opinion Plenum of the Constitutional Court to declare invalid the resolution of the General Meeting


Published: 2013

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132/2013 Coll. Communication from the Constitutional Court, the Constitutional Court Plenum adopted under file. Nos. Pl. US-st. 36/13 of 23 April 2013, consisting of Stanislav Balik, Vlasta Formánková, Vojen Güttler, Pavel Holländer, Ivana Janu, Vladimir Kurka, Dagmar Lastovecká, Jan Musil, Jiří Nykodým, Paul Rychetský (Rapporteur), Miloslav Vyborny and Michael Židlická on III proposal. of the Constitutional Court under § 23 of Act no. 182/1993 Coll., on the Constitutional Court regarding its legal opinion for managing file no. No.. III. US 3489/12, which departs from the legal opinion of the Constitutional Court declared in its judgment of 21 March 2011 sp. . I. ÚS from 1768 to 1709 and 26 January 2012, file no. . I. ÚS 2154/11, the following opinion: The scope of statutory procedural guarantees constitutionally guaranteed property rights of minority shareholders (art. 11 of the Charter of Fundamental Rights and Freedoms) in determining the amount of adequate compensation for participating securities whose property they lost as a result of the adoption General Meeting resolution on the squeeze-out in accordance with § 183i Act no. 513/1991 Coll., the Commercial Code, as amended, is not a reason for granting the application, which seeks the minority shareholders pursuant to § 131 paragraph. 1 of the Commercial Code, as amended amended, the invalidity of the resolution of the General Meeting. Judicial protection of that fundamental right, in this context, the minority shareholders obtain the proceedings on an application for review of the adequacy of the consideration under § 183k of the Commercial Code. Reason 1. Before the Constitutional Court proceedings were initiated on the constitutional complaint Ing. Ales clock against a Supreme Court resolution dated June 20, 2012, ref. No. 29 Cdo 1169 / 2011-238, ruling of the High Court in Prague of 4 November 2010, ref. No. 7 Cmo 477 / 2009-209 and the Regional Court Usti nad Labem on 11 September 2009 ref. no. 72 Cm 150 / 2008-178; thing is kept under file. No.. III. US 3489/12. Those decisions were issued in proceedings complainant about the invalidity of the General Meeting of Copper Povrly, as, held on 28 August 2008, which was decided under item 3 of the agenda on the transfer of company shares owned by other shareholders to the main shareholder. The complainant was at the time of holding a minority shareholder of the company. The Regional Court in Usti nad Labem its resolution dismissed the action, the Prague High Court's decision subsequently upheld the complainant's appeal. Appeal against a confirmatory decision of that court, the Supreme Court rejected as inadmissible. 2. The constitutional complaint, the complainant argues that a transfer of shares to the majority shareholder decided according to § 183i through 183n Act no. 513/1991 Coll., The Commercial Code, as amended by Act no. 104/2008 Coll., That according to legislation which is contrary to the constitutional order. Part of it is not obligatory supervision of the Czech National Bank over the purchase of the securities as one of the essential guarantees of protection of minority shareholders' rights within the meaning of the judgment of 27 March 2008, file no. Nos. Pl. US 56/05 (N 60/48 SbNU 873, 257/2008 Coll.), Especially its paragraph 71. Under these circumstances, according to the complainant, the general duty of the courts to provide protection for its decision, the constitutionally guaranteed right to own property under Art. 11, paragraph . 1 of the Charter of Fundamental Rights and Freedoms (the "Charter") and decided to annul the decision of the General Meeting. By having done so, should such a fundamental right to violate the contrary. 3. According to the III. of the Constitutional Court is not the objection in the matter irrelevant. Already at the time of the effectiveness of the legislation, the constitutionality of which was expressed in the Judgment. Nos. Pl. US 56/05, the supervision of the Czech National Bank (resp. Before the Securities and Exchange Commission) regarding the question of the consideration for corporate securities, which were transferred to the main shareholder (cf. § 183i paragraph. 5 of the Commercial Code, as amended by Law no. 377 / 2005 Coll., and Act no. 57/2006 Coll.). Although her consent was conditional on the adoption of a resolution of the General Meeting of the squeeze-out of participating securities, subject to oversight, however, was never a question of suitability or validity of that step, because it belonged to an assessment provided that the statutory procedural conditions solely to the General Meeting. If the legislature had decided amendment by Act no. 104/2008 Coll., On takeover bids and amending some other Acts (Takeover Bids Act) to limit this concept of supervision of the Czech National Bank only on the purchase of equity securities that are admitted to trading on a regulated market touched in the remaining joint stock companies only those procedural guarantees the rights of minority shareholders related to the determination of the above adequate compensation. For this reason, the application object in question without III. Senate Constitutional Court on this point to rule on its relevance, it came substantively into account at the stage where the general courts decide on a proposal to review the adequacy of the consideration under § 183k paragraph. 1 of the Commercial Code, and not in proceedings challenging the decision of the general meeting under § 131 paragraph. 1 of the Commercial Code. This ultimately is reflected in the wording of § 183k paragraph. 4 and 5 of the Commercial Code, which specifically excludes the inadequacy of the consideration as a ground of invalidity of a general meeting resolution on the transfer of the securities to the principal shareholder pursuant to § 183i of the Commercial Code. The fourth interpretation is not in accordance with the judgment reached by the first panel of the Constitutional Court in its judgment of 21 March 2011 sp. . I. ÚS 1768-1709 (N 49/60 SbNU 577). In this judgment upheld the constitutional complaint of the same complainant and found a violation of his fundamental right to own property under Art. 11 of the Charter, which will be ordinary courts allow that dismissed its application for declaration of invalidity of the resolution of the General Meeting of the squeeze-out of participating securities pursuant to § 183i of the Commercial Code , as in force until 28 September 2005, received at the effectiveness of the legislation before determining the supervision of the Czech National Bank. Now the lack of supervision should be combined with a shorter deadline for convening the general meeting, improper preparation of minority shareholders sufficient grounds for granting the application, as impossible due protection of the complainant's fundamental rights. In these conclusions, I stayed senate of the Constitutional Court in its judgment of 26 January 2012, file no. . I. ÚS 2154/11 (available at http://nalus.usoud.cz), which in a similar case upheld the constitutional complaint against decisions by the minority shareholder of ordinary courts. 5. With the above legal opinion of the III. Senate Constitutional Court does not concur. It is based on the false premise that the lack of statutory guarantee of the rights of minority shareholders in determining the amount of adequate compensation, eg. Due to lack of obligatory supervision by the Czech National Bank, may be a reason for invalidity of the resolution of the General Meeting, which was decided on the transition to the majority shareholder. 6. Front is to be noted that the institute of forced sale of equity securities (ie. A squeeze-out) pursuant to § 183i through 183n of the Commercial Code has become part of the law on the amendment by Act no. 216/2005 Coll., Amending Act no. 513/1991 Coll., the Commercial Code, as amended, Act no. 99/1963 Coll., Civil Procedure Code, as amended, Act no. 189/1994 Coll., on Higher Court Officials, as amended amended, and Act no. 358/1992 Coll., on notaries and their activities (the Notarial Code), as amended, which came into effect on 3 June 2005. To complement stipulated by the legislation on mandatory supervision Securities Commission with effect from 29 September 2005 to an amendment made by Act no. 377/2005 Coll., on the supplementary supervision of banks, credit unions, insurance companies and investment firms in a financial conglomerate and amending some laws (Act on Financial Conglomerates ), while another amendment, this time by Act no. 57/2006 Coll., on the amendment of laws in connection with the unification of financial market supervision, with effect from 1 April 2006, this supervision is entrusted to the same extent the Czech National Bank. To limit the obligatory supervision only for the purchase of listed shares has occurred, as mentioned above, the amendment to the Commercial Code by Act no. 104/2008 Coll., Which came into force on 1 April 2008. The Constitutional complaints about which I decided senate of the Constitutional Court related to situations where it was a squeeze-out decision for the original legislation (ie. before the determination of Supervisors); in a matter which assesses III. Senate Constitutional Court, this happened after this supervision is appropriate amendment limited. 7. In its judgment. Nos. Pl. US 56/05 the Constitutional Court came to the conclusion that legislation forced buy-out of securities pursuant to § 183i through 183n of the Commercial Code, as amended by Act no. 377/2005 Coll. (ie. after the determination of Supervisors) provides minority shareholders sufficient guarantees as to the amount of reasonable compensation. These guarantees consisted of obligations major shareholder demonstrate the adequacy of the consideration expert opinion, as well as the obligatory supervision by the Czech National Bank, which in the context of assessing the amount of consideration and whose consent a condition of receipt of the decision of the General Meeting, and finally the possibility of subsequent judicial review, since minority shareholders they can within the time limit assert and protect their rights, filing a petition under § 183k of the Commercial Code to review the adequacy of the consideration. From the reasoning of the judgment (in particular paragraphs 66 to 71) can be deduced that the Constitutional Court considered the supervision of the Czech National Bank as an important means of safeguarding the request unbiased expert determination of adequate compensation, whose fulfillment is a prerequisite for the protection of property rights of minority shareholders. This oversight should eliminate potential risks arising partly from the fact that the security expert's report is in the hands of the main shareholder, partly from lack of experience steady application of criteria on the basis of the adequacy of compensation should be assessed, respectively. reviewed. Above does not mean that the Constitutional Court would formulate the request supervision by the Czech National Bank as a condition of the constitutionality of legislation. 8. It is clear that under these conclusions, the original legislation that was effective during the period from 3 June 2005 to 28 September 2005 (ie. Before determining the supervisors) and whose applications are dealt with by the findings sp. . I. ÚS 1768-1709 and I. ÚS 2154/11, characterized by serious deficiencies. The absence of supervision by the Czech National Bank or other similarly effective legal means to protect the rights of minority shareholders could, in the context of the whole of the legal regulation even justify a finding of an unconstitutional loopholes and thereby constitute in relation to the derogation reason. Such a conclusion, however, I senate of the Constitutional Court in its judgments could not pronounce. Instead, he pointed to weaknesses in this legislation, ie. Lack of supervision by the Czech National Bank and the tight deadline for convening the general meeting, and drew one conclusion that could affect their existence on the basis of the incurred civil relationships. General courts because, in his view, should meet the actions of minority shareholders and declare invalidity of resolutions of general meetings, which was decided on a forced redemption of the securities. 9. dissent III. of the Constitutional Court not mentioned shortcomings before determination of supervision open the way to challenge private law in question, and as would such a result could not have a potential comparable to today's deficit rules (ie. after restrictions supervision). The first reason is the general inadmissibility of retroactive effect of the repeal legislation, respectively. declaration of its unconstitutionality, in relation to private relations [particularly closely judgment of 6 February 2007, file no. Nos. Pl. US 38/06 (N 23/44 SbNU 279; 84/2007 Coll.); Judgment dated December 18, 2007, file no. zn. IV. US 1777-1707 (N 228/47 SbNU 983)]. Thus defined the principle of legal certainty must be applied here, even though I Constitutional Court panel did not make the unconstitutionality of the legal regulation. In fact it is based, when taking into account the legal conclusions contained in its judgment. Nos. Pl. US 56/05 found such shortcomings that call into question the possibility of its application. 10. Cancellation of the Act by the Constitutional Court does not absolve the legal basis of the existing private relations that have arisen on the basis thereof, or does not post their annulment. An exception to this principle may be permitted only very rarely, eg. In the case of extremely intense derogative reason (especially in conflict with the material core of the Constitution of the Czech Republic), which would in that case had challenged on constitutional positions institute compulsory squeeze-out as such. Such grounds are, however, considering the legal conclusions contained in its judgment. Nos. Pl. US 56/05 clearly not given. The Constitutional Court had approved of him as a constitutionally consistent basic principle institute compulsory squeeze-out, ie the possibility of loss of the property rights of minority shareholders at the Annual General Meeting that won a majority of nine-tenths of the votes of the owners, provided that adequate consideration. 11. As regards the second reason, it was indicated in the introduction to this opinion (see his point 3). Objection lack of supervision by the Czech National Bank is substantively addresses the question of review of the adequacy of payment, not the decision itself, whether it be forced to purchase the securities. This is not to say that these are two completely separate issues. Provided, however, is not the adoption of the relevant resolutions of the General Meeting, subject to the approval of the Czech National Bank, does not mean that they were concerned minority shareholders at its curtailment of the right to adequate compensation. Its content remains the same in terms of substantive law. Changing only the procedural guarantees enforcement of that claim, which would not have occurred if the amount was incorrectly determined to be lower. 12. Is it possible to summarize the reduction of guaranteed rights of minority shareholders may well lead to a conclusion on the unconstitutionality of the legislation, its possible repeal by the Constitutional Court, however, did not affect transitions already occurred participating securities to the main shareholder, or the existence of the right of minority shareholders to adequate compensation. The courts are in this case obliged to provide the concerned minority shareholders judicial protection of their constitutionally guaranteed rights to own property, that can not lie in the invalidation in question buyouts because it would impermissibly interfered in the rights acquired by both major shareholders, but ultimately the minority shareholders, already with Forced purchase reconciled. To provide protection of minority shareholders by the courts will be basically just a way that they will have the opportunity to challenge the amount of consideration established a General Meeting resolution, and thus obtain the payment of the amount to which they would have had under the Act properly entitled. Such a designation, however, can not obtain the procedure for declaration of invalidity of the General Meeting pursuant to § 131 paragraph. 1 of the Commercial Code, but a petition under § 183k of the Commercial Code to review the adequacy of the consideration that such a remedy came into consideration as early as the effectiveness of the original legislation (ie. prior to the determination of supervision). 13. that the wording of the first findings of the Constitutional Court, against which to define this position, it is clear that he was aware of the potential conflict between the existence konstatovaného him because of the abolition of the General Meeting resolution on the one hand and the principle of legal certainty on the other. In light of several years of legal proceedings favored in both cases, legal certainty for participants of the legal relations. The question is whether it would be another option, if the time interval was shorter, eg. For several months. This issue I. Constitutional Court panel did not have to deal with, because its legal conclusions apply only to the relatively short and long elapsed period from 3 June 2005 to 28 September 2005 (ie. Before determining the supervisors), the general courts and the Constitutional Court with it But faced in connection with the new legislation, which is to limit the supervision of the Czech National Bank's minority shareholders also questioned. Likewise, it is questionable whether even the ordinary courts themselves can assess the level of statutory guarantee of property rights of minority shareholders and that in the event that they will not be sufficient, to apply the legislation in a constitutional manner, so that actually forced repurchase of the securities will not allow. According III. Senate Constitutional Court is necessary to both questions is answered in the negative. General courts may either submit a proposal to repeal them applied the provisions of the Commercial Code pursuant to § 64 par. 3 of Act no. 182/1993 Coll., On the Constitutional Court, as amended, or derive from, if any compliant Constitutional Court finding something else proceed in accordance with the law and to respect it determined the extent of the guarantee of the rights of minority shareholders. In the case of things, in connection with which III. Senate Constitutional Court, presented the draft opinion, which means that the ordinary courts could not allow the application to declare invalid the resolution of the General Meeting only on the grounds that the law, without calling into question its constitutionality, insufficiently guarantees the right of the complainant as a minority shareholder to adequate compensation. This objection is also the case with this type of control irrelevant because the judicial review of the amount of compensation is the complainant could obtain only in the proceedings on a petition under § 183k of the Commercial Code (see also section 3 of this opinion). 14th remains to add that the existence of the latter control also explicitly excludes the possibility that the applicant could obtain any compensation compensation by way of damages against the State based on the ruling of the Constitutional Court, which would only be declared in violation of his constitutional rights by the contested decisions. Its claim for adequate compensation because he could within the time limit was applied in this proceeding. 15th For all these reasons submitted III. Senate Constitutional Court under § 23 of the Law on the Constitutional Court the question of the relevance objection absence of adequate legal guarantees of rights of minority shareholders in determining the amount of adequate compensation (in this case the absence of supervision by the Czech National Bank), which the applicant challenges the contested decision of the ordinary courts in proceedings concerning the invalidity General Meeting resolution on the transfer of the securities to the principal shareholder pursuant to § 183i of the Commercial Code, to assess the plenary that his arguments in its entirety endorsed and adopted the legal opinion, which is indicated in the statement of opinion. Constitutional Court chairman: JUDr. Own hand