In the course of the company's operation of commercial law, it may happen that the vote on the resolution of the body will take place with invalid votes. one the paradox is that the Commercial Companies Code does not explicitly regulate the impact of invalid votes on the validity of the resolution.
No matter what, the voices are like:
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- votes lodged by unauthorised persons, i.e. by persons who are not partners/shareholders or who have been given by proxy holders of partners who have a defective mandate,
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- votes by a partner who could not exercise that right in a given case (e.g. in certain cases under Article 142(4) k.s.h., Article 244 k.s.h., Article 413 k.s.h.),
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- votes made in a different way than when voting under law or contract (statute) of the company, e.g. openly instead of secret (Article 247(2) k.s.h. and Article 420(2) k.s.h.).
It should be indicated that invalid votes cast during the voting of the body of the capital company, i.e.: the meetings of shareholders, the general meeting or the supervisory board or the board of directors are not votes cast within the meaning of Article 4 section 1 point 9 k.s.h.
In accordance with the prescribed provision, votes are "for", "against" or "holding" votes cast in accordance with the law, contract or company statutes. It should be concluded from the above that invalid votes (not cast) should not be taken into account at all when counting votes.
However, the Commercial Companies Code does not explicitly regulate the impact of invalid votes on the validity of the resolution.
In resolving this issue, it seems important to Article 6 section 3 k.s.h. which provides that a resolution of a meeting of shareholders or a general meeting taken in breach of the requirements indicated under Article 6 section 1 k.s.h.
(no implementation of the information obligations specified therein) is valid if it meets the requirement of a majority vote, without taking into account invalid votes.
This provision appears to illustrate the general principle which can be applied to all other cases of voting influence invalidating the validity of the resolution of the body of the capital company.
This principle derives from the essence of a vote invalid as a cast vote, and thus a vote which is not taken into account at all when counting votes.
At this point, it should also be pointed out that, in accordance with the Commercial Companies Code, the absolute majority of the votes shall be determined taking into account the valid votes cast, i.e. the votes "for", "against" or "abstaining" votes cast in accordance with the law, contract or company statutes.
Thus, in the process of counting votes, in principle, all votes cast, i.e. both “for”, “against” and “holding” votes, are counted. In order for the resolution to be adopted by an absolute majority, the votes “in favour” must be more than “against” and “resistent” votes taken together.
It is not, on the other hand, a dedicated voice, a voice made in a faulty way, from a formal point of view, or a voice made by an unauthorised person, or an uncommitted voice at all. Taking part in the vote and giving a valid ‘holding-up’ vote shall result in counting all votes cast, including those votes.
Failure to cast any vote by an accomplice or to vote invalid shall mean that the votes represented by him shall not be counted against the number of votes taken in the vote. The above statement is confirmed in the doctrine that the votes of shareholders excluded from voting by the prohibition of the law, i.e.
who cannot exercise voting rights (e.g. A. Szajkowski, [in:] Sołtysiński, Szajkowski,Swiss, Comment KH, t. I, p. 1234; I. Weiss, [in:] Kruczalak, Commentary (1999), p. 308) shall not be counted as votes cast.
In this case, giving up any vote (even withholding) means that the vote is not validly given and therefore not counted against the number of votes cast. The consequences of this method of calculating the absolute majority of votes are very important.
If the meeting of partners according to the attendance list was attended third partners, where, one was excluded from voting on the basis of Article 244 k.s.h., his votes are not taken into account and the absolute majority counts on the basis of the votes of the other partners.
Therefore, provided that, in addition to the vote on the vote on the part of the invalid votes, all other elements of the vote were lawful and with the company's (statute) agreement, i.e. the resolution was voted by the competent authority, properly convened in due time, by the relevant entity, in good time and on the indicated agenda and during the vote the quorum requirements were met and the majority of the votes required to adopt the resolution (of course, without taking into account the invalid votes) were reached, this resolution will be taken in an important way, despite the fact that some votes were invalidated.
Author: Michał Wasilenko
Lawyer, Senior Associate in the Legal Department, member of the Bar Association in Lublin, graduate of the Faculty of Law and Administration at Maria Curie-Skłodowska University in Lublin. He specializes in commercial and civil law law.