Consequences of the Social Insurance Institution transferring liability only onto certain members of the company’s management board

As a result of a cassation appeal filed by the Law Firm, in a case involving a former member of the management board of a limited liability company and his liability for the company’s failure to pay contributions to the Social Insurance Institution (ZUS), the Supreme Court pointed to the following significant issues.

The Social Insurance Institution is obliged to institute proceedings concerning third-party liability against all persons who may bear it due to the period in which they performed the duties of a management board member. By the same token, the Social Insurance Institution’s decision concluding these proceedings should rule on the liability of all members of the management board who performed this function during the period in which the company did not pay its liabilities to the ZUS. The Supreme Court emphasised that if proceedings were initiated and a decision issued only against certain members of the management board, it would result in the omitted persons not being liable. Such a situation is not only contrary to the law, but also disadvantageous for those members of the management board to whom liability is transferred. In the situation where the obligation has been discharged, they do not have the right to demand its return in the relevant part from those members of the management board who were omitted in the proceedings before the ZUS.

In practice, this means that members of the management board against whom the pension authority conducts proceedings concerning the transfer of liability should pay particular attention to whether the proceedings cover all persons who may bear liability on this account.

The case was conducted on behalf of the Law Firm by attorney Krzysztof Topolewski.