In accordance with the decision of the Supreme Court of 10 December 2024 (III PSK 125/24), Article 52 § 1 of the 1982 Act – Cooperative Law is not a separate provision within the meaning of Article 68 § 1 of the Labour Code. This means that members of the cooperative’s management board cannot be (never are) employed on the basis of appointment.
In this case, the Court recalled the resolution of seven judges of 21 February 2003, III PZP 19/02, OSNP 2003. In the provisions of the Cooperative Law, it is also difficult to find an authorization to specify in the statute of a cooperative the positions on which it is possible to employ on the basis of appointment. The provision of Article 5 § 1 point 7 of the Act states that the statute should specify the rules and procedure for electing and dismissing members of cooperative bodies, but this regulation should be referred to the intra-cooperative procedure for constituting these bodies, and not to establishing employment relationships with these members (a member of a cooperative body may perform his functions regardless of employment). Reference to Article 68 of the Labour Code and Article 52 § 1 of the Cooperative Law should therefore be understood in such a way that the legislator – regardless of the current wording of Article 68 of the Labour Code – in a way „relys” entirely on the solutions adopted in the labour legislation. Therefore, if the current wording of Article 68 of the Labour Code does not list cases (positions) in which the employment relationship is established on the basis of appointment, and the legislator in this provision apparently did not want to specify such cases and referred in this respect to separate provisions – in which, as can be seen from the review, such positions are listed, and at the same time they are not listed in the Cooperative Law – then it should be considered that the provision of Article 52 § 1 of the Law is not a separate provision within the meaning of Article 68 § 1 of the Labour Code.