In a recent resolution, the Supreme Court advocated that the finding on the basis of Article 189 k.p.c., that a resolution was adopted at the general meeting of shareholders of the public limited liability company if the minutes of the general meeting stated that the resolution was not adopted.
As a general rule, entities wishing to establish the existence or non-existence of certain legal or legal relations, in order to pursue such a claim, often bring to court a lawsuit under the procedure Article 189 k.p.c. According to that provision, the plaintiff may demand that the court establish the existence or non-existence of a legal relationship or law where he has a legal interest in this.
At the same time, legislation Articles 422(1) and 425(1) k.s.h. allows certain persons or bodies of the public limited liability company to bring an action against the company, successively, to revoke a resolution of the general meeting contrary to the statutes or good manners and acceptable to the interests of the company or to harm the shareholder and to annul a resolution of the general meeting contrary to the law.
On the board of cases for annulment of resolutions of the general meeting of a public limited company and for determination of existence four the resolutions of the same company, on which the minutes of that assembly stated that they had not been taken, and on which the votes of shares which were prohibited were taken into account when determining the voting results under Article 89(1)(1) with regard to Article 89(3) Act dated 29 July 2005 on the public offering and conditions for introducing financial instruments to organised trading and on public companies (i.e.
the prohibition of exercising voting rights due to non-execution of the obligation to notify the achievement or exceed certain thresholds in the total number of votes in a public company, The Court of First Instance noted that it was not clear how shareholders could prevent the adoption of resolutions by the general meeting if the adoption of resolutions was blocked by shareholders voting against them, although their votes should not be taken into account when calculating the results of the vote.
At the same time, the court referred to the question of so-called negative resolutions as the most similar to the presented issue.
Day 20 January 2022 (III CZP 17/22) The Supreme Court, to which the legal question of ‘Is it permissible to determine on the basis of Article 189 The NPC, by court judgment, that a certain resolution was adopted at the general meeting of shareholders of a public limited company, when the minutes of the general meeting stated that the resolution had not been adopted?’, adopted a resolution that: ‘It is not acceptable to establish on the basis of Article 189 KPC that a resolution was adopted at the general meeting of shareholders of the public limited company if the minutes of the general meeting stated that the resolution was not adopted.’
In the statement of reasons for this resolution, the Supreme Court cited the view that it was permissible in such a situation to bring an action to establish that voting rights were excluded from shares, as well as a reasonable examination of this circumstance in the case of annulment of the resolution (Article 425 k.s.h.) or the repeal of the resolution (Article 422 k.s.h.), however, this possibility applies to the resolution which has been adopted.
The Supreme Court, citing further rulings previously issued by the Supreme Court, recalled that the Commercial Companies Code introduced a special, autonomous and exhaustive a system of contesting resolutions, including two types of actions (revocation of the resolution and annulment of the resolution).
These rulings indicated that a negative resolution can be referred to when the draft resolution put to the vote does not obtain the required majority and the resolution is not adopted.
Reminder three the effects which, according to the doctrine, such a resolution can have: (1) the resolution is not adopted and the current legal situation is therefore unchanged; (2) there is a resolution on the contrary to the content of the project; (3) there is a case of non-existent resolution.
In its previous ruling, the Supreme Court generally agreed to second the position, arguing that the Code of Commercial Companies uses the concept of a resolution, that is, as a rule, the act constituting the result of a positive vote, and the lack of a statutory definition of the term "advertisement" or "negative notice" does not exclude the legal structure of the negative resolution, that they do not argue against such a structure also the principle of the recording of resolutions (i.e.
to record also the votes "against", which in fact constitute votes for the negative resolution), to confirm this thesis also pointing to Article 4(1)(9) k.s.h, according to which the votes cast are votes cast "for", "against" or "holding".
In adopting the resolution, however, the Supreme Court did not share views that identify the concept of a negative resolution with a resolution that did not obtain the required majority in the vote.
The SN stressed that such a resolution does not exist and therefore is not subject to any regime which could lead to its repeal, annulment or finding that a resolution on the opposite substance was adopted, indicating that it could only be requested to vote again after the vote has been eliminated contrary to the prohibition provided for under Article 89 Public Offering Act [...].
According to the position of the SN expressed in the resolution under discussion, the negative resolution can be defined only by such a resolution in which shareholders, by a majority of the votes, expressed a declaration of will accepting the project containing the negative content.
If such a resolution is adopted, it is possible to challenge it on the basis of Article 422(425) k.s.h., and it is not possible to establish that a resolution on the opposite content has been adopted on the basis of Article 189 k.p.c.
If, in turn, the majority of the votes cast against the adoption of the resolution, this means that the resolution has not been adopted, it does not exist and cannot be challenged.
On the other hand, the Supreme Court, in addition to the assessment that such a resolution does not exist, argued that the mere consideration of the action and the finding that the resolution has been adopted, has no legal effect if, at the same time, the court does not establish the content of such a resolution.
Moreover, the provisions of the Commercial Companies Code concerning the appeal of resolutions have been designed in such a way as to ensure the stability of the functioning of the company, as evidenced by the subjective and temporary limitation of the possibility of challenging resolutions, and the granting of force binding on resolutions contrary to the Act until they are eliminated from trading.
Allowing an action to determine the situation in question would mean denying this objective, since with a request based on Article 189 other entities may also be present, as well as at a different time (a much longer time) than is due to Article 422(425) k.s.h.
SN did not agree with the position that the exclusion of the possibility of taking into account the action to establish a settlement in the interests of minority shareholders, indicating that there were other solutions which, before or during the general meeting, allow the enforcement of the prohibition from Article 89(1)(2)) Public Offering Act [...], i.e.
shareholders may order the court to establish that majority shareholders are not entitled to exercise voting rights from shares, the chairman of the general meeting may prohibit, either on his own initiative or at the shareholder's request, the calculation of the votes of those shareholders affected by the prohibition, and, moreover, minority shareholders may apply for a possible compensation claim, both against shareholders who infringe the prohibition and against the chairman, members of the board of directors and the company.
Author: Oliwia Wójcik, Legal advisor. Russell Bedford Dmowski and Associates Law Firm S.K.A.