Convening a shareholders' meeting - formalities

According to article 238 of Polish Code of Commercial Companies (Kodeks Spółek handlowych - k.s.h.), shareholders' meetings shall be convened by notices sent by registered mail or courier at least two weeks before the date of the shareholders' meeting. Instead of by registered mail or courier, notice may be sent by e-mail provided that the shareholder has given written consent to such form and gave the address to which the notice should be sent.

Therefore, at present, the Code provides three ways to notify shareholders about the shareholders' meeting:

1) by registered mail;

2) by parcel sent by courier;

3) by e-mail (after meeting the conditions specified in the provision).

It should be emphasized that what counts is the date of posting, not delivery of the notice. The deadline specified in this provision is considered to be met if the notification was sent before the expiry of two weeks, even if it turned out that delivery of the package is impossible. The case law, however, expressed the view that art. 238 k.s.h. it is of a guarantee nature and its deliberate violation should be considered as violating decency, in particular the principles of fair trading (so, among others, the Court of Appeal in Warsaw I ACa 1102/11, LEX No. 1238159).

Why, then, from the point of view of both the company and the partner the correctness of notification about the date of the meeting matters? An action for annulment of a resolution, taken at the absence of a partner at the meetings, can be brought by this partner, only in the event of defective convening of the meeting or adoption of a resolution on a matter not included in the agenda (art. 250 and 252 of the Code of Commercial Companies and Partnerships). Therefore, from the perspective of legal certainty, compliance with the appropriate procedure is extremely important.

It should be emphasized, however, that in accordance with the decision of the Supreme Court of 26 March 2009 (reference number I CKS 253/08) and the currently widely accepted view, the said provision creates only the minimum guarantee statutory protection provided to the partners. Notifying them in a different way, which allows the partner, however, to receive information about the date, place and agenda of the convened shareholders' meeting, in advance, cannot be treated as faulty and convened without the right to adopt resolutions.

T

his means that if a partner is notified in a different way, allowing to obtain information about the date, place and agenda of the convened shareholders' meeting in advance, then it cannot be treated as faulty and convened without the right to adopt resolutions, and thus, the shareholder will be deprived of the right (valid standing) to appeal against resolutions adopted at this meeting due to faulty convocation.

To be precise, in the judgment of June 12, 2018 the Poznań Court of Appeal expressed the view that in a situation where a partner would not be able to receive a notification for objective reasons (e.g. he had an unforeseen trip abroad in family matters; he had an accident and is staying in a hospital in a condition that does not allow him to read the content of the notification; or he has been temporarily arrested and is in pre-trial detention center, which prevents him from even knowing about the sent notification) it cannot be considered sufficient to properly convene an assembly by only posting a parcel at the post office or courier. It cannot be considered that in such a situation (where the partner's interest requires protection and without his fault he is unable to attend the meeting or even appoint a representative acting on his behalf)a partner cannot benefit from protection.

However, this is not a widespread view.

The statute of the company may also provide for other, less restrictive ways to convene a shareholders' meeting.

We also encourage you to read our text on convening assemblies during the COVID-19 epidemic.