Adopting resolutions by the general meeting of shareholders of a limited liability company, as reflected in the relevant minutes of the meeting, is subject to certain requirements. Perhaps the most important of these is the form in which it is taken – whether it is in simple written form or in a qualified form, with notarized signatures and content.
The baseline for resolutions that are more important for the company is more formal with notarization requirements. However, the law lets the shareholders decide on the simple written form at their discretion. The simplified written form has many advantages – it allows resolutions to be adopted remotely with the help of an electronic signature, for example, and everything happens much more expeditiously than gathering all the shareholders together at the same time in front of a notary. Of course, there are also disadvantages – notarization provides a higher degree of security when adopting resolutions.
Although the consequences of non-compliance with the form are perfectly clear – Article 137(5) of the Commere Act (“CA”) expressly stipulates that failure to comply with the prescribed form renders the decisions taken null and void, case law reveals a number of nuances. Some of them are discussed in Ruling No. 144/02.06.2025 on Commercial Case No. 1550/2024 of the SCC (the “Ruling”).
The legislator’s goal
In its Ruling, the SCC emphasizes on the main goal of the “heavier” form of adopting resolutions. This is namely the deterrent effect of not submitting false minutes of general meetings to the commercial register (i.e., those that did not actually take place, containing resolutions that were not actually adopted, since the signatories were not actually the shareholders themselves).
Implications beyond resolutions subject to registration
Additionally, however, the SCC emphasizes the nuance that the law provides for the invalidity not of the registration submission, but of the resolution itself. This means that nullity extends to resolutions whose subject matter is not subject to entry in the Commercial Register. If we take as an example the resolution on the acquisition and disposal of real estate, such a resolution with a flawed form does not entail any legal consequences whatsoever. For the example given, it is important to note that the resolution is not a prerequisite for the validity of the transaction itself. In other words, such a transaction executed by the manager without such a resolution (or if it has been adopted but in a flawed form) will have legal consequences but will be grounds for holding the manager liable to the company.
Specific hypotheses
The case examined in the Ruling represents a very specific hypothesis that could lead to the invalidation of the form of the resolutions adopted. It concerns an application for entry in the Commercial Register, to which a minutes of the general meeting was submitted, in which an error was made in writing the number of votes “for” the resolutions adopted. It is stated numerically that 50 shares of the capital voted “for,” but spelled out the votes “for” were just “ten”.
As a result, the applicant was refused by the Registry Agency because of the discrepancy. A correction was made by the notary who certified the minutes, and a new registration was requested. However, the court found that the minutes of the meeting stated that many partners were present, but only one of them had certified their signature. This, according to the court, renders the resolutions adopted at the meeting null and void. It is irrelevant in which direction the shareholders voted, whose signatures were not notarized. Insofar as a form with notarized signature and content is provided for, the shareholders whose signatures are not certified are deemed not to have signed the minutes.
That is why it is very important that the drafting of corporate documents, as well as the verification within the framework of an analysis when acquiring a company, for example, covers nuances such as those discussed in this article. The team at Ilieva, Voutcheva & Co. Law Firm is always available to ensure the best quality and full compliance with the legal framework.
Тhe article above is for information purposes only. It is not (binding) legal advice. For a thorough understanding of the subjects covered and prior acting on any issue discussed we kindly recommend Readers consult Ilieva, Voutcheva & Co. Law Firm attorneys at law.
