Companies limited by shares, that is the limited
liability company and the joint-stock company,
represent one of the two groups of capital companies
identified under the provisions of the Commercial
Companies Code (“CCC”). In the case of both of the
above companies, the law requires that certain acts in
law be performed only with the approval of the
shareholders, general meeting, or supervisory board.
The effects of failure to provide such approval can
be of two kinds.
Firstly, pursuant to Article 17 of CCC, where the
statute requires a resolution of the shareholders,
general meeting, or supervisory board for an act in
law performed by the company, an act in law
performed without the required resolution is invalid.
Significantly, the approval may be given prior to the
company’s declaration or thereafter; no later,
however, than within two months of the date on
which the declaration is made (such confirmation has
retroactive effect as of the date on which the act in
law was performed, which means that the legal act
starts producing legal effects once performed).
The situation changes when the approval of the
company’s relevant corporate body is required solely
under the company’s articles of association. An act
in law performed without such approval is valid
which, however, does not exclude the liability of
members of the management board or liquidators
towards the company for a breach of the articles of
association.
The above regulations act as general principles
introduced by the Commercial Companies Code.
However, there are also specific provisions which
exclude the pain of invalidity laid down under
Article 17 of CCC quoted above. For example,
Article 230 of CCC provides that disposal of a right
or contracting of an obligation to provide
performance whose value exceeds twice the value of the share capital of a limited liability company
requires a resolution of the shareholders, unless the
articles of association provide otherwise. Moreover,
the following sentence of the regulation excludes the
application of Article 17 § 1.
Another scenario deserving scrutiny is the case when
a resolution of the company’s corporate bodies
approving the performance of a legal act is
subsequently annulled or declared invalid. Where the
validity of an act performed by the company depends
a resolution of the meeting of shareholders,
annulment of such resolution has no effect vis-à-vis
third parties acting in good faith (Article 254 §2 of
CCC). Consequently, annulment of or declaring a
resolution of the company’s corporate bodies invalid
does not affect the legal standing of a third party
acting in good faith. One could say that for a third
party the validity of the resolution continues. The
same applies to a resolution of the company’s
corporate bodies that is declared invalid.
In order to examine the legal standing after an act in
law is performed by a company limited by shares
without the required approval of that company’s
corporate body, one first needs to determine whether
the approval requirement is laid down under
provisions of general application (i.e. the statute) or
under the company’s articles of association. Based
on that determination, the act in law either remains
valid or not.
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
legislation or other legal development to the particular facts can be verified.