If the parties so agree, one of them represents the other as an agent to the agreed extent. The principal shall state the scope of the representative authority in the power of attorney. Contractual representation is therefore always created on the basis of an agreement between two parties - the represented and the agent (principal and agent). The power of attorney is then an external manifestation of the existence of this agreement between them, which is intended to prove that the person acting for another is acting on the basis of his will.

In practice, we may encounter requests from state authorities, courts, or other entities to document that the power of attorney granted was actually accepted by the agent. This is certainly fine in a situation where the power of attorney is presented to a third party by the principal and this third person therefore does not know whether the principal also agrees to the granting of the power of attorney (that is, to the fact that he will handle some matter for the principal). However, problematic or slightly laughable situations may trigger a request for a written form of this acceptance addressed to the authorized representative. For example, a situation where a lawyer comes to the court with a power of attorney signed (only) by the client and is instructed by the court that the submitted power of attorney is imperfect without the signature of the lawyer accepting the power of attorney (which, upon the request of the court, the lawyer instantly heals with his signature on the spot), is a laughable case . It is not very likely that the judge would encounter a case where the lawyer who appeared at the meeting presents him with the power of attorney granted to him, stating that he does not accept the power of attorney and will not represent the principal in the proceedings.

The question is whether the request for written acceptance of the power of attorney is justified. In the provisions of § 441 of Act No. 89/2012 Coll., Civil Code, as amended (hereinafter referred to as Civil Code), it is expressly stated that "the principal shall state the extent of the representative authority in the power of attorney". In the same way, from the provisions of § 28 of Act No. 99/1963 Coll., Code of Civil Procedure, as amended (hereinafter referred to as the Code), for the purposes of civil court proceedings only the obligation of the principal to grant the representative a procedural written power of attorney, or to grant it orally to the protocol. None of these regulations therefore result from the obligation of the agent to confirm the acceptance of the power of attorney in writing.

There is a fundamental difference between legal actions - a power of attorney and an agency agreement (regardless of its actual name in a specific case) - which consists in the fact that a power of attorney, as a unilateral legal action, is only evidence of the existence of an agency agreement and is addressed to to third parties. The requirement of a written confirmation of the acceptance of the power of attorney, when it is understood as a specific unilateral legal act serving the authorized person to act towards third parties[1] proved that he is really authorized to act on behalf of the principal (that is, that the principal actually authorized him), so it is not very logical. Nevertheless, the Constitutional Court agreed with this request in its decision of 15 December 12, issued under file no. stamp I. ÚS 2009/2706, by which he rejected the constitutional complaint due to formal filing defects - "no power of attorney was submitted, from which it would be evident that JUDr. The RA actually took over the legal representation of the complainant."[2] According to the Constitutional Court, the granting of a power of attorney to the court must always be proven. "This can be done, among other things, by a document containing a statement by the participant, by which he authorizes the agent to represent him in the proceedings before the court (see § 28, paragraph 1 of the Civil Procedure Code). From a procedural legal point of view, a written power of attorney is thus a certificate of the existence of the right of a certain person to represent another person. When assessing whether a written power of attorney has the necessary details, it is therefore necessary to take into account whether it reliably demonstrates not only the will of the party to the proceedings to be represented in the proceedings by a designated representative, but also the will of the representative himself to assume this obligation and act for the represented party to the proceedings. Therefore, it must also be clear from the content of the written power of attorney that the authorized representative has accepted the power of attorney."[3] The objection that the granting of power of attorney is a unilateral act was not taken into account by the Constitutional Court. The opinion of the legal representative of the complainant, that the acceptance of the power of attorney clearly follows only from the fact that the authorized representative has performed certain actions in a specific procedure for the principal (e.g. the very filing of a constitutional complaint, within the framework of which the authorized representative is submitted).

If we go back to the beginning of this treatise, in addition to slightly funny situations, we can also mention problematic ones. One of them can be, for example, a situation where the proxy appears at the meeting of the company's general meeting and submits a power of attorney, the content of which implies the right of the proxy to participate on behalf of the principal in this particular general meeting and to exercise the rights of a partner or shareholder at it. Given that the articles of association or the articles of association of the company stipulate in a specific case the condition of official verification of the signature on a power of attorney, adding the acceptance signature of the proxy to the persons checking the participation in the general meeting may not be enough. The proxy can thus be informed that he will not be allowed to participate in the general meeting, because the power of attorney does not have his verified signature proving acceptance of the power of attorney. If at the same time a person authorized to verify the signature of such a representative is not present at the general meeting, complications arise.

They dealt with the problem of whether written acceptance of a power of attorney is necessary JUDr. Martin Nedelka, Ph.D. and Mgr. Pavel Říha in 2005, i.e. before the cited resolution of the Constitutional Court was issued. It is clear that this is a problem that has occurred in practice and continues to occur. They state the following: “The power of attorney to represent in civil court proceedings is therefore a unilateral legal act of the principal. It is also not a legal act of an agent. … Therefore, it is not obvious and rationally justified why judicial practice requires that a power of attorney for representation in a civil court proceeding be accompanied by a special declaration of the attorney accepting the power of attorney. A clearly unilateral legal act thus becomes a quasi-bilateral act in practice."[4] Furthermore, the authors of the article mention the interpretation of the provisions of Section 28 of the Civil Code. in the 2003 Code of Civil Procedure Commentary[5], who states that it must also be clear from the document that the agent has accepted the power of attorney, but does not elaborate further on this opinion. In the commentary on the same provision by the same authors from 2009, we can already find another consideration: "if it is possible without doubt to derive such authorization (a representative to act on behalf of the participant) from the content of the written electronic power of attorney or the oral statement of the participant, or from the circumstances, for for which the power of attorney was delivered to the court or for which an oral statement was made, any defects in the content of the power of attorney or the participant's oral statement on the granting of power of attorney for the proceedings are irrelevant."[6] Therefore, the authors are inclined to the opinion that if it is clear from the circumstances that the agent has accepted the power of attorney, it is not necessary to submit an explicit acceptance of the power of attorney. In the same vein, he makes another comment: "A power of attorney does not require a requirement to accept it. The fact that the agent intends to act according to the power of attorney results from his actions in the proceedings, primarily from the fact that he himself presents such a power of attorney in the court proceedings in order to prove his representative authority before it" [7]

Resolution of the Constitutional Court issued under sp. stamp I. ÚS 2706/09 was not completely accepted by the professional public, and despite its clear meaning, a rather opposite opinion is advocated in legal practice, that a power of attorney as proof of the existence of an agreement on representation and at the same time (only) unilateral legal action does not require written acceptance for its completeness proxy. However, as can be seen in some court hearings, event at general meetings, the agent cannot rely with a calm heart on the fact that the person to whom he will be presenting his power of attorney shares this expanded view of the matter, or that he will be convinced on the basis of it.

Source: EPRAO digital May 2016

The team of the Vych & Partners, s.r.o. law office

[1] Bílková et al., Civil Code I. General Part (§ 1-654), 1st edition, CH Beck publishing house, Prague 2014, p. 1666
[2] Although even in Act No. 182/1993 Coll., on the Constitutional Court, the requirement of written acceptance of a power of attorney for representation before the Constitutional Court is not enshrined.
[3] Resolution of the Constitutional Court of the Czech Republic dated 15 December 12, file no. stamp I. ÚS 2009/2706. Beck-online [online] C. H. Beck Publishing House, © 09 [cit. 2016/21/4]. Available from: https://www.beck-online.cz/bo/document-view.seam?documentId=njptembqhfpxm2016lcmvzf6ltl65ztanjy&groupIndex=4&rowIndex=0
[4] Nedelka, M., Říha, P., Declaration of the proxy on acceptance of power of attorney - its mandatory requirement? Legal perspectives. 2005, No. 4/2005, p. 139
[5] the mentioned commentary is from the authors Bureš, J., Drápal, L. et al., Civil Code. Comment. Part I. 6th edition. Prague. CH Beck. 2003
[6] Bureš, J., Drápal, L. et al., Civil Procedure Code I. Commentary. § 1-200za. 1st edition. CH Beck Publishing House. Prague 2009. p. 175
[7] White. M. et al., Civil Procedure Code. 1st edition. CH Beck Publishing House. Prague 2013. p. 109