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 no 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. 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.