Split voting involves voting by one shareholder differently from the shares held by him (i.e. part of the ‘for’ share and part of the ‘against’ share of the same resolution of the general meeting). The right to vote both in the public limited company and in the company with the o.o. is one with more important corporate powers.
It allows to co-decision in the forum of the company's assembly on its key issues. The question arises as to whether, like a shareholder of a joint stock company, a shareholder of a limited liability company is entitled to vote differently from some of its shares?
Historical drawing
Over the years, the Polish legal system had the principle of uniformity of voting by one shareholder. According to it, the shareholder could not, in principle, vote in favour of one share and the other against the same resolution.
However, this principle was deduced from the logical-psychological aspect of the vote itself, rather than from the Codex itself. The shareholders simply did not think to vote out of their shares unevenly.
The Commercial Code and the Commercial Companies Code have never explicitly ruled out the possibility of disunity in exercising voting rights.
This principle proved to be incompatible with the needs of economic trade over time. The stock increasingly served purposes other than just voting. They often became the subject of collateral (the pledge was made on them, they were repossessed as collateral).
The issue of security in shares was particularly important when it concerned only part of the shares. There were many doubts: could the pledges (shareholders) exercise voting rights from each of the holdings secured for their benefit? Can each of these pledges vote differently?
Finally, can the shareholder itself vote differently from the pledges on the holding? The opinions of doctrine in this regard were divided.
Split voting in a public limited company
Since the entry into force of the amendments to the Commercial Companies Code of 5 December 2008 the answer to these questions is no longer doubtful: the shareholder can vote differently from each of the shares held (Article 411 3 KSH).
The Commercial Companies Code, although still does not regulate the situations entitled to exercise the voting rights of pledges, it is widely accepted that the rules on exercising the voting rights are the same for all eligible.
The hostage or the share user can therefore exercise voting rights differently from each share held, regardless of the title of holding. The changes introduced ended the dispute in the doctrine of split voting in a joint stock company.
The amendment has often sanctioned the practice of non-uniform voting by one shareholder of the shares held by him.
In the margins, it should be added that then added to the Commercial Companies Code Article 411 3 , it is mandatory and cannot be effectively excluded or restricted in the statutes of the company or in the general meeting.
Split voting in a Polish limited liability company.
Unfortunately, it is vain to look in the Code of Commercial Companies, in the section concerning the company with the o.o., equivalent Article 411 3 KSH. Codex regulation contains no provisions concerning the possibility of a different (non-uniform) vote from the individual shares of the company's shareholder. Amendment by day 5 December 2008 it has not introduced a similar amendment to the provisions concerning the limited liability company, resulting in a number of disputes in this area.
That's right. Article 242(1) KSH provides that, unless otherwise provided by the articles of association, each share of equal value gives one the vote at the meeting of partners, but this does not result in the settlement of the issue of split voting in the company of o.o.
Part of the Polish doctrine states that one the shareholder may exercise voting rights from its shares only in a uniform manner. A different view, allowing the unequal exercise of voting rights from the shareholders' shares, also has a number of supporters.
Arguments for the admissibility of split voting in the company z o.o.
Revision of the day 5 December 2008 implemented Directive 2007/36 to 11 July 2007 on the exercise of certain rights of shareholders of listed companies (Official Journal of the European Union L, No. 184 to 14 July 2007, p. 17). Proponents of the possibility of split voting in the company z o.o.
argue that there is no reason to apply other rules to the exercise of rights from the shares of the company z o.o. Both companies are capital companies and have many common characteristics.
Among the regulations concerning the limited liability company, there is also no prohibition on voting in different ways from shares held by one partner.
Arguments for the admissibility of split voting in the company z o.o.
can also be found in the justification for the amendment of the day 5 December 2008 First of all, it points to the inadmissibility of the argument (as raised by opponents of the admissibility of split voting in a public limited company) that since the voting right is exercised by a shareholder (so the share "does not vote" itself), the shareholder can only vote in a uniform manner.
It has been stressed that the opposite concept remains in flagrant contradiction with the requirements of modern trading and the principle of the will autonomy of a person governed by private law.
The legislator also pointed out in the explanatory memorandum that since a shareholder may not exercise voting rights at all or exercise them solely from part of the shares held, there is no reason to prohibit voting in a non-uniform manner.
Although the justification concerned in fact the shares in the public limited company, they can also be applied to the shares in the company.
Arguments against the admissibility of split voting in the company z o.o.
The basic argument against the admissibility of voting one a different partner from the part of his own shares is a lack of an adequate legal basis. This is due to the prohibition (in principle) of analogy with the provisions of another type of capital company.
Both capital companies were regulated in a separate manner, different from that of private companies (Article 89 KSH, Article 103 KSH, Article 126(1)(1) KSH). According to the opponents of the admissibility of split voting in the company z o.o., the lack in the current code regulation in the section devoted to the company z o.o.
of a provision correspondence with Article 4113ksh means that such a vote is impossible.
Practical relevance
A fragmented vote can only seem irrational or untargeted.
On first the plan in this respect is drawn up Article 250(2) KSH, which states that the right to bring an action for the repeal of the resolution of shareholders is the right of a partner who has voted against the resolution and, after its adoption, has demanded that the opposition be recorded.
Therefore, a partner who, at the time of the vote, has doubts as to whether the resolution adopted is intended to harm him, could vote by a majority “in favour” of the resolution, and one with a "against" vote. Such action would entitle him to challenge the resolution in the future.
Summary
In response to the question set out in the title of this Article, I am in favour of the right of a position according to which the partner of the limited partnership is entitled to vote differently from the shares held by him.
Although it is impossible to find a legal basis for the use of split voting in the company z o.o., such a basis is not required by law. The provisions do not prohibit the shareholder from giving part of the votes in favour and parts of the vote against the same resolution.
There is only an order to act in a way that is consistent with the rules, customs and principles of social intercourse.
If, therefore, a shareholder's giving a part of the vote "in favour" and a part of the vote "against" a given resolution would be contrary to the law or good manners or principles of social intercourse, it should be indicated to what extent it would be incompatible.
What is the most convincing right to vote, however, is the right to participate, not to a partner. This is demonstrated, for example, by regulation Article 187(2) KSH, which provides for the possibility in the contract of the company to exercise voting rights from the participation of a pledgee or the user of the participation.
The subject of the lien may be both the whole of the shareholders’ shares and part of them. In the second the case may therefore arise where a pledge exercising the right to vote from a share of the shareholder's shares votes differently than a shareholder exercising the right to vote from an unencumbered share.
For practical reasons, however, it is appropriate to postulate de lege ferenda that the legislator amends the division concerning the company of the o.o. by adding a provision corresponding to the Article 411 3 KSH.