Rules of participation in the shareholders meetings of sp. z o.o. using electronic means of communication in the light of the new legislative solutions adopted on March 31, 2020

The COVID-19 epidemic and the movement restrictions introduced have a significant impact on the functioning of commercial companies and partnerships, including the holding of meetings by their collective bodies.

The Act of March 31, 2020 amending the Act on special solutions related to the prevention, prevention and combating of Covid-19, other infectious diseases and crisis situations caused by them and certain other acts of March 31, 2020 introduced new legislative solutions to the Commercial Companies Code aimed at supporting companies in their functioning.

One of the elements of the amendment of the Polish Commercial Companies Code. was to introduce the possibility of participation in shareholders meetings using electronic means of communication. This is regulated by Article 234¹ c.c.c., which, in § 1, establishes a general rule for the admissibility of such a form of participation in the meeting, indicating, however, that this may be excluded in the articles of association. Participation in the shareholders meeting is decided remotely by the entity convening the meeting.

In accordance with Article 234¹ § 2 of the Commercial Companies Code participation in the shareholders meeting on a remote basis includes in particular:

1. real-time two-way communication of all persons participating in the shareholders meeting, where they can make their views known in the course of the shareholders meeting from a location other than that of the shareholders meeting (e.g. video or teleconference), and
2. exercising the right to vote in person or by proxy before or during the shareholders meeting.

Detailed rules of participation in the general meeting of shareholders using electronic means of communication are set out in the regulations, which are adopted by the supervisory board, and in the absence of such a board, by the shareholders (art. 234¹ § 3 c.c.c.). The rules of procedure may not set out requirements and restrictions which are not necessary to identify the partners and ensure the security of electronic communication. The regulations may be adopted by resolution of the partners without holding a meeting, if the partners representing an absolute majority of votes agree in writing to the content of these regulations

Subsequently, Article 248 § 2 c.c.c., according to which the minutes of the shareholders meeting should be accompanied by an attendance list with signatures of the participants in the shareholders meeting and a list of shareholders voting by means of electronic communication. Signatures of the participants of the shareholders meeting held in accordance with Article 234¹ are not required.

In view of the above, it should be pointed out that the solutions introduced leave room for doubt.

First of all, the new regulations do not allow for an unambiguous determination of whether all participants may participate in the meeting remotely, in such a way that each of them will be in their own place of residence, and at the same time none of them will be physically present in the company’s registered office or other place where shareholders meetings are allowed. In such a situation, the question arises as to where the place of meeting, as provided for in Article 234¹ § 2 point 1 in fine c.c.c.

The above doubt is deepened in the case of companies where all shareholders are actually located outside Poland. The question then arises whether, assuming that these shareholders are the only participants in the shareholders’; meeting, such a meeting can take place at all in a manner that is relevant to the content of the article. 234 § 2 c.c.c., and if so, how to determine the place of the meeting, which is unfortunatelly referred to in Article 234¹ § 2 point 1 in fine c.c.c.

Further concerns relate to the interaction between the provisions of Article 248 § 1 and § 2 c.c.c. On the one hand, § 2 states that the signatures of the participants on the attendance list of the shareholders meeting held pursuant to art. 234¹ are not required but, on the other hand, the relationship between § 2 and § 1 is not clear, which formulates the general obligation for the chairman of the meeting and the minutesman to sign resolutions. Therefore, if these functions are carried out by the shareholders voting electronically, a situation arises in which they are not obliged to sign the attendance register, but are obliged to sign the resolution. This situation gives rise to justified doubts.

For these reasons, it must be concluded that, despite the legitimate intentions of the legislator, the solutions introduced are inconsistent. Consequently, before a given limited liability company decides to conduct the shareholders meeting remotely, it is recommended that an in-depth analysis of its legal and factual situation be carried out in order to avoid negative consequences related to the defectiveness of the adopted resolutions at the meeting held in accordance with art. 234¹ c.c.c.