provide a basis for challenging decisions taken by the founder personally (such as appointments to foundation organs), inasmuch as the founder does not constitute an organ of the foundation and the founder’s acts therefore fall outside the regime established by Articles 82 and 83 of the Act.
VI. Resolutions Contrary to Principles of Social Coexistence: A Statutory Lacuna
The Family Foundation Act presents a noteworthy divergence from the Commercial Companies Code. In capital companies, a resolution may be rescinded where it contravenes “good commercial practice” (dobre obyczaje). The Family Foundation Act provides no comparable ground—neither in Article 82 (rescission) nor in Article 83 (invalidity).
This lacuna raises a difficult question: What remedy, if any, exists where a resolution, while formally compliant with applicable law, is manifestly inequitable or injurious to legitimate interests?
Certain commentators propose recourse to Article 58(2) of the Civil Code, which provides for the invalidity of juridical acts contrary to principles of social coexistence (zasady współżycia społecznego). Under this approach:
- The resolution would be void ab initio as a matter of law, without need for judicial declaration
- Challenge could proceed via declaratory action under Article 189 of the Code of Civil Procedure
- The six-month and two-year limitations periods of the Family Foundation Act would not apply
This doctrinal solution, however, remains uncertain. No judicial precedent addresses the question in the family foundation context, and the characterization of organ resolutions as juridical acts susceptible to Article 58 analysis is itself contested in the scholarly literature.
The practical consequence is that a resolution that operates with manifest unfairness yet conforms to the letter of the law may prove exceedingly difficult to challenge. This consideration counsels careful attention to the drafting of foundation articles—appropriately tailored provisions may fill this gap, and their breach would open the path to rescission under Article 82.
VII. Effects on Third Parties: Absence of Good Faith Protection
The retroactive effect of an invalidity judgment raises significant concerns regarding transactions undertaken in reliance upon the invalidated resolution.
The Commercial Companies Code contains provisions protecting third parties acting in good faith: even following invalidation of a resolution authorizing a transaction, a counterparty may defend on the ground of ignorance regarding the resolution’s defects.
The Family Foundation Act affords no such protection.
This gap creates material risks for commercial transactions:
- Where the beneficiaries’ assembly adopted a resolution authorizing disposition of real property, and that resolution is subsequently declared invalid, the acquirer may lose title to the asset
- Counterparties transacting with family foundations should exercise heightened diligence in verifying the propriety of resolutions underlying proposed transactions
- Foundation management boards should maintain comprehensive documentation of resolution adoption procedures
In practice, these considerations elevate the importance of thorough due diligence in transactions involving family foundations and may prompt counterparties to require additional security arrangements or representations and warranties.
VIII. Joinder of Parties
Multiple entitled persons may jointly prosecute an invalidity action concerning the same resolution, provided their claims rest upon a common factual and legal foundation, pursuant to Article 72(1)(1) of the Code of Civil Procedure.
Coordinated action may yield practical advantages:
- Allocation of litigation costs and legal fees among multiple plaintiffs
- Strengthened litigation posture through consolidated argumentation
- Avoidance of potentially inconsistent judgments in separate proceedings
Founders, beneficiaries, and organ members may thus coordinate their efforts where all seek to challenge the same resolution on identical grounds.
IX. Practical Guidance for Practitioners
- Preserve evidence of the date knowledge was obtained. Documentation establishing when the entitled party first learned of the resolution will prove essential to demonstrating compliance with the limitations period.
- Act expeditiously. Notwithstanding the six-month period, circumstances may complicate matters as time passes, and proper preparation of the complaint requires adequate time.
- Distinguish carefully between grounds for challenge. Statutory contravention supports an invalidity action under Article 83; contravention of the articles of association or foundation purposes supports rescission under Article 82. Selection of an improper procedural vehicle may result in dismissal.
- Attend to foundation representation. The foundation itself is the proper defendant. Where the management board’s resolution is challenged, the supervisory board represents the foundation; in the absence of a supervisory board, a special proxy appointed by the beneficiaries’ assembly assumes this function.
- Organ members should consider tenure implications. Prospective plaintiffs serving as organ members should bear in mind that termination of their mandate during the pendency of litigation will divest them of standing. Given the pace of judicial proceedings in Polish courts, this risk merits serious consideration.
Conclusion
The invalidity action under Article 83 of the Polish Family Foundation Act provides an essential mechanism for ensuring that foundation organs operate within the bounds of applicable law. The statutory framework, while drawing upon established corporate law principles, exhibits distinctive features—including the absence of good faith protection for third parties and the unavailability of collateral attack following expiration of limitations periods—that warrant careful attention from practitioners. As judicial precedent develops in this nascent area, the contours of these provisions will undoubtedly receive further elaboration. For the present, stakeholders in family foundations are well advised to approach governance matters with scrupulous attention to procedural regularity and to act promptly when grounds for challenge arise.
