Granting of personal rights in the context of an ongoing corporate disput

At the time the resolution was adopted, this shareholder held a majority that allowed him to amend the articles of association himself. On the other hand, the circumstances of the case – in particular the ongoing corporate conflict – justified the assumption that this shareholder might soon lose its majority in the share capital.

Although it is permissible to grant certain personal rights to certain shareholders in the articles of association, it must be emphasised that one should not conclude from this that the creation of such privileges is completely arbitrary. For it should be pointed out that:

– The granting of personal rights to a shareholder should be rationally justified, as it implies a departure from the directive of equal treatment of shareholders.
– The limit of preference is determined above all by the compliance of the introduced regulations with the legal nature of the company and good morals as well as the principles of social co-existence.
– When performing judicial review of resolutions granting personal rights, the circumstances accompanying the granting of these privileges are not without significance. For one should approach the assessment of those resolutions which were adopted with the consent of all shareholders in a different way, and a situation in which personal rights of one of the shareholders are introduced in the conditions of an ongoing conflict.

This, however, escaped the attention of the shareholder granting itself powers to shape the composition of the company’s bodies. Consequently, the Regional Court granted security for the claim of another shareholder to revoke the resolutions under which personal rights were to be granted.

Pursuant to a freezing order, the District Court suspended the effectiveness of these resolutions. The resolutions aimed at privileging the position of one shareholder were determined by the Court to be contrary to good morals, in particular the principle of loyal action by shareholders and the principle of respect for the rights of minority shareholders. The contradiction of these resolutions with good morals was also supported by the purpose of their adoption, which was to look after the particular interests of a shareholder who had independently granted himself personal rights.

It should be emphasised that the fact that the provisions of the articles of association creating personal rights have been validly registered in the National Court Register does not stand in the way of granting security. It should be borne in mind that the issue of effectiveness (enforceability of resolutions) does not come down only to their registration in the register. The order granting security has the effect that, despite the registration of these resolutions, the shareholder in whose favour personal rights have been granted will not be able to exercise them.

W konsekwencji uznać należy, że podejście do przyznawania uprawnień osobistych powinno się cechować daleko idącą ostrożnością. Potrzeba ich kreowania zachodzi przede wszystkim wtedy, gdy istnieje rzeczywista ku temu realna przyczyna uzasadniona stosunkami spółki.