Amendment of the limited liability company agreement which has not been notified to the registry court within the time limit six months after the date of its implementation, it has no legal effect (Article 256(3) ori dic Article 169(1) k.s.h.) – the Supreme Court ruled in the resolution of the day 29 April 2022 (Act No: III CZP 75/22 , previously under the signature III CZP 70/21).
This thesis of the judges of the Civil Chamber of the Court was answered in response to the question of the District Court in Kielce: Whether the proper application of the Code of Commercial Companies to the registration court will result in the ineffective application of any amendment to the articles of association irrespective of its subject matter if it is not notified to the registration court within the time limit 6 months from the start?
This question was based on the facts in which the Extraordinary Assembly of Partners took place in March 2018 a resolution on the amendment of the company's agreement on the change of the company's company, its registered office, the manner of representation, the subject matter of business and the adoption of a uniform text of the company's contract. In November 2020 The board of directors of the company has requested the National Court Register to enter an amendment.
The referee refused to register, claiming that it applies Article 256(3) ksh, i.e. a notification of a change in the name of the company may not take place later than after six months after this shift.
The applicant made a complaint against this provision, in which it claimed that not every amendment to the company's contract would result in a failure to register. In this case, according to the applicant company, it applies Article 169(1) ksh in fine.
That provision provides that if a decision of a court refusing registration has become final, the articles of association shall be terminated. This, according to the company, means that the effect of the failure to comply with the deadline corresponds to the relationship between the company's establishment.
The District Court noted that linguistic interpretation Article 169 ori dic Article 256 section 3 k.s.h. leads to the conclusion that the notification of the amendment of the company's contract to the registration court cannot take place after the expiry of the six months from the date of the adoption of the resolution, and this notification made after the end of half a year results in the need to dismiss the application.
Eventually by resolution of the Supreme Court with 29 April 2022 Composition 3 Judges found that: Amendment of the limited liability company contract which was not notified to the registration court within the time limit six months after the date of its implementation, it has no legal effect (Article 256 section 3 ori dic Article 169 section 1 k.s.h.).
Consequently, the amendment of the agreement, which was not notified to the National Court Register by the management board of the company during the 6 the months following the date of its implementation have no legal effect.
Author: Magdalena Mączka Legal Advisor, Russell Bedford Dmowski and Associates Law Firm Sp. k.