Criminal mismanagement involves causing property damage to a company of at least PLN 200,000 through the abuse of powers or a failure to fulfil duties. Only individuals who, by virtue of their powers, „manage the property affairs of the company or its business activity” are liable for this offence (Article 296 of the Criminal Code). Depending on the amount of damage and whether it was committed intentionally or unintentionally, the perpetrator can face up to 10 years in prison.

Court rulings have usually stated that the person responsible for mismanagement is one who independently makes decisions on behalf of the company. Typically, these are members of the management boards and proxies. Depending on the circumstances of the case, responsibility could also apply to authorised representatives or senior management. However, in a ruling issued on 3 July 2019 (V KK 256/18), the Supreme Court emphasised that decision-making independence must be assessed from the perspective of the company’s organisational structure. Often, the final decision leading to damage to the company is the result of many partial actions and decisions made by individuals in lower positions. In practice, these partial decisions are not later verified and form the basis for concluding contracts, investments, or other business actions.

According to the Supreme Court, managerial independence is determined not only by whether the person makes a decision „externally”, but also by whether they verify the basis for the decision before making it. The court stated:

Sometimes decision-making independence will be associated with duties that, when analysed independently of the aforementioned organisational structure, may appear as merely preparatory actions for a formal decision. This occurs in organizational structures where, due to legal or factual conditions, the entity formally authorised to make financial decisions does not independently shape or control their content.

The Supreme Court’s ruling is of great significance for the proper delineation of duties for individuals at various levels of the organisational structure. This ruling should also serve as an impetus for every organisation to review its structure and decision-making processes.