Invalidation of the resolution of the shareholders of a limited liability company

Legal grounds for invalidation of a resolution of the shareholders of a limited liability company by the court

Pursuant to the provisions of Polish law, the court may declare invalid a resolution of the shareholders of a limited liability company if it is contrary to the act.

Despite the fact that the above-mentioned legal provision literally states that a resolution shall be contrary to the act, it is rightly assumed in the jurisprudence that a shareholders’ resolution may also be invalidated if it violates ratified international agreements and regulations, as well as directly applicable EU regulations.

What is important, the contradiction of the resolution with the provisions of the articles of association does not constitute grounds for declaring it invalid, but it may be a reason to repeal the resolution, as mentioned in the previous article, which is available at the following link.

The unlawfulness of a resolution is considered by Polish courts in two aspects:

1) as a contradiction with the substantive norm, which refers to the content of the resolution itself,

2) as a contradiction with the competence norm, which refers to formal issues including the method of convening and holding the shareholders’ meeting and the mode of adopting resolutions.

However, it is worth remembering that the formal defects referred to in point 2) above may be the reason for the invalidity of the resolutions of the shareholders of the limited liability company, provided that they affected the content of the resolution, which must be proven in court proceedings.

Formal irregularities may concern, among others:

• defectiveness of entries made in the shares book,
• failure to meet the statutory requirements related to the adoption of a specific resolution, including the time limit within which the resolution is to be adopted in order to bring the legal effects specified therein,
• convening the shareholders’ meeting by persons incorrectly appointed to the management board of a given company,
• violation of the requirements regarding the content of the invitation to the shareholders’ meeting,
• violation of the ban on adopting resolutions on matters not included in the agenda,
• violation of the provisions on holding meetings without being formally convened,
• violation of the provisions on the method of convening the shareholders’ meeting,
• violation of the provisions on participation in the shareholders’ meeting by proxy.

The claim for invalidation of a resolution may also be brought against a resolution aimed at circumventing the law.

A group of persons authorized to file a lawsuit for invalidation a resolution of shareholders of limited liability company

The right to bring an action to invalidate a resolution of shareholders is vested in:

• the management board, supervisory board, audit committee and their individual members;
• a shareholder who voted against the resolution and, after its adoption, demanded that the objection be recorded in the minutes;
• a shareholder who is unreasonably prevented from participating in the shareholders’ meeting;
• a shareholder who was not present at the meeting, but only in the event of a defective convocation of the shareholders’ meeting or adoption of a resolution on a matter not included in the agenda;
• in the case of a written vote, a shareholder who was omitted during the vote or who did not agree to a written vote or who voted against the resolution and, having received information about the resolution, raised an objection within two weeks.

Time limit for filing a claim

Claim to repeal a resolution of the shareholders of a limited liability company shall be submitted within six months from the date of receipt of the information on the resolution, but not later than within three years from the date of adopting the resolution.

Securing the claim

Claim to invalidate a resolution of the shareholders of a limited liability company may be secured, in particular, by submitting an application for the suspension of registration proceedings until the case is finally resolved.

In the event that the shareholders of a limited liability company undertake a resolution that is contrary to the law or which was intended to circumvent the law, it is possible to challenge it to the court by way of claim for invalidation of the resolution.