Critical Gloss to the Resolution of the Supreme Court from 11th September 2013, File Reference Number III CZP 39/13

Abstract

The Supreme Court acknowledge that shareholders whose voices were casted during the elections of supervisory board chosen by vote with separate groups are deprived of the right to vote from other shares at the election of supervisory board by the general meeting of shareholders. Such an approach to the issue presented by the Supreme Court is objectionable as well as the argumentation presented in the resolution. In this regard article 411[3] of the Commercial Code gives the shareholder the right to vote differently with each of his actions, and those voices do not even have to be casted by different persons. This article implemented the unknown rule to the Polish legal system, according to which the shareholder can vote differently with each of share he held. This is the opposite of previously existing rule consisting in the fact that shareholders had voted their shares not shares excluding shareholders.

The current legal status therefore allows the shareholder to create or participate in the group to elect members of the supervisory board, as well as to participate in filling the remaining mandates by way of a resolution passed by the general meeting. After entry into force article 411[3] of the Commercial Code forced to revise views of the regulations contained in article 385 of the Commercial Code. Furthermore the regulations included in article 385 § 3–9 of the Commercial Code should be interpreted through the prism of the introduction to the Commercial Code institution of so-called split voting. The regulation of the article 411[3] of the Commercial Code creates a significant breakthrough within the meaning of the essence of the regulations contained in the article 385 of the Commercial Code as rules that previously provided for the protection of the rights of minority shareholders.