SKOK’s trustee will not be able to claim twice the value of the share to cover losses
On 12 December 2019 The Supreme Court, in the case ref. no. III CZP 42/19, adopted a resolution in which it indicated that the trustee of a cooperative savings and loan fund (SKOK) is not entitled to claim from the members of the fund to cover the balance sheet loss of the fund on the basis of the provisions of the articles of association introducing increased liability of the members for losses occurring in the fund up to the double amount of the shares paid, if, prior to the declaration of bankruptcy of the fund, the general meeting did not adopt a resolution to cover the loss in this way.
Justifying the issued resolution, the Supreme Court indicated that the trustee does not have the right to replace the decision of the resolution of the general meeting, which has the exclusive competence to adopt resolutions on covering losses. At the same time, it was pointed out that encumbering SKOK members is permissible, but only in the course of SKOK’s business, and not after the declaration of bankruptcy.
Moreover, in the opinion of the Supreme Court, the residual regulation contained in the Act on SKOKs cannot constitute a basis for taking actions contrary to the constitutional principle of citizens’ trust in the law.