The provisions governing limited liability companies (sp. z o.o.), simplified joint-stock companies and joint-stock companies also provide for a procedure whereby resolutions may be adopted without a formal procedure for convening, respectively, a shareholders’ meeting (in the case of a limited liability company) or a general meeting (in the case of a simplified joint-stock company and a joint-stock company), under which resolutions may be adopted despite the absence of a formal convening of, respectively, a general meeting or a shareholders’ meeting, provided that all shares are represented or the entire share capital is represented, and none of those present has raised an objection to the holding of the general meeting or shareholders’ meeting or to the inclusion of specific items on the agenda.
Although general partnerships, professional partnerships and limited partnerships also have partners, the legislator does not provide for a specific procedure for convening them to a meeting and, subsequently, no formal procedure for them to adopt resolutions. I do not specifically mention the entire group of partnerships due to the fact that, in the case of a limited joint-stock partnership, the legislator has regulated the adoption of resolutions by the general meeting and, in these matters, refers to the provisions governing joint-stock companies.
At this point, one might consider whether, in the absence of direct regulations regarding the formal procedure for convening partners in a limited partnership, the provisions applicable to capital companies may be applied mutatis mutandis. The Commercial Companies Code in no way provides for the ‘appropriate’ application of the provisions concerning the convening of a partners’ meeting or a general meeting in capital companies to partnerships, including in particular to the limited partnership discussed in this article. The only reference the Commercial Companies Code makes to a limited partnership is in Article 103(1) of the Code, according to which, in matters not regulated in the chapter on limited partnerships, the provisions on general partnerships shall apply mutatis mutandis. It should also be noted that the regulations concerning general partnerships do not provide for a special procedure for convening a meeting of partners either. Consequently, apart from the applicable rule applicable to partnerships regarding unanimity when adopting resolutions with the participation of all partners in matters exceeding the scope of the company’s ordinary activities (Article 43 of the Commercial Companies Code) or the unanimity of partners entitled to manage the company’s affairs in matters not exceeding the scope of the company’s ordinary activities (Article 42 of the Commercial Companies Code), the provisions do not stipulate that the so-called ‘invitation’ to a meeting of partners of a limited partnership, preceding the adoption of a resolution, should take place in a prescribed manner. It is worth noting that, in the absence of a statutory ‘appropriate’ application of the provisions governing capital companies, these provisions are not applied by analogy.
In the absence of formal requirements regarding the convening of partners for a meeting in the context of partnerships, it should be noted that, in reality, the form of the convening and the content of the invitation will be irrelevant to the validity of this act. This is also confirmed by the Judgment of the Court of Appeal in Warsaw of 11 January 2022, I ACa 581/21, according to which “Unlike the provisions applicable to capital companies, the regulations concerning partnerships do not attach any consequences regarding the validity of legal acts undertaken on behalf of the partnership by persons authorised to represent it to the absence or invalidity of partners’ resolutions required under Article 39 § 3 and Article 43 of the Commercial Companies Code.”
Given that, in the case of general partnerships, professional partnerships and limited partnerships, the procedure for convening partners’ meetings has been left outside the legislator’s scope of interest, it should be noted, following Prof. Kidyba, that it should therefore be determined by the partnership agreement or by the customs established within the partnership (cf. A. Kidyba, A. Witosz, 2.3.2.7. Obligation to give notice of the plan [in:] A. Kidyba, A. Witosz, Mergers, divisions and conversions of commercial companies, Warsaw 2010.). Thus, if the articles of association do not specify a procedure for issuing invitations to a partners’ meeting, or no established practice existed previously, it is indicated that if such an invitation is to be sent in writing, there is nothing to prevent the invitation to the partners’ meeting from including the requirements applicable to capital companies.
In view of the above, it appears that in the case of partnerships, including limited partnerships, when drafting invitations to partners’ meetings, one may refer to the guidelines applicable to companies limited by shares.
Frequently asked questions
Is there an obligation to formally convene a shareholders’ meeting in a limited partnership in accordance with the provisions of the Commercial Companies Code?
The provisions do not provide for any formalized procedure for convening partners in a limited partnership. Even the rules known from limited liability companies or joint-stock companies do not apply here by analogy. Therefore, the form of convening itself does not affect the validity of resolutions adopted.
What rules apply to the adoption of resolutions by partners of a limited partnership in matters exceeding the scope of ordinary activities?
In matters exceeding the scope of ordinary activities, a resolution must be adopted unanimously by all partners. This follows directly from the Commercial Companies Code and applies regardless of the form of convening the meeting. For matters not exceeding ordinary activities, unanimity is only required among the partners managing the company’s affairs.
Can the lack of formal convening of partners result in the invalidity of resolutions or legal acts of a limited partnership?
No. The lack of a formal convening procedure does not cause invalidity of either resolutions or acts undertaken on behalf of the company. The Court of Appeal in Warsaw confirmed that, unlike in capital companies, failure to follow the convening procedure does not affect the validity of legal acts here. Resolutions may therefore be valid even with a completely informal meeting of partners.
How should the procedure for convening partners be determined if the partnership agreement does not contain relevant provisions?
When the partnership agreement is silent about the convening procedure and no custom has developed within it, one may rely on solutions adopted for capital companies. Nothing prevents applying requirements typical for a limited liability company or joint-stock company in the invitation to a meeting. This is an acceptable way to fill a gap in internal regulations.
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She specializes in civil, commercial and business law. In the corporate and energy department, her activities are mainly based on providing corporate services to companies, reviewing and preparing commercial contracts, drafting litigation and non-litigation pleadings and preparing analyses and legal opinions, particularly in the sphere of business law and energy law. She also has professional experience in administrative and civil proceedings, which she gained in Warsaw law firms. She supports the Firm's…
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