Action for the annulment of a resolution
An action to set aside a resolution applies to situations where the resolution is contrary to the articles of association, good practice or prejudicial to the company’s interests, as well as where it may harm a partner. Pursuant to Article 249(1) of the Commercial Companies Code, such a resolution may be challenged by a partner by way of an action to set aside the resolution. An example of a resolution subject to annulment might be one that favours one of the shareholders, thereby causing detriment to the interests of the others.
Time limit for bringing an action
An action to set aside a resolution must be brought before the court within one month of the date on which the partner received notice of the resolution. However, in accordance with the provisions, this time limit may not exceed six months from the date on which the resolution was adopted by the general meeting of partners.
Competent court and court fees
The action is brought before the district court with jurisdiction over the company’s registered office. The court fee for filing the claim is PLN 5,000 for challenging each resolution. It is worth noting that the fee applies to each resolution separately; therefore, if multiple resolutions are challenged, the costs may increase significantly.
Formal requirements – voting against the resolution and raising an objection
A shareholder wishing to challenge a resolution must usually vote against its adoption and request that their objection be recorded in the minutes. This is important because failure to meet this requirement may lead to the action being dismissed. Exceptionally, this requirement does not apply where a shareholder has been deprived of their voting rights or where the resolution was adopted in breach of the rules governing the convening of the shareholders’ meeting.
Action for a declaration of invalidity of a resolution
An action to declare a resolution invalid may be brought where a resolution of the shareholders’ meeting is contrary to mandatory provisions of law. This means that such breaches are so significant that the resolution cannot produce any legal effects. The legal basis is Article 252 of the Commercial Companies Code, which provides that such a resolution may be declared invalid.
Time limit for bringing an action
The time limit for bringing an action to declare a resolution invalid is also one month from the date of becoming aware of the resolution, but no later than six months from the date on which it was adopted. These are strict time limits, meaning that exceeding them results in the right to challenge the resolution lapsing.
Competent court and court fees
The action is brought before the registry court with jurisdiction over the company’s registered office. The court fee is PLN 5,000 for each resolution being challenged, which means this amount must be paid separately for each resolution that is the subject of the proceedings.
Formalities – voting and raising an objection
In the case of an action for a declaration of nullity of a resolution, it is not necessary for a shareholder to vote against the resolution or to raise an objection in the minutes. Such an action may be brought regardless of the outcome of the vote, as resolutions contrary to mandatory provisions of law are deemed null and void by operation of law.
Summary of the differences between an action to set aside and an action to declare a resolution void
| Element | Action to set aside a resolution | Action for a declaration of nullity of a resolution |
|---|---|---|
| Basis | Contravention of the articles of association, good practice or the company’s interests | Contravention of mandatory provisions of law |
| Time limit | 1 month from becoming aware of the resolution, max. 6 months | 1 month from becoming aware of the resolution, max. 6 months |
| Jurisdiction | The registry court with jurisdiction over the company’s registered office | The registry court with jurisdiction over the company’s registered office |
| Fee | PLN 5,000 for each resolution | PLN 5,000 for each resolution |
| Requirement for a vote against | Required, with exceptions | Not required |
| Requirement to record objections | Required, with exceptions | Not required |
Conclusions
Challenging shareholders’ meeting resolutions is one of the most important means of protecting shareholders against actions that may harm the company’s interests. Before deciding to bring an action, attention must be paid to all formal requirements and statutory time limits. By challenging a resolution, shareholders can effectively defend their interests; however, it is essential to comply with the regulations and ensure that the required procedures are followed.
She specializes in commercial and civil law. She has gained experience in Warsaw law firms providing comprehensive services to companies and a law firm specializing in labor law. She has extensive experience in corporate consulting. She has participated in mergers and acquisitions at every stage of the process, from pre-transaction legal examination to fulfillment of regulatory requirements related to the transformation process. She prepares and reviews contracts entered into by clients and advises in cases of…
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