Category of non-existent resolutions of the shareholders’ meeting of a limited liability company

Publication / 16.10.2023

On September 20, 2022. The Supreme Court issued a judgment in the case of II CSKP 840/22, in which it supported the position allowing the distinction of so-called non-existent resolutions, as a separate category from invalid resolutions, i.e., those contrary to the law.

The case concerned a resolution of a shareholders’ meeting that was passed by entities that were not actually shareholders of the company. According to the Supreme Court, however, a non-existent resolution can also be referred to when “there was no shareholders’ meeting at all, and when there was no quorum necessary for its adoption, or the resolution did not receive the required majority of votes. A shareholder’s resolution may also be considered non-existent in such factual situations when the results of the vote were falsified, there was a recording of the resolution without a vote, or the resolution was adopted on a matter not included in the agenda, except as provided in Article 239 § 1 of the Companies Act. The qualification of a resolution as non-existent occurs when physical coercion was used against shareholders, the resolution was adopted deceptively, or the content of the resolution is incomprehensible and its meaning cannot be determined through interpretation.”

The Supreme Court’s position is significant insofar as it relates to a resolution of a shareholders’ meeting that was adopted on November 6, 2007 and was not challenged within the statutory deadlines. These deadlines, as a rule, effectively limit the possibility of challenging resolutions in court, both when it comes to an action to declare the resolution invalid and an action to revoke it.

However, the multiplicity and diversity of factual situations shows that in some particularly justified cases, despite the failure to challenge a resolution within the statutory deadlines, it is possible to assume that such a resolution does not have legal effects, as it does not meet the basic conditions constituting a resolution as a legal act. Such an interpretive procedure, however, can be carried out only exceptionally.