Voting in writing gives the possibility to adopt resolutions where, for various reasons, the presence of shareholders at the registered office of the company or elsewhere in the territory of the Republic of Poland is impossible or significantly impeded.
Alternative to voting at a meeting of shareholders, the way in which resolutions are adopted in a limited liability company is written vote[1]. Its shape regulates Article 227(2) Act dated 15 September 2000 Commercial Companies Code (i.e.
dated 20 July 2017 Journal of Laws of 2017, item 1577) (hereinafter as: k.s.h.), which in the case of a limited liability company gives the possibility to adopt resolutions without having to hold a meeting of shareholders, if all the partners give their written consent to a decision to be taken or to a written vote.
This solution is particularly important as it appears that the resolutions taken outside the meeting of shareholders do not apply Article 234 k.s.h., according to which meetings of shareholders of the limited liability company should be held in the territory of the Republic of Poland[2].
two types of voting
As per content Article 227(2) k.s.h. we can distinguish two Types of written ligo voting: first i.e., consent to the decision to be taken and second so-called written vote of stricto sense[3].
The adoption of resolutions by the shareholders' consent to the decision to be taken may take place on two different ways. A resolution may be taken by correspondence or by submission of a statement by each of the partners on a separate document[4].
In practice, the most common voting procedure is according to first of the above mentioned methods i.e. By signing partners to the future resolution.
It should be stressed that the decision to be voted on under this procedure must be taken unanimously by all shareholders and must have a specific, determined content which cannot be amended or negotiated by voting[5].·.The term "all" means only those partners who are not excluded from voting on the basis of Article 244 k.s.h[6].
Consequently, in order for a vote of consent to a decision to be valid, all partners entitled to vote must accept the content of the provision.
This type of vote is related to two in stages: obtaining the consent of all partners to a written vote on a particular case and voting outside the meeting. Usually in practice, the consent of the partner to a written vote of the stricto sense is included in the same document as the vote given on the resolution.
An important element is that the statement of acceptance of a written vote of stricto is a separate element from the ‘voting the vote’ by the shareholder himself over the resolution. Conversely, first the type of vote indicated under Article 227(2) k.s.h.
consent to a written vote of stricto cannot be identified with voting on a given resolution. At this point, it should also be pointed out that the consent to vote in writing alone must be expressed unanimously by the shareholders and must refer to a particular case subject to the vote (cannot be expressed in blank)[7].
Other than first of the types of written vote indicated under Article 227(2) k.s.h consent to a written vote must also be given by partners who have been excluded from voting on the basis of Article 244 k.s.h.
8 Given the independent nature of the action to consent to the written vote of the stricto sense and the vote on the resolution, in the case of the type of written vote in question there is no requirement of unanimity of the shareholders as to the subject matter of the resolution taken.
Adoption of resolutions Article 227(2) k.s.h. on an analogy to Article 235(1) k.s.h should be carried out by a member of the board of directors of the company, who shall be appointed by that body as the chairman of the meeting of shareholders[9].
This proposal can also be drawn from content Article 248(3) k.s.h., on the basis of which the board of directors of the company shall enter written resolutions in the book. On the other hand, there is doubt as to whether partners have the possibility to vote in writing[10].
Procedure for carrying out written votes
Rules on how to vote in writing are usually included in the articles of association. Usually the person holding the written vote sends a notice to the partners of the planned adoption of the resolution in writing, together with the attached content of the resolution by registered letter, courier mail or electronic mail.
The notification of the written vote should contain information on the time limit for taking a position on the draft resolution or the admissibility of the written vote of the stricto sense and the vote on the resolution[11].
After the expiry of the aforementioned deadline, the person who carried out the vote shall draw up a protocol containing data on the persons voting, the manner in which, the result of the vote, while stating that the resolution has been amended or refused, and shall inform the persons entitled to vote of the abovementioned matters.[12].
Given the nature of the procedure for adopting resolutions in a written vote, particular attention should be paid to the question of the admissibility of the institution in question in the circumstances in question.
In view of the content Article 231(4) k.s.h. it is clear that the written voting procedure is excluded in the case of resolutions taken in the ordinary meeting of shareholders.
In addition, a written vote will be inadmissible if it has been excluded from the company's contract or in accordance with the provisions of the Act, a meeting of shareholders is required (e.g. the conclusion by the company of a loan, credit, guarantee or other similar agreement in cases specified).
Under Article 15(1) and 2 k.s.h., redemption of shares (Article 199(2) k.s.h.), appointment of a proxy to represent the company in matters specified under Article 210(1) k.s.h., approval of the liquidation balance sheet (Article 281(1) k.s.h.), approval of the decommissioning report (Article 288(2) k.s.h.), division of the company (Article 541(1) and (2) k.s.h.), transformation of the company (Article 562(1) (k.s.h.)[13].
The doctrine also assumes that the adoption of resolutions in the procedure Article 227(2) k.s.h. will not apply to resolutions adopted by secret ballot 14 and in the case of resolutions which require notarial acts[15]. The disputed question is whether a single-member company with limited liability can adopt resolutions in writing.
There is no doubt that the written procedure for adopting resolutions is much less time-consuming and formalised than for adopting resolutions at the meeting of shareholders of the company.
The institution will be particularly useful if the partners of the company or representatives of the shareholders are present at a given time or permanently outside Poland. However, by deciding to adopt resolutions in a way Article 227(2) k.s.h.
it is necessary to bear in mind the numerous limitations resulting from the law or which may result from the partnership agreement, which are related to the requirement to adopt a resolution on the case at the time of the meeting of the shareholders of the company.
Author: Hanna Żołnierkiewicz – Legal applicant at the Law Office of RUSSELL BEDFORD Dmowski and Partners sp. k.
Writing:
1 M. Rzeplinka, "Written voting in limited liability company", Yearbooks of Legal Sciences
Tom XXIII, number 1 — 2013, https://www.kul.pl/files/1374/public/rnp_2013/nr_1/RNP_2013_vol23_no1_049-067_Rzeplinska.pdf , p. 51
2 . J. Bieniak, M. Bieiak, G. Nita - Jagielski, K. Oplustil, R. Pabis, A. Rachwal, M. Spyra, G. Suliński, M. Tofel, R. Zawłocki, Commercial Companies Code. Commentary, Warsaw: Legalis 2011; R.L. Kwasnicki, Resolutions of the Shareholders of a limited liability company (cz. 1), PS 2005, No 6, p. 17;
3 M.Rzeplinska op.cit, p.54,
4 Ibidem, p.51 and 54,
5 A. Kidyba, a limited liability company. Commentary, Warsaw 2009, Legalis.
6 Rzeplinka op.cit., p.56
7 R. Pabis, Letters of Commercial Companies. Limited liability company, Vol. III, Warsaw: C.H. Beck 2005, p. 108;
8 M. Rzeplinka, op.cit., p.56
9 Bieniak, Bieniak, Nita - Jagielski and others, Commercial Companies Code..., op.cit
10 M. Rzeplinka, op.cit., p.54
11 Ibidem, p.54
12 Ibidem, p.54
13 Ibidem, p.54,
14 Pabis, op. cit. p. 386
15 Bieniak, Bieniak, Nita - Jagielski and others, Commercial Companies Code, op.cit