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Introduction

The basis for challenging general meeting resolutions – and, in this context, permissibility of distinguishing the category of non-existent resolutions – constitutes a fundamental issue in company law doctrine, with disputes on this subject running already before World War II. The dispute turns on the exact taxonomy of unlawful shareholder resolutions, and on whether the applicable statutes present an exhaustive catalogue of grounds on which a resolution can be challenged as unlawful. One of the resulting questions is whether art. 189 of the Polish Civil Process Code can be taken as a basis for claiming non-existence of an alleged resolution. The Polish Supreme Court contributed to this debate in the present judgement.

  1. Supreme Court judgement of 20 December 2017 (case ref I CSK 160/176

The catalogue of grounds militating for non-existence of a shareholders resolution in the eyes of the law certainly encompasses a situation where the purported resolution has been adopted by a non-existent body. […]. For purposes of defining the “non-existent resolution”, we should assume that we are dealing with a resolution adopted not by a governing body of the cooperative, but by individuals who, at the moment of the resolution’s adoption, did not have the legal status of such a body. Continuing along this angle, if the resolution cannot be said to have been adopted, we can hardly speak of its being either valid or invalid, because the resolution simply does not exist (…)

For the entire text (in Polish) please visit: Glosa do Wyroku Sądu Najwyższego z 20 Grudnia 2017 r., I CSK 160/17