This April, we return once again to the topic of the invalidity of shareholders’ resolutions. In particular, we will look at whether a breach of a shareholders’ agreement may result in a shareholders’ resolution being declared invalid, including in light of the recent decision in case No. 27 Cdo 2390/2025.
In the case at hand, one of the shareholders sought a declaration that a resolution of the general meeting on the distribution of profits was invalid. He argued that the shareholders had entered into a verbal agreement, which had subsequently developed into an established practice, under which profits were not distributed according to the size of the shareholders’ interests, but rather based on the performance of the individual business units managed by each shareholder.
However, the general meeting ultimately resolved to distribute the profits based on the size of the shareholders’ interests, which was, in fact, the method contemplated by the memorandum of association. The claimant therefore argued that such an approach was contrary to both the shareholders’ agreement and the established practice, and that the adopted resolution was therefore contrary to good morals.
The lower courts dismissed the claim. In doing so, the appellate court took the view that the alleged agreement constituted an impermissible informal amendment to the memorandum of association.
Although the Supreme Court upheld the conclusion drawn by the lower courts, it relied on different reasoning, which is likely to be significant for future judicial practice. The Court explained that an agreement between shareholders concerning the manner of voting may constitute a separate shareholders’ agreement, rather than merely an amendment to the memorandum of association. At the same time, however, it emphasised that such an agreement exists alongside the memorandum of association and that a breach of it will not, in itself, generally result in the invalidity of a resolution of the general meeting.
In other words, where a shareholder votes in accordance with the memorandum of association but in breach of a shareholders’ agreement governing the exercise of voting rights, this does not, in itself, mean that the adopted resolution is contrary to good morals. According to the Supreme Court, this applies particularly in situations where the founding legal act and the shareholders’ agreement regulate the same issue differently.
This is precisely where the significance of the decision lies: for the first time, the Supreme Court expressly defined the relationship between a shareholders’ agreement and the memorandum of association when assessing the validity of general meeting resolutions. While confirming the legal relevance and binding nature of shareholders’ agreements, the Supreme Court also clearly distinguished their contractual effects from their corporate law effects in the context of reviewing the validity of general meeting resolutions.
For practice, an interesting question therefore remains whether, in view of the wording of this first Supreme Court decision on the issue, one can envisage situations in which a breach of a shareholders’ agreement could nevertheless give rise to grounds for declaring a resolution of the general meeting invalid.
