04.02.2022

Is it possible to suspend the member of the management board of the limited liability company without authorisation of the meeting of shareholders on the company’s agreement?

We have pleasure to inform on recent success in our Law Firm! We had an opportunity to conduct the case with case law nature which completed with obtaining by our Client the favorable judgment in the case and stating the invalidity of the resolution of the meeting of shareholders of the limited liability company.

 

The cases concerned the possibility to suspend a member of the management board of the limited liability company in the situation when the company’s agreement does not settle such an issue. Then the question raises whether the partners dispose of the right to suspend the members of the management board at all.

 

The above issue is not definite as the dispute in the doctrine and judicature lasts until the present day. In the scope two excluding each other interpretations are presented:

1) the meeting of shareholders may not suspend the member of the management board when the company’s agreement does not grant such a right as the regulation of the limited liability company does not contain an analogical standard to the joint stock company which should be interpreted as the aware act of the legislator who in this way did not grant such a right ex lege;

2) it is possible to suspend the member of the management board by the meeting of shareholders even when the company’s agreement does not grant such a right.

 

The Appeal Court in Poznań agreed on the second of the views presented above – presented also by the Law Office from the beginning of the procedure as well as on the stage of recommending to the Client the decision on adopting the resolution in the subject of suspending the member of the company’s management board.

 

The Court stated that the above position is justified with the result of reasoning and  maiori ad minus – if one may want „more”, one may “less”. In accordance with the principle, because the meeting of shareholders may recall the member of the management the more it may suspend him in activities. The court justified also its position with exceptional nature of the regulation of art. 368 § 4 k.s.h. as an exception from the basic principle in accordance with which the supervisory board decides on personal composition of the management board of the joint stock company.

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