Pursuant to Article 250(2) of the Commercial
Companies Code: The right to bring an action for
repealing a resolution of shareholders is vested in a
shareholder who voted against the resolution and
upon adoption thereof requested that the record
reflect his or her objection. While the substance of
the provision seems clear and straightforward,
doubts arise when the shareholder ceases to be a
shareholder under the resolution adopted. Is the right
to bring an action for repealing a resolution still
vested in the shareholder under these specific
circumstances?
The issue generated much controversy. It would
seem that the situation is fully regulated and, based
on the plain language of the provision, an entity
ceasing to be a shareholder not longer has the right
to challenge such resolution under the above
procedure.
Helpful in this situation, contradicting the plain
language of the provision, are rulings of the Supreme
Court. And so, in its judgement of 23 February 2011,
case file no. V CSK 257/10, the Court held that for
the right of action for repealing the resolution to
exist, it is sufficient to make the objection and have
it reflected in the record prior to the adjournment of the meeting of shareholders. What follows from that
is that a former shareholder, who ceased to be a
shareholder under the resolution adopted to which it
had objected and requested the record to reflect the
objection, has a right of action to protect his or her
corporate and property rights. Consequently, this
does not relate, as the Commercial Companies Code
seems to suggest, to the incumbency as a
shareholder.
A similar rule applies to bringing an action for
declaring a resolution invalid, regulated under
Article 252 of the Commercial Companies Code. As
indicated by a judgement of the Supreme Court of 15
October 2009, case file no. I CSK 94/09, in such
circumstances a former shareholder is always
required to demonstrate a legal interest.
Summing up, the situation presented above is an
example of when the substance of legislation (here
the Commercial Companies Code) produces
conclusions contrary to the practical application of
the law. The Supreme Court is most helpful here. If
it were not for the Supreme Court’s rulings
providing an unequivocal solution to the problem,
the issue would continue to present numerous
difficulties. It needs pointing out that the Supreme
Court’s case-law supports the situation of an entity
which ceases to be a shareholder under the
resolution. Based on that, providing the shareholder
takes the required measures (requests that the
objection to the resolution under which it ceases to
be a shareholder be reflected in the record), he or she
may effectively pursue protection of his or her rights.
Such a solution, that affords a former shareholder the
opportunity to protect his or her rights, must be seen
as desirable and reasonable.
MILLER, CANFIELD,
W. BABICKI, A. CHEŁCHOWSKI I WSPÓLNICY SP.K.
ul. Batorego 28-32
81-366 Gdynia
Tel. +48 58 782-0050
Fax +48 58 782-0060
gdynia@pl.millercanfield.com
ul. Nowogrodzka 11
00-513 Warszawa
Tel. +48 22 447-4300
Fax +48 22 447-4301
warszawa@pl.millercanfield.com
ul. Skarbowców 23a
53-125 Wrocław
Tel. +48 71 780-3100
Fax +48 71 780-3101
wroclaw@pl.millercanfield.com
Disclaimer: This publication has been prepared for clients and professional associates of Miller Canfield. It is intended to provide only a summary
of certain recent legal developments of selected areas of law. For this reason the information contained in this publication should not form the
basis of any decision as to a particular course of action; nor should it be relied on as legal advice or regarded as a substitute for detailed advice in
individual cases. The services of a competent professional adviser should be obtained in each instance so that the applicability of the relevant
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