In the case-law of the Supreme Court for years, the question has been raised as to whether the side intervention of a shareholder or a shareholder on the part of the defendant in the case of another shareholder or shareholder’s action to set aside or to annul the resolution of shareholders or the resolution of the general meeting is an emergency intervention or a self-intervention.
The position of this kind of side-by-side intervention is predominate, while the view of the intrinsic nature of this intervention remains in a minority. In this context, the Supreme Court’s decision is extremely interesting dated 5 February 2018 on reference no. II CZ 84/17, which prima facie seems to contradict the dominant view of a judicatura of the impersonal nature of side intervention in such cases.
Finally, the Supreme Court concluded that, in a dispute over the annulment or annulment of the resolutions, a shareholder acting as an intervener on the part of the defendant may challenge the judgment, but only to the extent that the company could exercise that power.
Here it should be stressed that decisions of the Supreme Court are binding only if the appeal court asks a legal question on a question of doubt. Then the legal view expressed in the resolution of the Supreme Court binds the court in this particular case.
Other decisions of the Supreme Court are not formally binding on the lower courts, and this is the case in question.
Nevertheless, the wording of the provision should be of interest to the shareholders of the capital companies, as well as to the members of the cooperatives, as it provides relevant guidance on how to interpret the provisions on side intervention.
This case
We are interested in the following circumstances. one from the shareholders of the limited liability company brought to the District Court an action for annulment of the resolutions of the assembly of shareholders of that company.
The company recognized the action and the District Court annulled some of the resolutions, dismissing the action in the remaining scope. In that case, another associate, acting as a side-intervention on the part of the defendant company, challenged the judgment of the District Court in its entirety.
At the appeal hearing, the company’s representative stated that he did not support the intervener’s position, since it was contrary to the position of the company which accepted the action.
The appeal court rejected the appeal stating that, in the light of the jurisprudence of the Supreme Court, the side intervention of a partner on the part of the defendant in the case of annulment of the resolution of the assembly of shareholders is an emergency intervention.
Therefore, the proceedings of the intervener acting on the part of the defendant must not conflict with the activities and statements of that company (Article 79 k.p.c.).
Further, the Court of Appeal pointed out that the mere appeal against the judgment was manifestly contrary to the position of the company, which not only acknowledged the action and did not bring an appeal against the judgment, but asked directly to reject the intervener's appeal.
Therefore, the appeal of the intervener by the court of the second instance was deemed inadmissible.
A side intervener brought a complaint against the appeal court's decision to reject the appeal. In this way, the case was brought before the Supreme Court.
SN provisions
The Supreme Court took a position different from that expressed by the Court of Appeal.
In the present case, he argued that the intervention was of a spontaneous nature, regardless of whether it was submitted on the plaintiff’s side (another shareholder or shareholder, body of the company or its member with the action) or on the defendant’s side, i.e. on the company's side.
He stressed that autonomy requires the application of the rules on co-participation, according to Article 81 k.p.c.
‘if, by the substance of the disputed legal relationship or provision of the law, it follows that the judgment in the case is to have a direct legal effect in relation to the intervener and the opponent of the party to which the intervener acceded, the rules on joint participation shall apply mutatis mutandis to the intervener’s position in the process.
It can therefore be concluded that the actions taken by the intervener are independent of the defendant’s will to which the intervener has joined. He can therefore appeal the judgment of the court first Even against the defendant's will.
At the same time, the Supreme Court pointed out that the admissibility of the appeal made by an intervener had to be considered for the purposes of harming the contested judgment.
Therefore, in the present case, the legal interest (gravamen) in challenging the judgment was assessed by the Supreme Court from the point of view of the party after which the bystanding intervener was acting. Since, therefore, only part of the action was taken i.e.
only some of the shareholders' resolutions were declared invalid, this judgment was detrimental to the company only in part and only in this part of the judgment could be contested by it. In the dismissive part of the action, the defendant's appeal would be inadmissible and would be rejected.
Thus, the appeal of the bystander was admissible only in so far as the action was taken and the court annulled the shareholders' resolutions.
Finally, the Supreme Court concluded that, in a dispute over the annulment or annulment of the resolutions, a shareholder acting as an intervener on the part of the defendant may challenge the judgment, but only to the extent that the company could exercise that power.
Author:
Justyna Kyć
Legal adviser in the Legal Department
From 2017 associated with Russell Bedford Poland. He specializes in corporate customer service, in particular in drawing up and negotiating commercial contracts and providing ongoing legal advice.
Her experience includes the service of Clients from many industries, including public sector entities. He also has extensive experience in conducting disputes and representing clients before general and administrative courts.
At the Chancellery Russell Bedford It deals primarily with civil and economic law matters and comprehensive M&A transaction handling.
She is a graduate of the Faculty of Law and Administration at the University of Silesia in Katowice and of the Interdepartmental European Studies at the College of Europe/C olège d'Europe in Bruges (Natolin Campus). She also completed postgraduate studies in public procurement conducted by the Warsaw School of Economics. From 2015 Member of the District Chamber of Legal Advisors in Katowice.