On behalf of the Republic
Constitutional Court decided on 27 March 2008 at the Plenum, composed
Frantisek Duchon, Vlasta Formánková, Vojen Güttler Pavel Holländer, Ivana Janu,
Vladimir Kurka, Dagmar Lastovecká, Jiri Mucha, Jan Musil, Jiri Nykodým,
Pavel Rychetsky, Miloslav Vyborny and Michael Židlická on the proposal
group of senators of the Senate of the Czech Republic, for which it
Senator Sonia Paukertová, legally represented by JUDr. Petr Zima,
lawyer in Prague 2, Silesian 13, the annulment of § 183i through § 183n
Act no. 513/1991 Coll., The Commercial Code, with the participation of parliamentary
Deputies of the Czech Parliament and the Senate
Czech Republic, as the parties in the hearing as follows:
The petition is denied.
Recap proposal and the petitioner's arguments
First In the petition to the Constitutional Court received on 16 November 2005, a group of senators
(hereinafter "petitioner") seeking the annulment of the provisions of §
183i through § 183n Act no. 513/1991 Coll., The Commercial Code, as amended
amended (hereinafter the "Com. Code."), which are included
under the marginal heading "right of squeeze-out"
(hereinafter the "right to purchase"). This proposal was in accordance with § 35 para. 2 of Law no.
182/1993 Coll., On the Constitutional Court, as amended (hereinafter
"the Constitutional Court Act"), the Constitutional Court rejected an order of 8 .
December 2005 sp. Nos. Pl. US 53/05, when it was discovered that the same case
Constitutional Court has received under sp. Nos. Pl. US 43/05
proposal to the Municipal Court in Prague to repeal § 183i through § 183n Com. disciple. and § 200d Civil
Procedure Code (hereinafter referred to as "CPC."). In accordance with § 35 para. 2
Law on the Constitutional Court, the plaintiff has
intervener in the proceedings in the matter file. Nos. Pl. US 43/05.
Second The petitioner submitted his application again, referring to innovations that in comparison with the proposal
sp. Nos. Pl. US 43/05 brought to the provisions on the right
purchase of participating securities of an amendment to the Commercial Code
contained in the Act no. 377/2005 Coll., On Financial Conglomerates.
Referring to the arguments which, in relation to the contested provisions of the Commercial Code
put forward in the previous administration.
Third Constitutional Court Act does not address specifically the issue of the status
petitioner, a draft of which was, according to § 35 para. 2 of this Act
rejected, and which therefore became intervener
already instituted proceedings in which the proceedings were proposal rejected without there
to discuss its merits. Especially in cases where the plaintiff in
earlier proceedings initiated by the court pursuant to § 64.3 par. 2 Act on the Constitutional Court
(concrete review of constitutionality), the situation is not excluded that
Constitutional Court concludes that such the proposal does not meet the conditions of Art. 95
paragraph. 2 of the Constitution, and a previous proposal to reject the obvious illegitimacy
petitioner, respectively. a situation may arise where proceedings before a general court of
that the presentation of the petition under Art. 95 para. 2
Constitution were suspended. This would occur if the petitioner later
a situation where he would be deprived of the possibility to exercise their rights and defend their
fundamental rights and freedoms. This situation is in its previous decisions, the Constitutional Court dealt
legal structures under which in this case is considered
lis pendens for the apostate (cf. Judgment file. Nos. Pl. ÚS 5/05, no.
3 / 2006 Sb.). In this case, the Constitutional Court by its order of 5 September 2006
sp. Nos. Pl. US 43/05 and ref. No. Pl. US 56 / 05-41 of the proceedings
under file. Nos. Pl. US 43/05, ruled out for separate consideration
proposal petitioner leave to intervene in the proceedings sp. Nos. Pl.
US 43/05, the fact that this excluded the intervener (
original proposal sp. Nos. Pl. ÚS 53/05) joined the joint management proposal led
still under sp. Nos. Pl. US 56/05. At the same time as the identification of new
Fourth It is noted that the Constitutional Court during the proceedings conducted under file
. Nos. Pl. US 43/05, on 10 March 2006, 10 April 2006 and 4 September 2006
received requests JH, Ing. JN and Ing. J.Č..
Granting intervener status pursuant to § 63, respectively.
§ 76 paragraph. 3 of the Constitutional Court, in connection with the application of the provisions of §
183i through § 183n Com. Act., the transfer of the securities of
Their ownership to the ownership of shareholders who satisfy the conditions set out in §
183i. 1 (hereinafter the "main shareholder").
On 22 June 2006, the Constitutional Court received a note
Municipal State Attorney's Office in Prague, in which it said that in the matter of the petitioner
Testing, Inc., an application for registration of transfer of shares pursuant to §
Commercial 183i. disciple. incorporation enter the proceedings in
meaning of § 35 para. 1 point. i) of the CPC.
These proposals were dealt with under this procedure, pointing out that the revocation proceedings
laws and other laws of the Constitutional Court Act, except
cases occurring due process according to § 35 para. 2
cited Act, to intervene knows.
Party before the Constitutional Court may be only one participant for whom the Law on the Constitutional Court indicates
(§ 28 para. 1-4).
Fifth The petitioner their arguments put forward in the draft sp. Nos. Pl.
US 53/05, which was based on the above resolution (sub 3)
connected to a joint discussion with the proposal sp. Nos. Pl. US 56/05 and continues to be held under
sp. Nos. Pl. US 56/05. This proposal was, however, during the proceedings (whether under
sp. Nos. Pl. US 43/05 and Pl. US 56/05) further supplemented by other
administration along with other evidence in the form of articles from professional journals ,
examples of so-called foreign regulations. squeeze-out
opinion of the Commission for securities and the like. Arguments have been supplemented in this way
following submission dated January 5, 2006, April 18, 2006 and September 27 | ||, 2006. Finally, the petitioner's previous proposals and arguments summarized and
added in the filing dated February 28, 2007. This filing was the last
therefore taken as a basis for the summary and arrangement of its argument, while
was taken into account and the previous administration. The complaints, which are directed against the forced buyout
editing, can be arranged as follows:
A) the first group of defects petitioner filed a breach of the legislation
purchase securities, as contained in Directive
European Parliament and Council 2004/25 / EC Official Journal of the EU.
Special Edition 2004. Sec. 17, Vol. 002 (hereinafter 'the Thirteenth Directive');
B) the second group by the petitioner constitute defects, which are
conflict with the principles laid down in the Convention for the Protection of Human Rights and Fundamental Freedoms
(hereinafter the "European Convention");
C) the third group consists of defects contrary to the provisions of international agreements on investment protection
D) a fourth group of defects described the petitioner as a procedural defects;
E) the remaining group includes defects, which according to the petitioner
not fall into the group of first to fourth.
6th As regards objections contrary editing rights to purchase
with Community law, in particular, the petitioner claims:
A) incorrect assumption Art. 15 of the Thirteenth Directive as under the Directive
must meet two cumulative conditions - achieving at least 90% of the shares
, while at least 90% of the voting rights, not
only one of them;
B) that it is not regulated by law on the so-called minority. Sell-out, ie. The right
minority shareholder to ensure that its majority shareholder, bought shares
. In a previous filing petitioner pointed
that the right to purchase (ie. A squeeze-out) and the right to buy (ie. Sell-out)
are mutually complementary measures. Failure to implement the second institute
been in the Czech Republic is not justified and frustrating
result prescribed by the Directive. In this way the other side, ie. Shareholders
who owns 10% or less of the securities within the meaning of § 183i
paragraph. 1 Com. disciple.;
C) the Czech Republic at the time of adoption of the Thirteenth Directive should not adjust right
purchase of listed shares. Therefore unable to accept any modification
right to purchase these shares, which would not succeed takeover bid.
The basic rule is that the purchase may follow only after a takeover bid (§ 183a
Com. Code.). An exception is made only for those states that at the time of adoption of the Thirteenth Directive
such an adjustment has already had;
D), with the related non-implementation of the rules on assumption of regularity prices
after a voluntary takeover bid. The takeover bid, which has prevented
purchase is an important test of reasonableness price for the shares. If the takeover bid
never accepted, can be the consideration for the shares
reasonable value of the shares;
E) it builds insecurity conditions of Article. 15 paragraph. 5 Thirteenth Directive
- Guaranteeing fair prices. That, however, is determined by the principal shareholder and
substantiated expert opinion from an expert selected and paid
major shareholder. The valuation is always biased. The law gives no
grasp the appraisal criteria beyond the concepts of "reasonableness" and "justice"
so the amount depends on the goodwill of experts. The petitioner pointed out here
different evaluations that differ by several hundred percent.
7th Editing is also right to purchase by the petitioner in breach of the European Convention
. Such defects in the regulation included:
A) conflict with the principle of legality, which requires accuracy, clarity and predictability
legislation (with reference to Judgment file. Nos. Pl. US 44/03
April 5, 2005, Collection of Decisions Constitutional court volume 37
judgment no. 73 promulgated under no. 249/2005 Coll.), which § 183i Com. disciple.
Not met. In doing so, this provision contains only one element
uncertainty, but many - vaguely adjusted length of the period for convening the general meeting
, an unclear definition of the type of procedure and the required statement of claim (
to determine the performance), unclear treatment termination rights respectively.
limitation on the right to review consideration in § 183k paragraph. 2 and par. 3 Com. disciple. (
With reference to an opinion in Appendix I. Štenglová 10th ed. Comments
Commercial Code published by CH Beck, p. 88), unclear circuit
parties under § 183k Com. Act., unclear responsibilities bearer
give consideration unclear rules for the decisive day for the award
amount of consideration pursuant to § 61 paragraph. 2 Com. disciple. compared to the practice
major shareholders and the Czech National Bank, ambiguity regarding
possibility of other shareholders to proceed under § 183k paragraph. 5 Com.
Act., Ambiguity rules for returning to its original state when the court will rule
decision of the general meeting.
Unclear, according to the petitioner's fundamental attributes of compensation for the shares, since the terms
"reasonableness" and "equity consideration" are subjective. All elements
uncertainties same time works in favor of the majority shareholder when
clearly described how to acquire the shares. The procedure for protecting the rights of minority shareholders
described vaguely or missing. Since the courts while their
protection can not be expected because of exaggerated formalism of general justice
(Holländer, P .: The constitutional argument. Praha. Linde 2003, p. 77);
B) conflict with the requirement of public interest in modifying the right to purchase.
It is set at the right of purchase in case of a public company
carried out after a takeover bid, as it flows from the underlying documents
European Communities. Czech legislators, however, made no public interest justification
in cases modified beyond
Thirteenth Directive (purchase of unlisted shares and purchase of listed shares
conducted outside the framework of the takeover bid). The explanatory memorandum to the draft
D. deputies there, he merely referred to the Thirteenth Directive. In the literature
reason to get rid of ineffective joint stock company costs
at the General Meeting is misleading and irrelevant. According to the press also
companies that have implemented buying shares again considering a primary
C) lack of options previously (prior to the transfer of ownership of the shares
) to review the legality of the procedure from the implementation of the rights
purchase. In jurisdictions that have rights as a precondition transfer
incorporation (such as Germany, Austria), there is a possibility to review the correctness of the procedure
company - eg. Whether the main shareholder
indeed sufficient number of shares that is it satisfied the proper
convening a general meeting, fulfilling the conditions for the right to purchase, whether it is an abuse of rights, etc.
. In this respect, according to the petitioner Czech Republic
exception (see § 131 Com. Code.).
8th Forced purchase of shares by the petitioner in violation of international
agreements on investment protection, as in corporations are also
foreign entity. Here, the petitioner claims:
A) measures to deprivation of property rights must be reviewed by a court
both in relation to investment and in terms of the accuracy of valuation.
The registration proceedings, the court can not examine (§ 200d os
l.) And in the invalidity proceedings of the General Meeting is an obstacle to efficient review
§ 131 of the Commercial Code. disciple.;
B) uncertainty, which leads in practice to determine the mass of the consideration
on a date other than that for which the expropriation was announced. Compensation should
Under these agreements amount to the market value of the expropriated investment
immediately before the expropriation was announced.
In all known cases, the purchase of shares but value was determined for the so-called.
Decisive day for several months before the decision was announced.
This also results contrary to § 61 paragraph. 2 Com. disciple.;
C) the absence of capitalizing consideration from the date of expropriation until the date of payment
9th Defects procedural petitioner sees
especially in not respecting the principle of equality of arms, the protection of the weak and access to
court. For specific deficiencies labeled:
A) the absence of assurances that action, leading to displacement, will
actually reviewed by a court in an adversarial and public trial. The registration proceedings
nothing not reviewed and does not expropriated shareholder
party. Additionally, with the help of § 131 of the Commercial Code. disciple. Always looking for a reason
to stop the proceedings or dismiss the action. Even if the action was
after minority shareholder rights, restitution original state
may not occur if there is a fait accompli, created
registration in the commercial register. The court, which will decide a matter
will be created based on the state and because of the principle of legal certainty and
protection of the rights of third parties will tend proposal to review the resolutions of the General Meeting
refuse. Therefore, there should be a review before
transition of ownership rights, as in many other countries, even though it is
tied to the activity of minority shareholders (the Netherlands, Great Britain, Sweden
), or does it depend on the court's discretion (Germany, Austria). In the Czech Republic
this review is excluded under § 131 paragraph. 3 Com. disciple. Furthermore
not under the review of the consideration
respected the principle of protecting the weaker party. This procedure is flawed, that violate
principle of proportionality;
B) failure to respect the principle of equality of arms when it reassesses the
consideration. Minority shareholder pursuant to § 183k Com. disciple.
gets the word only when he has opposed obstacles such as expert advice, opinion
Czech National Bank and registration in the Commercial Register without
yet allowed to participate or be a party;
C) significant information deficit minority shareholders regarding the status
company's assets and the likely future financial results of the evaluation
which usually relies. This results in inequality of arms in
review proceedings when the rule is that the majority of reports are based on documents
Board of Directors;
D) as a fundamental flaw sees the principle that the court is in the review process
dominated many suggestions plaintiff. It has little information to enable him
short time quantifying the correct amount of consideration. In connection with the allocation
costs borne by the person who succumbs to the dispute, this is another obstacle
for exercising his rights. E.g. in Germany in the so-called. Spruchverfahren
shareholder for such quantification of the amount of claim is not forced;
E) does not pass the burden of proof because, unlike foreign regulations
(Germany, Austria), the principal shareholder;
F) costs are borne by a minority shareholder, which is another
hurdle for claiming in court. Adjusting costs and has
deterrent effect. In the original proposal, the view was
petitioner further elaborated in the sense that, against his will expropriated shareholder, according to some commentators
Commercial Code has been forced to bear the costs
review proceedings while paying the higher court fee, the more
a major shareholder in collaboration with an expert in determining the amount of consideration
"cheats". Furthermore, if the unfairness of the consideration
removed as a plea of action for nullification of the resolution of the General Meeting
(§ 183k paragraph. 5 Com. Code.) Must be action for annulment General Meeting
replaced proceedings that take place in similar arrangements, respectively.
proceedings in which the position of the expropriation of the person will not deteriorate further. Otherwise it is not possible to talk
that the review procedure is a procedure within the meaning
adequacy of legal protection replaces the invalidity proceedings
resolution of the General Meeting. Here, the petitioner pointed to the example of the German rules, according to which costs
called. Přezkoumacího management (Spruchverfahren) carries
fundamentally main shareholder;
G) the absence of any effective protection standing outside shareholders, if not regulated
The joint representative and not adjusted their
Informed about the outcome of the procedure
H) the need to sue abroad, where the main shareholder is a foreign
person. This is an additional burden for the majority and minority shareholders
10th Among the remaining defects editing rights to purchase the petitioner stated:
A) the fact that it is a private relationship, which should be respected
principle of formal equality. Nevertheless, the law gives the right of the main shareholders
unilaterally modify relationships - about the amount of consideration
decided expert hired and paid by the major shareholder, minority shareholders
get a word in adversarial proceedings after the all-important
decided by the General Meeting and examined the notary, expert Czech national Bank.
Dialogue correct amount of benefits that occurs between the principal shareholder and it
hired expert and public authorities. Only after getting word
B) of § 183i Com. Act., which does not allow for the effective exercise of the right to supplement
consideration. The existing legislation does not squeezed
shareholders the opportunity to either learn about litigation. In the original draft
petitioner stated in this regard that the civil proceedings, although
public, but court decisions in commercial matters are normally not published
(except for decisions in matters of unfair competition). If the right
incurred pursuant to § 183k paragraph. 3 Com. disciple.
should be applied, they would have a different amount of consideration other beneficiaries
first to know. Because the law is no mechanism for the publication of decisions
does it for most beneficiaries only
formal right which can not be done effectively;
C) disregard for the rights of mortgage lenders who
Commercial Code does not give the right to the procedure under § 183k paragraph. 3 Com. disciple.
11th Legislation and motivate the principal shareholder to fair
behavior because for conduct contrary to good morals
is not penalized. His only risk is that you might have to pay
several shareholders who have sufficient resources to litigation by
review of consideration before formalistically minded judges.
Not respected the legality of the requirement or the requirement of proportionality in
transfer of shares when proceedings to review the legality of measures
transition, both when setting and reviewing the consideration.
12th As a new argument, the petitioner finally completed its draft of
objection that the proposal of the deputy D. establishing the right to purchase
got into our legislation was designated as an amendment, although in light of the Constitutional Court
sp. Nos. Pl. US 77/06, with regard to the content and purpose
original bill, it could be. The content and purpose of the two proposals differ dramatically
(modification of the commercial register and the right to purchase).
Amendment D. deputies while no additions
change or deletion of a provision proposed by Deputy Pospíšil.
Editing crucial issues that was made through a limpet.
13th For all the foregoing reasons, the petitioner requests the annulment adjustments
right to buy when the effect of major defects specified sub 6-11, and
defects in the legislative process, legislation is unconstitutional. Here it is necessary
noted that the final submission, which should summarize the arguments of the petitioner
, does not specifically single-articulated criticism
unconstitutionality of the contested legislation Law Institute forced buyout.
It was therefore necessary to take account of the petitioner's original proposal under sp.
Brand. Pl. US 53/05, where it was argued that such legislation contravenes Article
. 1 of the Constitution and Art. 4, paragraph. 4 and Art. 11 par. 4
Fundamental Rights and Freedoms (the "Charter" ).
14th The original proposal was still beyond the summary contained the following
constitutional arguments. Legislation purchase rights contained in § 183i through § 183n
Com. disciple. According to the petitioner should represent
procedure referred to in Art. 11 par. 4; It is a form of expropriation
withdrawal of shares of existing owners in favor of another entity. The fact that
similar cases, withdrawal of shares for compensation is an intervention into
property rights, has held a number of European courts.
Petitioner in this regard noted that the legislation does not comply with the right to purchase
conditions laid down in Article. 11 paragraph. 4, Art. 4 par. 4 and Art. 1
Constitution. This is justified by the fact that the question called. Repurchase of securities against
Will of their owners, especially the question of compensation for expropriation, is
modified in a way that makes it virtually impossible for investors vyvlastňovaným
effective defense against abuse of rights, and thus puts them in a completely
unequal status (see below). These investors do not have sufficient time
to make to prepare for the General Assembly and to be able
decide the question whether the amount of consideration determined in the correct amount.
Investors also are not protected against abuse of rights within
convening the General Meeting, the process of determining the amount of compensation and reimbursement
allows arbitrariness by the main shareholder and establishes inequality
participants of legal relations, the process of reviewing the correctness or
adequacy of the consideration is not governed by clear and understandable
rules, registration procedure did not provide them protection.
15th Even if this was not an expropriation, the expropriating state
act occurs. Without registration in the commercial register, without an act of the state to transfer ownership
can not occur. According to the petitioner cited
decision of the European Court of Human Rights, however, expropriation
acts (eg. James and others against the United Kingdom from 1986), because it is
subsumed under the second rule of Art. 1 second sentence of the Additional Protocol
to the European Convention (deprivation of property). Therefore, editing rights
purchase must be applied far more decisions and more than James
decision on Bramelid because the role of the state (registration in the commercial register
) in this case is far more significant. Additionally
label is not as important as the role of the state. It is absurd that in the case
withdrawing assets in favor of the state (expropriation)
investor deserves greater protection than in the case of withdrawal of the benefit of another private investor
. This difference may yet prove to new provisions of the Act no.
184/2006 Coll., On the withdrawal or restriction of ownership rights to the land or to build
(Expropriation Act). Even if it is accepted that the right to
shares does not enjoy the same protection as property to other things,
does not mean that the expropriation of shareholders pursuant to § 183i et seq. Com.
Act. They should have almost no rights and no.
16th Regarding the deadline for convening the general meeting, the current
comments on this issue considerable controversy over whether it is possible
shorten the period between the date of notification and the date of the General Meeting for a term
less than 30 days. One view is necessary in the present case
apply the provisions of § 181 par. 1 and Sec. 2 Com. disciple. It can therefore
shortened statutory period of 30 days between the date of the notice and the date of the General Meeting
, mentioned in § 184 paragraph. 4 Com. Act., for 15 days. The provisions of §
181 par. 1 of the Commercial Code. Act., which allows convene a general meeting within a shorter period
, however, does not cover cases which are provided for in § 183i et seq.
Com. Act., for the following reasons:
) Of § 183i. 1 Com. disciple. speaks explicitly of "
General Meeting", while § 181 of the Commercial Code. disciple. o "Extraordinary General Meeting". On
procedure pursuant to § 183i Com. disciple. therefore not eligible for the provisions of § 181
B) another reason for this is the nature of the provisions of § 181 of the Commercial Code. Act., which is intended
protect minorities, and not to the majority shareholders
life easier (here referred to the opinion Havel B-Doležil T .: And again he
squeeze-out: Reflections interpretation of § 183i et seq. of the Commercial Code, legal
Perspectives, vol. 2005, no. 17, pp. 634-635). The provisions of § 181 of the Commercial Code. disciple.
has also speed up the procedure for cases where it is necessary to control the company
quickly intervene or when it is necessary to quickly obtain information from
Directors. That is not the case § 183i Com. Act., where
neither the company nor the principal shareholder in no time constraints and the need
contrary to allow enough time vyvlastňovaným shareholders;
C) further nowhere in the provisions relating to the purchase of securities
is not dependent on the provisions of § 181 of the Commercial Code. disciple. The provisions of § 183j of the Commercial Code. disciple.
is a lex specialis to § 184 paragraph. 4 Com. disciple. Just as is the provision §
181 Com. disciple. lex specialis in relation to § 184 paragraph. 4 Com.
Act. From the above it is clear that both the provisions of § 181 of the Commercial Code. Act., and
provisions of § 183j of the Commercial Code. disciple. are special provisions in relation to
general provision of § 184 paragraph. 4 Com. disciple. Among the provisions of § 181 and
§ 183i et seq. Com. disciple. We can not conclude yet no relationship specialties;
D) are minority shareholders in a compulsory buyout of shares in the position
Expropriated persons who were being removed against their will, their
ownership of shares. The requirement of a sufficiently long period to prepare
At a general meeting would not in this case should be emphasized, and
not suppressed in favor vyvlastňujícího main shareholder.
According to the petitioner, there are views of eminent experts who are completely opposite
. This proves that the legislation in this regard is unclear
vague and confusing and does not meet the requirements set for the rule of law in
Art. 1 of the Constitution.
17th The petitioner also criticized the determination of the consideration.
Semblance of objectivity in determining the amount of consideration is the legislature created
involvement of experts in the process of determining its amount. The essence of every modern society
law is a voluntary transfer of ownership.
Involuntary transfer of ownership is an exception for which there must always be clear and strict rules
. That adjustment in accordance with § 183i and following of the Commercial Code. disciple.
Not met. Contractual arrangements price is replaced
unilateral determination "purchase price" (consideration here), the main shareholder. To be
approval of either Party involuntary, respectively. unwanted transaction with the amount
rates for converting replaced by a decision of the other party, then
substantiate the accuracy and objectivity of the expert opinion must meet strict criteria
objectivity, both in terms of selecting an expert, implementation
expert opinion, and in terms of its possible review. In cases
squeeze (squeeze-out), however, the expert for this purpose determines
major shareholder himself, while experts also determined the amount of remuneration (§
183j paragraph. 6 Com. Code.). This of course must have a bearing on the question
dependence or independence of the valuer. It is no longer guaranteed that
major shareholder must respect any dissenting opinion of an expert. Expert
"proof" price is for this reason a purely formal nature without
practical importance for the protection of investors and expropriated
does not constitute protection of the rights of persons expropriated.
Any objection that the expert has responsibility for faulty judgment and that
responsible for damage done here with regard to the values that are at stake
18th Payment of the consideration for the purchase is not sufficiently secured.
Original provisions in this respect (§ 183 meters paragraph. 5 Com. Code.)
Was repealed by the Act on Financial Conglomerates. This Act introduced the obligation
composition consideration amounts to an account at a bank or brokerage firm
. Even this new element sufficient to ensure payment of consideration established
main shareholder. The term bank can understand
any bank, including a bank operating in the jurisdiction unavailable for
Czech shareholders. In addition, an amendment made by the Act on Financial Conglomerates
, transfers the obligation to provide compensation of persons
main shareholder (see latest version of § 183 meters paragraph. 3 and par. 4 of the Commercial Code.
Act. Implementing the Act on Financial Conglomerates) the shopkeeper
securities or bank. This creates further legal uncertainty about
who actually bears the obligation to "give consideration".
Logically it should be the main shareholder. According to the current wording of § 183 meters paragraph. 3 and
paragraph. 4 Com. disciple. "Provide the consideration securities broker or bank
" So if this obligation should the latter being
entities. It is patently unfair to the beneficiaries, which is
removed from the base (property) right, they are exposed
legislature and the high degree of uncertainty regarding the above matters.
It is not reasonable that such a significant contradictions Act and its ambiguity in situations where
is removed from the basic right to peaceful enjoyment of possessions
hundreds of thousands of citizens, to solve the case law.
19th Defects review proceedings under § 183k Com. disciple. petitioner also includes
especially unclear definition of the circle of participants (sub a), the type of procedure (sub
b) the claim (sub c) and termination of the right to invoke the unfairness
A) The text of the Commercial Code is not apparent radius of the parties
review. Logically it follows that the bidder should be
petitioner (one of the minority shareholders) and major shareholder.
But it is nowhere explicitly expressed and contrary to § 183k paragraph.
3 Com. disciple. It states that "judgment is the principal shareholder and the company
binding as to the foundation -" Under this provision, therefore,
Addressee of the decision the court and society. Should be a party to the proceedings
a major shareholder, should this sentence make sense.
It is not clear what role the company has played proceedings.
For that, a new formulation of § 183 meters paragraph. 3 and par. 4 of the Commercial Code. disciple. (
Implementing the Act on Financial Conglomerates), according to which the holder of the obligation to provide
consideration is a securities dealer or a bank;
B) of § 183k paragraph. 1 Com. disciple. In his text question kinds
management addressed. The words "may - ask a court to review the adequacy of the consideration
" can not conclude whether it is a management issue or dispute. If
would be used analogy to § 220p paragraph. 4 Com. Act., which is also regulated
'right to request a review of the adequacy of the consideration "
in connection with the transfer of assets, it should be noted that neither
this provision is unclear. Olomouc High Court in its decision ref. No.
8 Cmo 171 / 2005-731 stated that the procedure for reviewing
reasonable settlement proceeding is indisputable. Conversely, the Prague High Court considers
it is a management issue. The petitioner is of the opinion that such
serious question, such as determining the type of proceedings in matters where citizens
removed from them against their will base (property) right, you can not leave
on the jurisprudence, but that is need to do it in exactly the sense
requirements for the rule of law (Art. 1 of the Constitution);
C) the text of § 183k paragraph. 1 Com. disciple. it is not clear whether the statement should read
on performance to determine or otherwise. The provisions of § 183k paragraph.
3 Com. disciple. speaks cryptically about "stipulation of a different consideration amount"
provisions of paragraph 4 speaks of "the determination of inadequacy."
Law are therefore not give a clear answer to the question of the type of claim.
Problem can not be removed, even if used in analogy with § 220p Com. disciple.
Neither the text of § 220p paragraph. 4 Com. Act. ie. the words "right to request a review of the amount
cash settlement" is also not clear what type
proposal goes (to the transaction, to determine or another). Also, in practice, can be found
various interpretations which the appellant demonstrates the example of opinion in literature, J.
when Dedic and other states in the Commercial Code, Commentary, Polygon
2002 II. part, p. 2865, that an action for performance, whereas § 17 para. 1
Law no. 627/2004. says action to establish. It follows that if
§ 183i Com. disciple. it is an indefinite legislation that
meets the criteria of accuracy, certainty and predictability
defined by the Constitutional Court in the case file. Nos. Pl. US 44/03. The same is therefore true of the provisions of § 183k
D) of § 183k paragraph. 2 Com. disciple. preclusion law establishes
invoke the unfairness of the consideration. The provisions of § 183k paragraph. 3
last sentence on the other side of the Commercial Code. disciple. fix the beginning of the limitation period
to all eligible persons, regardless of whether they were parties
management. The term "any authorized person" is not defined and it is necessary
apparently interpreted as a set of owners of the securities.
If it were intended only persons who filed a subsequent or simultaneous
review proposals, then the words "regardless of whether
parties were" meaningless. The resultant effect of both
cited provisions is therefore a) either absurd state that the right of first
ceases to exist (because the authorized person fails to file a petition for review and
consequently not run any proceedings to which it was a party), and then, what
lapse starts probably promlčovat from the moment the decision on the proposal
issued another beneficiary, b) or they are two different
rights, namely the right to review (which will expire if none
authorized person fails to file a petition for review) and the right to supplement
(which expires apparently the general limitation period).
The absurdity of that state pointed out by the authors Comments to the Commercial Code
Štenglová I., et al. (Supplement to the 10th edition Comments CH Beck, p. 88
20th Under the provisions of Art. 4 par. 4, when applying provisions of
limits of fundamental rights and freedoms must be preserved
nature and meaning of these rights. This means, inter alia, that the legislation associated with limitations
fundamental rights (here the right to peaceful enjoyment of possessions)
must meet high requirements for brightness, clarity and predictability (see
Decision of the Constitutional Court file. Nos. Pl. US 44/03, according to which the legal provisions
democratic rule of law must also satisfy the conditions
sufficient accuracy, certainty and predictability).
This rule must pay twice as much if it is a hit,
, resulting in complete deprivation of property rights. Besides, it is necessary
to persons whose fundamental right is affected
been placed a disproportionate burden in the proceedings, which has lead to a review
compensation for expropriation. In this regard, the petitioner stated arguments
which, in his opinion, these deficiencies represent. It is therefore wrong to leave
eliminating inaccuracies and ambiguities Act jurisprudence
courts if they are clustered at a single institution in such a large extent
cases where the prejudice to the fundamental rights of citizens, due to || | constitutional principle laid down in Art. 4 par. 4.
Legislation squeeze-out of minority shareholders does not satisfy the requirement
proportionality between the means employed to limit (withdrawal)
property rights and the aim pursued. It is also not at all
preserving the essence and meaning of the Basic Law (Art. 4 par. 4). Some individual
contradictions or ambiguities in the current legislation probably would be possible to remove
constitutional interpretation (eg maybe. Control type or kind
proposal). A wide range of uncertainties, however, neither constitutional interpretation
not be deleted. Even if it were possible, it is unfair to burden
removal and other important issues of law and to the extent
in which they appear in § 183i through 183n Com. Act., carrying one
whose rights would be contrary legislator within the meaning of Article. paragraph 4. 4
Charter spared. The petitioner believes that it is unacceptable and is
inconsistent with Art. 4 par. 4, so that all the risks associated with
legislation right to purchase participating securities
carrying one whose rights had be when adopting provisions concerning limitations on fundamental rights
investigation, ie. a minority investor.
21st Lastly petitioner's objections regarding the role
Czech National Bank (formerly the Securities Commission -
petitioner, this designation does not change). In his opinion, the amendment regulation of the right to purchase
Act on Financial Conglomerates especially not remove the objection that
no objective determination of the consideration (which would be able to objectively
replace the process of negotiating the purchase price), and from these | || reasons:
A) of the Securities Commission itself has publicly declared that it is unable
assess the adequacy of the settlement, especially for companies with
unlisted shares (see press statement CSC);
B) the procedure Securities Commission applies the amendment made by
Act no. 377/2005 Coll. fiction adequately specified in § 183e
Com. disciple. Under that provision: If the Securities Commission Securities
not send the petitioner within the period specified in paragraph 8 (ie.
Within a period of eight days - extended to 15 working days) of their opinion on the content
takeover bid or the this period shall not grant
required consent to the acquisition of the securities of the offeree company or a takeover bid
prohibit them, the takeover bid agrees.
It is not a measure that would issue an objective determination of the amount of consideration
dealt with effectively because the review by the Securities Commission in a number of cases
(especially for companies with unlisted shares)
may never occur;
C) Commentary to the Commercial Code - a supplement to the 10th edition, CH Beck
Prague, 2005, p. 83 states that for unquoted shares is not necessary to have
preliminary approval of the Securities Commission. So for these securities
would therefore not prevent an objective assessment of the consideration.
Even if, however, the Securities Commission had the power to supervise the amount
consideration for unlisted securities is not equipped at all
no powers to require companies with unlisted shares
any information on which it could review exercise .
22nd As regards the petitioner's objections to the adjustment of the registration proceedings,
settlement, the Constitutional Court ruled the proceedings conducted under file. Ref.
Pl. US 43/05, whose conclusion is to be referred.
Observations of the parties
23rd With regard to the conduct of proceedings in the present case, the Constitutional Court
Requested the parties' observations on the petition to annul § 183i through § 183n
Com. disciple. twice. The first time was in the context of proceedings under file.
Brand. Pl. US 43/05, then, due to the gradual replenishment argument
petitioner has requested from participants further observations.
24th Chairman of the Chamber of Deputies of the Czech Parliament at
statement dated 16 November 2005 described the procedure for the adoption of Act no. 216/2005 Coll
. and he stated that the legislature acted in discussing
under the Act in accordance with legal procedure, and a vote
expressed his belief that the law is not in conflict with the constitutional order of the Czech Republic
. At the same time put the text of the amendment
deputy Dolezal, amendments - printing 566/4, approved the text of the Act
- printing 566/5, verbatim record of the third reading of 9 February 2004
Resolution Chamber of Deputies No. . 1457 and no. 1626
25th Chairman of the Senate of the Czech Republic in its statement dated 16 November 2005
described the procedure for consideration of the bill by the Senate of the Parliament of the Czech Republic
. As regards the contested provisions of § 183i through §
183n Com. Act., pointed out that many of the alleged deficiencies
has been deleted in the ninth section of the Act no. 377/2005 Coll., on the supplementary supervision
over banks, credit unions, institutions
electronic money insurers and securities dealers in
financial conglomerates and amending certain other laws (Act on financial Conglomerates
). Here he pointed out the role of the Securities Commission
Securities (now the Czech National Bank), which should
behalf of the state to guarantee minority shareholders a fair compensation for their shares.
Likewise, consideration is now handing over cash provided
funds to pay the brokerage house or bank. To
not respecting the principle of proportionality stated that
brokerage firm or bank is required to provide beneficiaries with consideration
without undue delay after the registration of ownership rights
asset account in the relevant securities register.
Simultaneously pointed to a number of uncertainties that regulation - Trade register no guarantee
legality of the practice of displacement, unclear circle of parties to review
management, undefined type of procedure (issue - not disputed), the type of complaint
statement of claim unfair allocation the cost of the investigation.
These questions, the Senate of the Parliament of the Czech Republic when discussing amendments to the Commercial Code
dealt with in detail because it was based on the fact that
modifying an interference in the property rights of minority shareholders, and
thus a violation of rights guaranteed by the Charter . He also stressed that
Thirteenth Directive, namely the right to purchase permits, but requires in Article. 16 so-called law.
Sell-out, which is a mirror institute against the law to purchase.
Further commented on the contested provisions of § 200d paragraph. 3 of the CPC.
26th In the opinion of the Securities and Exchange Commission has pointed to foreign
modifications and further Thirteenth Directive, which allows you to decide on
displace only in the event that such a decision the principal shareholder
preceding the takeover bid and the Member States to ensure that owners | || remaining securities to fair value.
Legal nature of the resolutions of the General Meeting is disputed, the Securities Commission is inclined to the view that the expropriation
not, but it is a noticeable interference with the rights of minority shareholders
, but that still might not be unconstitutional, děje- If so
with reference to public values, excluding the arbitrariness of the legislature in designing
such legislation, and if it was respected the principle of proportionality
(with reference to judgment no. 181/2005 Coll.).
The Commission agreed with the petitioner regarding his arguments on the request
reasonable fair compensation (full). This must occur at
procedure expert who has first perform strategic analysis
company sales analysis, strengths and weaknesses (SWOT analysis) and
financial analysis. Only then connoisseur can choose the most appropriate method of valuation
, which is usually discounted cash flow method (DCF -
discounted cash flow) and determine the present value of the company.
The Commission considers that, given the uniqueness of each award-winning company can not be
rules for the creation of expert reports take the form of a binding legal
regulation. Rules § 183i. 5 Com. disciple. considers the
Context Securities Commission considered consistent with the requirement for a full refund
. Likewise he did not agree with the petitioner regarding
addiction expert at the main shareholders. He pointed out to her prepared
methodology for determining the appropriate price in takeover bids.
This methodology is also applicable for the purposes of displacement. Commission sees the problem in a short period of time
according to § 183i. 5 Com. Act., which can only examine the appropriateness and reasonableness
expert methods used, accuracy of calculations and maybe
distortion and manipulation. In the Czech Republic, given the illiquid market may
price on the regulated market significantly deviate from reasonable
value; in unlisted companies can not be the criterion of market prices
apply at all. The problem is also a matter of interest and lack
determine the point at which the price is to be determined by consideration. Regarding procedural regulation
right to purchase, include the conditions under which it is possible, according
opinion Securities Commission, to assess the constitutionality of displacement,
option to go to court, clearly defined management policies, solve | || information deficit on the part of minority shareholders, ensuring
position of minority shareholders who have not returned to the court and finish
costs so that it is not an obstacle for bringing an action.
New facts and additional observations of the parties
27th After having been separately the issue of the right to purchase up
proceedings conducted under file. Nos. Pl. US 56/05, has completed the initial filing in a row
points and further extended. Rapporteur therefore requested to complete
original statements that the parties had an opportunity to comment
opinion on the full arguments of the petitioner. At the same time
sought the opinion of the Czech National Bank, which in the meantime has taken
tasks that have not yet fulfilled the Securities Commission, pursuant to the Act on Financial Conglomerates
28th Chairman of the Chamber of Deputies of the Parliament of the Czech Republic Ing.
Miroslav Vlcek mainly stated that the legislative process is a participant
already stated (see point 24). Provisions governing the right to purchase
participating securities were to Act no. 513/1991 Coll.
included an amendment by Act no. 216/2005 Coll., on the basis
parliamentary proposal at second reading. Another amendment
those provisions were contained in the Act no. 377/2005 Coll., On Financial Conglomerates.
Amendments were implemented in the second reading and a justification by
been presented to reflect the provisions of the Directive of the European
Parliament and Council Directive 2004/25 / EC of 21 April 2004 on takeover bids. The petitioner
zpochybněnému method of presentation of the amendments referred
proposals for comment. Regarding the alleged defects in the legislation forced
purchase, ie. The deadline for convening the general meeting, no questioning the legality of the transaction
General Meeting's resolution in the Commercial Register in relation to § 220d Civil Procedure. (Correctly be §
200d Civil procedure.), the impossibility of determining the amount of consideration in an objective manner
, uncertainties wearer's obligation to pay compensation
minority shareholder, defects provisions of the review proceedings, preclusion
rights to invoke the unfairness of the consideration or unfair
cost allocation review procedure, generally stated that the aforementioned legal
adjustments were approved in the Chamber of Deputies of the Parliament of the Czech Republic
with the intention to simplify the shareholder structure
trading company and enable more effective decision-making in social matters
. The proposed changes should simultaneously address many
practical instances where minority shareholders purposefully abused, and it
up šikanózním way exercise their rights at the expense of the interests
business community as a whole and its development. All this despite the fact that ownership of a majority stake
system carries greater responsibility for the administration and management
but also greater economic risk that a major shareholder in the minority compared
undergoes. He stated that this opinion is in favor
in their interpretations of a number of leading Czech experts in this field.
Minority shareholders are a group of companions, whose influence on the running
company's main shareholder, fulfilling the conditions for the application
right to purchase securities is negligible. The petitioner therefore the amendment
felt the squeeze-out for standard balance of rights and institute
Responsibility majority shareholder, minority shareholders when compared
corporate governance and additionally argued
need to respond in a timely manner to the provisions of European directives, already in force
Directive of the European Parliament and Council Directive 2004/25 / EC of 21 April 2004 on takeover bids
. This Directive lays down the obligation for Member States
ensure that the offeror (ie. A squeeze-out) held (or will hold
) at least 90% of the capital carrying voting rights and
90% of the voting rights of the target company. Due to adjust the number of votes
(according to the voting rights), contained in § 180 paragraph. 2 Com. Act., should
votes correspond to the share capital of the company.
Conditions for the offeror are de facto
cumulatively met - although it at first glance, according to the formal wording of § 183i
paragraph. 1 Com. disciple. rather positive. Again he stated that the legislature
when discussing this adjustment has acted in the belief that the law is
in accordance with its Constitution and international treaties by which the Czech Republic is bound
29th Chairman of the Czech Senate, MD. Premysl Sobotka
in supplemental opinion of 18 September 2007 commented on the new facts
which gradually complemented by the proposal. He noted that in terms of the so-called
objection. Limpet, the referenced Constitutional Court judgment. Nos. Pl.
US 77/06 states that "limpet", is characterized as a process, "a technique in which
amendment of the Act attaches finish completely different
Act of unconnected legislative pattern". The contested statute
rather a so-called. "Legislative rider" as a supplement Deputy
Dolezal does not implement the Bill to the new law, but only
stray from the narrow space defined for amendments
legislative proposal. He stressed the fundamental importance of this issue
assessment for future law-making. The other objections that, due to the fact that
joint stock company is a capital company, where
rights and duties of members are incorporated into individual shares is
natural that the owner holding the majority of shares, has even bigger rights if his
these rights are limited by law. Restrictions contained in the Commercial Code
However, applicants deemed insufficient. Jimi
alleged failure to respect "the principle of equality of arms" may be considered controversial, because his
full respect would be against the spirit of the capital
companies and lead to unnecessary egalitarianism in business
companies. As for the objection that the proceedings before the registration
court will not review anything, it held that this principle since
amendment to the Commercial Code, Act no. 216/2005 Coll.
built all entries in the commercial register. The nullity of resolutions of the General Meeting
pronounced independent court that § 131 of the Commercial Code. disciple. applies.
Law clearly and unambiguously defines the cases where a court annulment
been expressed. Therefore, the petitioners did not agree with the objections.
Also recalled the decision of the Federal Constitutional Court in May 2007, which came to
conclusion that squeezing out minority shareholders is not a violation of the right to own property
if they are reasonably balanced the interests of minority and majority shareholders
, especially if
vytěsňovaným shareholders will receive reasonable compensation for their shares and afforded effective legal protection
30th The Czech National Bank Governor commented doc. Ing. Zdenek Tuma, Ph.D.
. In particular that the adjustment displacement in the Commercial Code
not be considered as an implementation. In the opinion of the Czech National Bank
alone sub-divisions of current Czech legislation with European law
justify a finding of unconstitutionality of the whole legislation crowding,
unless found to be inconsistent with the constitutional order for another reason, too
if it was based on a decision of the European Court of Justice for a preliminary ruling
under Art. 234 of the Treaty establishing the European Community (hereinafter referred
"SES"), some of the existing provisions governing the right to purchase, for
conflict with European law Cancelled. Valid legislation can not be regarded as preliminary
transpose the Thirteenth Directive, which would moreover
was inconsistent with Community law, for the following reasons:
A) legislation to purchase participating securities received on the basis
parliamentary proposal was not intended to implement the Thirteenth
Directive, and therefore can not speak of an implementation adjusting squeeze in
B) existing legislation displacement moves within SES (Art. 10
paragraph. 2, Art. 249), as interpreted by the European Court of Justice (judgment in the case
Wallonie v Région Wallonne, C - 129/96 Inter-Environnement Wallonie
ASBL v Région Wallonne  ECR. Rozh. I - 7411.1);
C) the right to a forced buy-out of securities in the Commercial Code
designed unlike the Thirteenth Directive and as a general
therefore falls to a wider range of cases than fixing her Art. 1. Directive applies only to
to squeeze out after a takeover bid quoted
participating securities and the provision of Art. 1, according to the Czech national Bank
only makes it clear that other national rules for the right to purchase participating securities
Thirteenth Directive are not affected. Here
he pointed to recital 24 of the preamble of the Thirteenth Directive, from which simultaneously
can not be concluded that the exemption only to states that at the time of adoption of the Thirteenth Directive
right to purchase participating securities
permit. Community dimension therefore have submitted objections
only in relation to expulsion, following the successful takeover bid by
listed companies, which is crucial for assessing
whether it is valid Czech legislation could seriously jeopardize || | objectives set Thirteenth Directive.
The conditions that must be satisfied for claiming a forced buyout
(alleged inconsistency with Art. 15 of the Thirteenth Directive)
governor of the Czech National Bank said that in practice such a case yet occurred.
Contradiction Czech legislation with the Thirteenth Directive, it must however be admitted, but
subject to what has been stated above under a) to c).
The objection that the right of squeeze-out is not associated with
right to purchase, at the request of a minority shareholder, said business
Code stipulates in § 183h offer to purchase, even if it is not, although
mix with the institute called the English term "sell-out".
Pointed also to prepare new legislation called. Additional takeover bid.
The objection that the principles of pricing in situations where after the takeover offer
reached the threshold for exercising the right to purchase
participating securities are not in accordance with the Thirteenth Directive
Czech National Bank Governor says that the current legislation is not
clearly in direct conflict with the Thirteenth Directive.
Pointed to the provisions of § 183i. 5 Com. disciple. and stressed that the Czech National Bank
always consider whether the amount of consideration
proportionate to the value of the securities and doubts into account the interests
owners of the securities. The Commercial Code therefore allows
interpretation, are frustrated or threatened
objectives pursued by the Thirteenth Directive. In addition, now the Czech National Bank
obligation to take into account the price of the takeover bid, which was preceded by a squeeze-out, which
for it arises from the obligation eurokonformního
interpretation of national law. In addition, he pointed to the upcoming amendment of § 183n paragraph. 1
Com. Act., where it should be expressly addressed this question on the basis of Article. 15
paragraph. 5 of the second paragraph of the Thirteenth Directive.
31st The Constitutional Court received unsolicited expressions Ochranný
association of small shareholders - OSMA (Amicus Curie Brief), which essentially contains
identical arguments, which the petitioner states, and it illustrates practical examples
. At the request of that document was placed on the file.
Formal prerequisites for consideration of the constitutionality of a legislative procedure
32nd On this basis, it was possible to proceed to assess whether the conditions
proceedings before the Constitutional Court. The proposal was submitted by a group of seventeen senators
, which is the minimum number required for the submission of such a proposal
. In accordance with the jurisprudence of the Constitutional Court (judgment no longer.
Nos. Pl. ÚS 1/92, Collection of Decisions of the Constitutional Court of Czechoslovakia, finding
no. 14) in this issue enough that this condition was satisfied
time of submission. The term of a senator (in this case
condition had to be met by all members of the group proposing) or other
way of ending the function (in this case under Article. 25 of the Constitution) has no effect on
evaluation of the circumstances, whether it is a authorized petitioner under § 64
Paragraph. 1 point. a) the Constitutional Court Act.
33rd With regard to the formulation of the proposal, the Constitutional Court first examined
clarifying questions, what is by design subject římzení.
The petitioner filed a petition to repeal "section of the Act, § 183i through § 183n Act no.
513/1991 Coll., The Commercial Code." Such provisions
terms of legislative technique whatsoever Commercial Code does not. However, from
submissions could be inferred that the proposal means
mentioned provisions of the Commercial Code, ie. Act no. 513/1991 Coll., As amended
Act no. 216/2005 Coll., Act No. . 377/2005 Coll., and finally (considering
in order summarizing the latest filing, even if not explicitly) in the wording
Act no. 57/2006 Coll. The text of the contested provisions of the Commercial Code, the following
"The right of squeeze-out
(1) A person who owns the company's participating securities,
a) the aggregate nominal value of at least
90% of its capital, or
b) which replace participating securities whose total nominal value
is at least 90% of the share capital or
c) with whom at least 90% of the voting rights in
company (hereinafter the "main shareholder")
is entitled to request that the Board convene a general meeting
who decide to transfer all other participating securities
securities company on her person.
(2) resolutions of the General Meeting requires the approval of at least nine tenths of the votes
all owners of participating securities, while
owners of preference shares and major shareholders have the right to vote.
the decision of the General Meeting with notarial record and its appendix
expert opinion on the amount of consideration in cash.
(3) Resolutions of the General Meeting also includes determining the principal shareholder
data certifying that such shareholder is the main shareholder and the amount
consideration determined in accordance with § 183j paragraph. 6 and the deadline for providing
(4) For the purpose of determining the share pursuant to paragraph 1
own participating securities owned by the company is divided between owners participating
securities in proportion to the nominal value of their equity securities
(5) Resolutions of the General Meeting to transfer all other participating securities
company's main shareholder is
requires the prior consent of the Czech National Bank, which must not be older than 3 months
, otherwise General Meeting resolution invalid. The provisions of §
183e shall apply mutatis mutandis; period specified in § 183e paragraph.
8 shall be extended to fifteen working days. Party to the proceedings is a major shareholder.
Czech National Bank always considers whether the consideration amount represents fair value
participating securities, while the assessment of the adequacy of the consideration
particular take into account the fact that the owner
participating securities is deprived of choice, whether and when participating securities
securities transferred to the major shareholder; in cases of doubt, the Czech National Bank
into account the interests of the owners of the securities.
(6) The main shareholder is obliged to deliver securities dealer or a bank
before the General Meeting funds in the amount
necessary for the payment of consideration and the General Assembly to document this fact.
Payment of consideration performs a bank or securities dealer.
(1) The Board of Directors shall convene the General Meeting within 15 days of receipt of the request
according to § 183i. 1 company.
(2) Invitation to the General Meeting Notice of the General Meeting must
also contain relevant information on determining the amount of compensation, possibly
conclusions of the report, if required, challenge pledges, who
known to the company or, with regard to proper care
manager should be known that the company had reported the existence of a lien
rights to participating securities issued by the company, a statement
Directors to whether it considers the amount of consideration determined by || | paragraph 6 for the fair.
(3) Identification of the main shareholder, the justification of the consideration,
expert report pursuant to paragraph 6, of the Czech National Bank pursuant to § 183i
paragraph. 5, exposes the Company at its registered office for inspection by everyone
Owner of a participating security; § 184 paragraph. 8, second sentence and third
shall apply mutatis mutandis. Listed companies simultaneously
publish information about the procedure under § 183i. 1
conclusions of the expert opinion, if required, in a manner allowing remote access.
(4) Draft resolution of the General Meeting may in determining the amount of consideration
depart from the justification of the consideration or the expert report pursuant to paragraph 6
(5) Owners of pledged participation securities
without undue delay after he learned about the convening of the General Meeting shall notify the company
reality stop and the pledgee;
Notice of this obligation shall be specified in the invitation to the General Meeting
in the notice of the meeting.
(6) Together with the request under § 183i. 1 delivers a major shareholder
company's rationale for determining the amount of the consideration, expert opinion and
decision of the Czech National Bank pursuant to § 183i. 5;
major shareholder bears the costs of acquisition and delivery of these documents.
(1) The owners of participating securities may
from the receipt of the invitation to the General Meeting or from the moment of the announcement of the meeting
ask the court to review the adequacy of the consideration; unless this right
exercised within one month from the date of publication of the entry of the resolution of the General Meeting pursuant to § 183 l
in the commercial register, expires.
(2) If the owner of a participating security
exercised the right under paragraph 1, not the inadequacy of the consideration has been invoked.
(3) A court decision was granted the right to a different amount
consideration is the principal shareholder and the company in terms of binding
basis of the granted right and to the other owners of the participating
securities. The limitation period begins to run from the date of legal force
decision, to all eligible persons regardless of whether they were
(4) the determination of the unfairness of the consideration does not invalidate
resolution of the General Meeting pursuant to § 183i. 1st
(5) Proposal to the resolutions of the General Meeting pursuant to § 131
not be based on the inadequacy of the consideration.
§ 183 l
(1) The Board shall, without undue delay after the adoption of resolution
General Meeting a proposal to enter the resolution in the commercial register.
(2) At the same General Meeting resolutions and conclusions of the report, if
are required to publish a manner determined for convening the General Meeting
companies and stores notarial deed at the company for inspection;
Notice of that fact in the published notice shall also indicate.
(3) months from the expiration of the publication of the entry of the resolution in the Commercial Register
under paragraph 1 of the ownership right to the subscriber securities
minority shareholders to the main shareholder.
(4) if the crosstalk participating securities pledge, lien expires
moment of transition. On the mortgagee who holds pledged
equity security, shall apply mutatis mutandis to paragraph 5 and 6
(5) The current owners of certificated participating securities is
submit to the Company within 30 days after the transfer of property rights;
the time delay can not demand compensation under § 183 meters. The company gives
write command changes the owners of dematerialized securities
participating securities in asset accounts a person authorized to keep the relevant records
securities under a special law within the same period
fact that the basis for writing the resolution changes General Meeting pursuant to §
(6) Unless the current owners of the securities
these securities within one month or within the grace period for the company,
which shall not be less than 14 days, the company under § 214, paragraph
. 1 to 3
(7) Returned participating securities before the company's principal shareholder
without undue delay. For participating securities declared invalid
Board will issue, without undue delay
principal shareholder of the new participating securities of the same mold, shape,
class and nominal value.
§ 183 meters
(1) Eligible persons are entitled to consideration in cash, the amount of which determines
major shareholder; The main shareholder proves adequacy of compensation
Expert opinion not older than 3 months of the date of delivery
application pursuant to § 183i. 1, and the amount of which shall examine the Czech National Bank
(2) The current owners of dematerialized securities
subscriber is entitled to payment of compensation for registration of property rights
asset account in the relevant register of securities and owners of certificated
participating securities escalating them by
§ 183 liters paragraph. 5 and paragraph. 6th
(3) An investment firm or bank will provide beneficiaries with
consideration without undue delay after fulfillment of the conditions referred to in paragraph
(4) The investment firm or bank gives consideration
always redeemed by the owner of the securities, unless it is proven
stop participating securities redeemed, then
for an amount equivalent to the value of the pledged participating securities
pledgee; this does not apply if the owner proves that
lien has expired, or that the agreement between him and the lien creditor
(1) Publication of the General Meeting resolution leads to exclusion
participating securities from trading on the official market, if they have been quoted; §
186a. 1 and Sec. 2 shall not apply. The company informs about the withdrawal
in accordance with special legislation of the regulated market on which
in the securities referred to in paragraph 1
admitted to trading applications to reflect exclusion to the appropriate list.
(2) The regulated market shall immediately notify the decommissioning
participating securities from trading on the regulated market
the depository and the Czech National Bank.
(3) The right of the majority shareholder according to § 183i. 1, which is applied
within 3 months of the date of vesting shares, expires. "
34th Constitutional Court, under § 68 par. 2 Act on the Constitutional court
first dealt with the adoption and publication of the contested provisions of §
183i through § 183n Com. Code. These provisions were the Commercial Code
inserted by Act no. 216/2005 Coll., amending Act no. 513/1991 Coll.,
commercial Code, as amended, Act no. 99/1963 Coll.
Civil procedure, as amended, Act no. 189/1994 | || Coll., on higher court officials, as amended, and
Act no. 358/1992 Coll., on notaries and their activities (notary Act), as amended
. This law was promulgated on June 3, 2005 in the amount
no. 77/2005 Collection of laws of the Czech Republic. Then there was a partial change their
Act no. 377/2005 Coll., on the supplementary supervision
banks, savings and loan cooperatives, institutions
electronic money, insurance undertakings and investment firms in financial conglomerates
and amending some laws (Act on financial Conglomerates
). This law was promulgated on 29 September 2005 in the amount of no.
132/2005 Collection of Laws of the Czech Republic. The second change took place in the context of
new regulation of financial market supervision in the form of Act No.
. 57/2006 Coll., Amending certain acts in connection with the unification of supervision
financial market. As a result of this change in the provisions of § 183i. 5 and
§ 183 paragraph. 2 Com. disciple. passed tasks Securities and Exchange Commission on
Czech National Bank.
35th From the data, the digital library of the Parliament of Czech Republic
follow these basic data. The bill no. 216/2005 Coll.
Was originally filed as a parliamentary motion deputy Pospisil (Print no.
566th Deputies. IV. Vol. Year 2005).
The Chamber of Deputies of the Czech Parliament held the first reading of a bill that
print no. 566 dated 2 April 2004. Within its framework, the bill was assigned for hearing
Constitutional Law Committee and the Economic Committee.
Constitutional Committee debated the bill on 20 October 2004 and took him
Resolution no. 143 (referred to in print no. 566/2), containing comprehensive
amendment. Economic Committee discussed the bill and approved
11 November 2004 Resolution no. 269 (quoted in print no. 566/3) and
in the wording of a comprehensive amendment to the same constitutional
Committee. In the second reading on 24 November 2004 at the 38th meeting
Chamber of Deputies of the Parliament of the Czech Republic was a proposal among others
Extended by the proposal of the deputy Dolezal. MP Dolezal gave it already
previously available to both committees, but they embraced it and
comprehensive amendment not incorporated. The proposal was in the 3rd reading
accepted and included in the overall design (voting no. 32 in the ratio of 120 for, 53 against
attended by 186 members of the Chamber of Deputies of the Parliament of the Czech Republic
). The overall bill was approved February 9, 2005 at the 41st session
Chamber of Deputies of the Parliament of the Czech Republic in voting no. 39, and it
182 votes out of 185 present.
36th Czech Senate debated the Bill on
31st March 2005 at its fourth meeting and adopted Resolution No. bill.
104, which bill the Chamber of Deputies of the Czech Parliament
back with amendments. Of the 69 senators present voted in favor for the
64, against nobody was.
Chamber of Deputies of the Czech Republic discussed the bill again on 5 May 2005
its 44th meeting and the resolution no. 1626 maintained the original wording of the draft Law
135 votes out of 193 present, against the two members of the Chamber
Parliament of the Czech Republic. Recalled that one of
amendments proposed by the Senate of the Czech Parliament intended specifically for embedded
launch of § 183i through § 183n Com. disciple. (Proposal
deputy Dolezal). However, the proposal received only 91 votes out of 189 present
. The president signed the law, and the law was promulgated on
third June 2005 in the amount of no. 77/2005 Collection of Laws of the Czech Republic.
Its efficiency was divided, part of the provisions came into force on its publication,
part on 1 July 2005.
37th The Commercial Code was shortly afterwards, again amended by Act no.
377/2005 Coll., On Supplementary Supervision of Banks, Savings and Credit Cooperatives
, electronic money institutions, insurance undertakings and investment firms in
financial conglomerates and
amending some other acts (Act on financial Conglomerates). In this case, a
a government bill (Print no. 835. Deputies. IV. Vol.
Period of 2005). The Government proposal in addition to its subject (
financial conglomerates) contained the amendment of sectoral laws in the area
supervision over the activities of banks, insurers and securities dealers, ie.
Banking Act, the Act on the Czech National Bank Act, the
insurance Act on capital market and the Act on
credit Unions, but not the amendment in question
part of the Commercial Code. In the first reading, which took place on 14 December 2004
at the 39th meeting of the Chamber of Deputies of the Czech Parliament, was
draft Bill for consideration of the Committee budget.
Budget committee considered the bill on March 11, 2005 and Resolution no. 496 of
2 March 2005 interrupted consideration of the item until March 9, 2005.
The 41st meeting of the Budget Committee held on 9 March 2005
Resolution no. 520 Committee recommended the Chamber of Deputies of the Parliament of the Czech Republic
to the government's draft law on supplementary supervision
banks, savings and loan associations, institutions
electronic money, insurance and investment firms in a financial conglomerate
and amending related laws (Act on financial Conglomerates
) gave its consent in the wording adopted amendments
proposals (see PS print no. 835/2). At the 42nd meeting
Chamber of Deputies of the Czech Parliament during the discussion of the draft law in the context of
second reading (23 March 2005) for the general debate of the Budget Committee
returned for reconsideration. The Budget Committee bill
discussed at its 45th meeting on 8 June 2005 and Resolution no. 597
spoke to the bill agree with the comments that have become
part of this resolution (see press PS no. 835 / 3). The bill passed
again the general debate of the 45th session of the Parliament
Czech Republic on 17 June 2005, which were presented as other
amendments (see PS print no. 835/4). In the third reading, which
took place on 1 July 2005 at the same meeting
Chamber of Deputies of the Czech Parliament, the bill was approved in a vote no.
690 votes of 152 out of 158 deputies present, none against. Also
this law was extended to a number of amendments which are not related to the main subject
proposal, ie. The supplementary supervision. originally
Six parts of the proposal has been amended, but in addition in the proposal
inserted additional 28 parts, among them the ninth,
amending certain provisions of the Commercial Code on the right purchase.
Senate of the Parliament of the Czech Republic returned the Chamber of Deputies of the Czech Parliament
bill with amendments that have included the changes in the organization
right of purchase. The bill returned by the Senate of the Czech Republic was voted
August 19, 2005 at the 46th session of the Chamber of Deputies of the Parliament
Czech Republic. Deputies of the Czech Republic
maintained in the presence of 180 deputies to the original proposal
Act (resolution no. 1835) votes of 147 deputies, was one vote against.
38th The last amendment of the provisions in Act No.
. 57/2006 Coll., Amending certain acts in connection with the unification of supervision
financial market in its Article. XLII, section 23. In this case it was about replacing
Securities Commission Czech National Bank, to which | || passed its tasks also in the right to purchase (§ 183i. 5 and §
183n paragraph. 2 Com. Code.). Other changes to the law forced buyout
been introduced. This proposal (Print no. 997. Deputies. IV. Vol. Period.
2005) originally did not contain this change. It was filed until
comprehensive amendment of the Budget Committee (print no. 997/5).
Because the petition was not filed orally, it is not possible to determine from the stenographic record, while
was filed. But there is no doubt that in this case it was the
proposal, which was associated with the substance of this case, if only during
consideration of the Budget Committee has proposed that was canceled
Securities Commission and its functions taken over by the Czech national Bank.
Chamber of Deputies of the Parliament of the Czech Republic approved the bill
at the 51th meeting of December 7, 2005 in voting no. 696, where the presence
181 deputies voted for 163, was one vote against.
Senate of the Czech Parliament, the bill was approved on 2 February 2006
9th meeting of the 5th term of 43 votes against 17 votes of senators for
presence of 69 senators.
39th From the above description of the approval process of the contested legal regulation
especially that Act no. 216/2005 Coll. the extent to which it is subject
management, ie. under a law forced buy-out, is not the result
legislative initiative under Art. 41 paragraph. 1 of the Constitution.
Original proposal submitted by January 20, 2004 in the form of proper parliamentary initiative as deputy
Pospisil Print no. 566. The proposal passed the first reading.
2nd reading of 24 November 2004 appeared in the General Debate deputy V.
Dolezal with this expression:
"I'd hate to disrupt the idyll that when discussing this law
rang, but I signaled submission of the amending proposal that
concerns the so-called squeeze-out. To give justice to the truth, I want to warn you
that was consulted as a presenter, who is with him
resigned as a minister, who agrees with him. Even
was submitted to the Constitutional Law Committee and the Economic Committee, in
advance, so that he could study these committees.
If you have not found the strength, courage and desire to deal with it, I do not know, in their resolution
appeared. that is why I am presenting it. you have received it all yesterday
writing on desk, I will not read this entire proposal.
I just want to point out that it is a modification of the Commercial Code, which results from
Thirteenth Directive of the European Union, and it's one of those things that just
sooner or later we waiting, so it is advantageous to work immediately.
Since the reasoning is all the changes presented to them yesterday
bench, I would not disturb the idyll here more. This will only enroll
into detailed debate, where I this his amendment
modified so that it can be incorporated into a comprehensive amendment
constitutional committee. "
This proposal was created as part of the amendments (Print 566/4 point C)
approved. He got on the agenda of the Chamber of Deputies of the Czech Parliament
after repeated consideration of a bill,
which was returned to the Chamber of Deputies of the Czech Parliament
Senate of the Czech Parliament. because the Senate of the Parliament of the Czech Republic
proposed the launch of a forced buy-out rights, it threatened not accepted
law as a whole. This illustrates the performance of the original initiator Members
Pospisil, who in this regard at the 44th meeting of May 3, 2005, in an effort to preserve a sense
original proposal, said:
"Ladies and gentlemen, in conclusion I would like to repeat the words of deputy Vrbík
and appeal to you. The material that discussing been discussed almost
year the Chamber of Deputies. She worked on the technical teams, legal || | teams ODS together with the legal teams of former minister Mr. Bures.
Hardly any material is thus discussed in detail in the legislative process
. Hardly any material gained a consensus on land
Chamber of Deputies across the political spectrum. Hardly enough material help | || Czech business community. that's why you, ladies and gentlemen, please
when discussing this material - we'll vote on the Senate and then the House version
- whether it is your opinion of the squeeze-out one way or another, much
please, keep in mind that the law itself provides for a procedure before
business registers, and that this proposal is for the Czech business community
very important. "
Actual negotiations in the Chamber of Deputies of the Parliament of the Czech Republic,
well as the Senate of the Czech Republic (see performances
promoters deputies and senators hurried Kubin, Paukrtová,
Stodůlky, Sefzig at the 4th meeting of the Czech Senate
Republic on March 31, 2005) and demonstrates that the proposed amendment of Deputy D.
was perceived as something not originally submitted a proposal to amend
Commercial Code and civil procedure (index management) || | unrelated. A similar situation occurred when adopting the first amendment to the rights
forced buyout Act no. 377/2005 Coll., Which was an amendment to this regulation
added in the form of amendment deputy Dolezal.
40th The Constitutional Court stands on the position that the assessment of the way the
contested provisions of the law proposed, discussed and approved, is part
evaluating whether such a law was passed in a constitutionally prescribed manner
(§ 68 para. 2 of the Act on the Constitutional court). Draft
Deputy Dolezal does not change or supplement the proposal submitted by deputy
Pospisil. It concerned a different issue, but also implies the existence
business register and writes to him. The Constitutional Court therefore
had to first deal with the question whether in adopting Act no. 216/2005 Coll
. not so serious violations
legislative procedures, which should lead to repeal of the law precisely for this reason
(see judgment Pl. US 77/06, no. 37/2007 Coll.).
41st In the Constitutional Court (to judgment no. 37/2007 Coll.) May
deviation from the limited space reserved for proposed amendments, take
exceeded intension nature of the proposal, or overlap extension subject
defined by the bill. This requirement of close relation or direct connection
content and purpose of the proposal and the amendment
it is part of the foundations of parliamentary techniques and reglementového rights.
It brings to discussing laws and parliamentary procedures not required
order. Each state and, within a portion of each house of the legislature
not seeking its own means to ensure that this requirement has been complied
, respectively. establishes special rules for departing from the limits of their
(eg. increased by a qualified majority, the support of a number of
deputies, expressing agreement or the petitioner, the renegotiation of the proposal).
Also varies in different states intensity
judicial review of compliance with these rules. On this issue because there
universal opinion. The Constitutional Court based its approach defined precisely in the above-cited judgment
which stressed that the so-called. "Limpet", this is the
case where the technique of the amendment to the bill joins
finish entirely different statute, the unconnected legislative pattern.
In the Constitutional Court and constitutional interpretation
provisions governing the right to introduce amendments to the present draft
Act requires that "the amendment actually
merely modify the submitted legal scheme, ie. In accordance with the requirements of the so-called .
close relationship rules according to which the amendment must concern the same subject
proposal, which is in the legislative process, would
the amendment did not deviate from the limited space reserved
amendments in the form extensive exceeded subject
Bill under consideration. "The right to submit amendments is included
constitutional for the formation of the will of parliament of a democratic state.
Amendment, however, is by its nature a proposal accessorial to the proposal
which was filed as a constitutional initiative by Art. 41 of the Constitution.
Therefore, § 63 para. 1 point 5 point.) of the Rules of Procedure of the Chamber of Deputies of the Czech Parliament
demands that it emitted,
expanded or changed some parts of the "original design". the basis of the parliamentary
discuss this initial proposal, which is expressed by the government
Article. 44 paragraph. 1 of the Constitution, committees, whose bill was not commanded or
individual Members according to § 91 para. 4 of the Rules of Procedure of the Chamber
Parliament of the Czech Republic. If not, there
by the Constitutional court for violation of the separation of powers. this has implications for
principles of creating harmonious, transparent, and predictable law that
Constitutional court had already merged with the attributes of a democratic legal state.
Further, the circumvention of the institute of legislative initiative under Art.
41 of the Constitution and violation of the government to comment on the bill under Art. 44 of the Constitution
42nd In this case, however, the situation is not completely identical to the one that
dealt with the Constitutional Court in the cited judgment. Print no. 566 contained a proposal
JP deputies for promulgation of Act amending Act no. 513/1991 Coll.,
Commercial Code, as amended, and Act no. 99/1963 Coll., || | rules of Civil procedure, as amended. From the content perspective
concerned § 3 Com. Act., which should be repealed,
further § 27 to § 34 degrees Com. Act., which should be newly regulated
head of the third part of the first on the business register, and finally § 200a to §
200df the CPC., relating to proceedings relating to the commercial register.
Could not be substantively relate to forced redemption rights (§ 183i through § 183n Com.
Act.) Because this issue is to the Commercial Code came only
through the above proposal Deputy D. To assess the admissibility
Members of the proposal D. But it is not essential.
In this case, contrary to the assessment of the substance of the relationship
amendment to the original proposal. The starting point of the assessment that the narrow or
substantive relationship is the "original design", a legislative initiative
(amending Act) under Art. 41 of the Constitution, not the law that is the subject of this initiative
(revised Act). Therefore irrelevant whether
amendment is subject to the Commercial Code (broad relationship), but whether a revision of the rules
commercial register of the Commercial Code and
registration proceedings in the Civil Procedure Code (close relationship).
43rd Binding original proposal Members of Pospisil and amendment
deputy Dolezal is therefore only a formal, not substantive.
Against the admissibility of such a proposal speaks especially its severity.
Government has not been able to express this proposal, although corresponding
Chamber of Deputies of the Czech Parliament on issues of leadership
internal and foreign policy. In the case of the Thirteenth Directive is a fulfillment
obligation arising from membership of the European Union. Amendment
is not excluded, however, it affects the position of the government as a representative
Czech Republic in relation to the European Union. Amendment While
concerns matters governed by the Commercial Code, not in the original draft
treatment, which would involve an entirely different statute. Members of the original proposal
Pospisil, however, applies only indirectly, and not just because it
they are subject to registration in the commercial register, and in a way that does not
judicial review. Pospisil said the deputy himself (4th meeting
Senate on March 31, 2005) that
"The proposal did not aim to significantly change the applicable substantive
arrangements contained in the Commercial Code, which concerns
business registers. In layman's terms, our proposal in principle does not change the fact that
according to the valid Commercial law entered in the commercial registers ".
44th In judgment no. 37/2007 Coll. The Constitutional Court, however, warned that any
assessment of similar violations of the legislative process in the past
with the test of proportionality in connection with the protection of
public confidence in the law, legal certainty and acquired rights, possibly in
relation to other constitutionally protected principles, fundamental rights,
Freedom and public goods. The Constitutional Court therefore had to consider other
circumstances of the case that was not his role limited to a review of hundreds
procedural errors both Houses and their governing bodies, without
to have any material impact on the assessment of the constitutionality of the legal
Regulations. If the Constitutional Court started following legitimate proposals to repeal the law suit
only of those procedural grounds on the edge
reglementového constitutional order and law, would create a state of considerable legal uncertainty
particularly where it would otherwise not contested law
terms of content may be above reproach. Therefore, it was necessary to assess and
circumstances that should lead to the Constitutional Court in order to confine
only to review compliance with the close relationship between the original proposal and
45th In favor of this relationship speaks to the implementation of a forced buyout
is entered in the commercial register (§ 183 liters paragraph. 1 Com. Code.) And that way
such registration pursuant to § 200d Civil Procedure. Is the subject of proceedings before || | Constitutional court under file. Nos. Pl. US 43/06.
Any finding of unconstitutionality of this regulation should be consequences for this proceeding.
It can not ignore the fact that if found, no. 37/2007 Coll. It was
unrealized law. In the case of initiation Art. II and Art. III of Act No.
. 443/2006 Coll., Amending Act no. 319/2001 Coll., Amending
Act no. 21/1992 Coll., On Banks, as amended, namely
law has not yet been applied. In addition, it was his application
basically a one-off. In this case, it is being forced
editing rights to purchase, which has been amended twice.
Government thus had the opportunity to express their views and apply their own
legislative initiative. This adjustment has been opposed to the initiation of the case was
often applied in practice, in which - as in theory -
sparked many disputes, the resolution of the Constitutional Court is expected to
company, and particularly the judicial practice in the field commercial law.
This also applies to the legislature, which has to transpose the Thirteenth Directive as
Takeover Law (Chamber of Deputies. Print no. 358 of 14th November 2007
) and the judiciary. In this context recalled
that the Constitutional Court in its judgment. Nos. Pl. US 23/04 (no. 331/2005 Coll.)
Volunteered to show restraint in the evaluation process itself
adoption laws. In this case, the formal revocation rules rights
forced to purchase large (nothing else would in this case not come into consideration
) mean a danger that the same adjustment will be taken again,
with the only difference that will compliance with all legislative requirements
process. The Constitutional Court concluded that in this case
formal and procedural aspects of the review receding light of the principle of proportionality requirements
principles of substantive law, legal
certainty and effective protection of constitutionality.
The constitutionality of the regulation of the right to purchase
46th The Claimant in its summary submission dated 28 February 2007 states that
Czech law squeeze-out shows
large number of defects whose combined effect makes this legal
treatment is inconsistent with the right to peaceful the use of property and the right to a fair trial
, as well as with European Community law and international law
. As is apparent from the above summary of the complaints
in most cases it does not specify requirements in the sense that
under Article. 87 paragraph. 1 point. a) of the Constitution. Unlike previous administration
ranked first in the alleged conflict with Community law, without
further characterized in what it should mean the same
need for intervention by the Constitutional Court within the meaning of Article. 87 paragraph. 1 point. a) of the Constitution.
Therefore it was necessary to emerge from the earlier submission of the petitioner, which was still
certain constitutional arguments strongly incorporated (sub 13-22).
47th The fundamental question is evaluating the constitutionality of the institute itself
forced to purchase both in terms of the constitutional order of the Czech Republic [Art.
87. 1 point. a) of the Constitution], and in terms of international commitments
Czech Republic according to Art. 1, paragraph. 2 of the Constitution. In this context, it was necessary
deal with the objection violation of Article. 11 par. 4 and in particular
question of possible interference with property rights under Art. 11 paragraph. 1
paragraph. 3 of the Charter though the appellant submitted his request on those provisions
Not supported. In this regard, it was necessary to assess whether:
A) constitutional order, regardless of the Thirteenth Directive, such interference in property rights
admits, and that the main criterion for defining and
minority shareholders corresponds to the principle of proportionality of interference;
B) whether the intervention is legitimate and rational when the law grounds for claiming rights
forced buyout does and whether it corresponds to the character and peculiarities
relations in the company;
C) enshrining the rights of forced buyout State fulfilled its protective function and
did not allow a disproportionate interference with property rights;
D) the intervention meets the conditions laid down in Article. 4 paragraph. 2 and Art. 11
Charter and Art. 1 of the Additional Protocol to the European Convention;
E) to avoid interference with the acquired rights and violation of the principle of legitimate expectations
48th Before the Constitutional Court delivered its opinion on the above
issues, it was necessary to deal with the latest version of the submission of the petitioner
which is based primarily on the alleged contradiction in law of a forced buyout
s Thirteenth Directive (sub 6 and 7 ). Here, one must consider what
Constitutional Court has already on several occasions (especially judgment Pl. US 50/04, no.
154/2006 Coll., And Pl. US 36/05, no. 67/2007 Coll. ). Reference aspect
review of the constitutionality of laws under Article. 87 paragraph. 1 point. a) and Article. 88 paragraph.
2 of the Constitution the constitutional order. The Constitutional Court is not competent within
such proceedings to examine the compatibility of national law with Community law
. Application of Community law as directly applicable
law (see the judgment of the European Court of Justice, Case 106/77,
Amministrazione delle Finanze dello Stato v Simmenthal SpA.
Request for a preliminary ruling: Pretura di Susa - Italy. Discarding
law which is contrary to Community law, a national court
known as Simmenthal II, available in the ECR, vintage 1978
p. 629 eg. http: // eur-lex. europa.eu) it is the responsibility
general courts, which are in doubt about the application of this law
option, respectively. have recourse to the European Court of Justice
preliminary ruling under Art. 234 TEC. In terms of benchmarks
decision of the Constitutional Court will not change anything. Of Art. 1, paragraph. 2 of the Constitution and the Constitutional Court
as a state body of the Czech Republic oblige
European-conforming interpretation (see also judgment file. Nos. Pl. US 66/04, no.
434 / 2006 Sb., in relation to Union law)
constitutional order in areas where community law and the law of the Czech Republic
meet (pledge of loyalty under Article. 10 TEC). However, it must be an explanation
constitutional order in relation to national law.
However, the petitioner requested the Constitutional Court to decide on his opposition leading to defective
transposition of Community law. They therefore Constitutional Court
left side. In the event that the applicant would be restricted only to them, it would
proposal must be rejected for lack of jurisdiction of the Constitutional Court. The Constitutional Court, however, must
interference in legislation to take membership in the European Union
into account in terms of Art. 1. 2 of the Constitution and consider the possible use
option which gives § 70 para. 1 of the Constitutional court.
49th The same objection applies to disrespect no closer
unspecified international treaties on investment protection. Even in this case
it is a question of their application in a judicature operations
general courts, which are bound by such agreements on the condition that
meet the requirements of Art. 10 of the Constitution. If it contains such a different convention
legislation is necessary to apply the principle of primacy of such
Convention. Because this is not a problem of relational hierarchy (according to legal
forces), but the hierarchy of the application, reference is made to the rules
enshrined in Art. 10 and Art. 95 para. 1 of the Constitution.
50th Likewise, the Constitutional Court, leaving aside the objections of the complainant, which
only directed to request an interpretation of ordinary law.
Ambiguity in the statutory framework must remove the case law of the general courts and removal
potential inconsistencies in the decisions of the ordinary courts it is the responsibility
Supreme Court. The Constitutional Court has repeatedly held that, until this
area may enter only when simultaneously
is a violation of the constitutional order and imprecision, uncertainty and unpredictability of the legal regulation
extremely violates the basic requirements of the law in terms | || law.
51st The basic question therefore is constitutional admissibility of a forced buyout of shares
in the rule of law (Art. 1, paragraph. 1 of the Constitution) for the requirements of legality, rational
zdůvodnitelnosti (prohibition of arbitrariness), necessity,
legal certainty, predictability and certainty right. Only after
answer is to assess whether its treatment in detail
meets the constitutional criteria. On this basis, to decide whether
will eventually canceled the arrangement as a whole or only its individual parts
. Already in its judgment. Nos. Pl. US 59/2000 (no. 278/2001 Coll.)
Constitutional Court stressed the importance of economic factors for the interpretation of the provisions
constitutional order that govern the issue
functioning market economy. Therefore, it is necessary to interpret the provisions of the squeeze-out
approached from the point of view peculiar to the area, which are to be applied
and from which stem problems whose solution should be legally regulated
. The joint stock company has a different character than a trade union organization
association, political party or religious society. Nor can
by the same standards to assess compliance with the constitutional requirements for the creation, operation and termination
such companies. Membership in it
based on share ownership can not be compared with the payment of membership dues or so-called crowding out
. Minority shareholders to the exclusion of a member from the association or political party
. Therefore, it is also the understanding of shareholders as owners of
compared with other property owners subject of debate particularly in the case
minority shareholders (ie. Passive owners - closer Lee, J .: Four
Models of Minority Protection in Sharoholder Takeovers.
European Business Law Review, vol. 2005, no. 4, p. 809). The aim of the joint-stock company is concentrating
capital investment, business and
profit. In the event that one of the shareholders
reaches a set percentage of the shares pursuant to § 183i. 1 and Sec. 4 Com. Act., occurs
stock company situation where the remaining shareholders may (but need not)
cease to be beneficial for a company. This is true both in terms
importance of their share in the total capital of the company and their
ability to influence decision-making in it. On the contrary, their participation may
burden joint stock company in terms of the cost of its operation,
convening general meetings and their decision-making with regard to the rights of those shareholders
. A substantial number of small shareholders may (but need not) pose to society
unnecessary increased costs of administration and management.
Joint stock company has an obligation to such shareholders in the same range, although
their possible contribution to the further development, the adoption
strategic and other decisions, is practically zero.
Most of these arguments is part of the underlying messages of Experts for adoption
Thirteenth Directive known as the "Winter's message" (according to the chairman
group Jaap Winter - text Report of the High Level Group of Company Law Experts on
issues Related to Takeover Bids. Available at http
//ec.europa.eu/internal_market/company/docs/takeoverbids/2002-01-h lg-report_en.pdf, pp. 60-61) . At present, the prevailing view that stock
companies require a flexible legal framework for achieving its
strategic goals, which can not always be achieved through closing
contracts. Therefore, the legislature should create the necessary conditions (so van der Elst
, Ch., Van den Steen, L .: Squeezing and Selling-out - and Patchwork
of Rules in Five European Member States. European Company Law, vol .
2007, no. 1, p. 25). Another significant factor in the Czech Republic
voucher privatization, which created a very different type
shareholder structure of public limited companies than in states whose
experience and legislation, the petitioner relies. For that reason
comparison with states where such mass action occurred, not entirely
place. The Constitutional Court recalls that aspect only, without this
way of privatization expressed in terms of convenience (to finding
sp. Nos. Pl. US 38/01, Collection of Decisions of the Constitutional Court, Vol. 29 ,
p. 357). The same is true for reflections on the need for the introduction of a forced buyout
institute for competitiveness and increased interest of foreign investors
52nd The position of shareholders can not be compared with other Member rights
types of associations and companies. Share of shareholders is determined by the size of its
Investment, while the risks for this reason bears.
Rights of shareholders (see the list of Dedic, J. et al .: Joint-stock companies.
6th ed., Prague 2007, pp. 235-238) therefore differ, as well as their
obligations. If a shareholder owns 90% of shares, the remaining shareholders
impact on society is negligible and the opportunity to participate in major
decisions about the direction the company is illusory. The right to an explanation and information
obligation may complicate policy decisions
main shareholder. Such decisions can also be challenged as a form of abuse
majority of votes in the company to the detriment of the minority (§ 56a of the Commercial Code.
Act.). The mere possibility of such disputes could hinder business objectives
main shareholder. You can not overlook that the ban on abuse
can objectively limit the main shareholder with respect to the presence
remaining shareholders. On the contrary, the reference to possible abuses of their rights
not decisive in this respect. While in the situation, 90% stake in the case
main shareholder applied to the full participation of both ingredients,
business and capital, minority shareholders and minority shareholders have already
only participates as a capital investor, while the component of the decision | || practically suppressed. If they ensure an adequate substitute for a
investment, it can not be thus set conditions forced buyout
objections in terms of constitutionality. One also can not rule out that such a measure
may also benefit minority shareholders, because, under certain conditions, such kind
shares lose their value and become
shares unmarketable because of them ceases to be interested. Therefore, creating a legal
adjustments for forced purchase of shares in a certain situation can also be understood as
possible advantage of minority shareholders in terms of increasing interest
takeover of the company. Potential candidates have generally an interest to acquire
society as a whole, which may positively affect the share price
(eg. Münchener Kommentar zum Aktiengesetz. 2nd ed., Vol. 01.09, § 327a -
§ 327f , Vorbemerkung, AktGWpÜG. SpruchG. München 2004 NB. no. 3).
Interpretation of the legislation can not be clearly under the control of an abstract
reach a conclusion on the unconstitutionality of the legislation. Based on usage
possibility of a forced buyout is not ruled out intervention in the constitutionally guaranteed rights
shareholders, but such a possibility in itself does not unconstitutional.
This could happen only if the state within its protective function
failed to provide minority shareholders means of legal protection.
The fact that under the law of a particular institution (eg.
Bond, expulsion, dispossession, exclusion from association) may occur
violation of constitutionally guaranteed rights, yet does not unconstitutional.
This would occur only when their constitutional "guarantee" proved
53rd The general objection that it is a form of expropriation, noted that
body which deprives minority shareholders of their rights, no authority
public authorities promote the public interest. Forced to repurchase shares pursuant to § 183i
Com. Act., as well as the transfer of assets to a shareholder under § 220p Com.
Act., Is a way of the property relations
certificated by the state and is comparable with other forms of treatment
property regimes, in condominiums or
between co-owners in general. The Constitutional Court therefore takes the position that
as minority shareholders would be on him in a different position might turn
so. The main shareholder. He is also the owner and also has the right to protect its proprietary
, societal and business rights
terms of the Charter (Art. 11 Sec. 1 and Sec. 3, Art. 26 Sec. 1 and Sec. 2)
a fact that the petitioner passes away. If all shareholders are entitled
judicially challenge the resolutions of the General Meeting (§ 183 in connection with § 131 paragraph.
1 Com. Code.), Carries the risk of paralyzing the agility stock
major shareholder of the company to a far greater extent. Therefore, it is a case
resolving a conflict of fundamental rights and freedoms, not about expropriation
under Art. 11 par. 4. It is about creating opportunities for it to
General Meeting decided to change the structure of private property
relations between shareholders (similar to the view of the German doctrine Schmidt-Aßmann,
E .: Der Schutz des Aktieneigentums durch Art. 14 GG. in: Der Staat des
Grundgesetzes. Festschrift für Peter Badura. Tübingen 2004, p. 1023)
Be under the supervision of the Czech National Bank and is guaranteed by judicial
protection. The fact that the state fulfills its protective function, still does not indicate that he
can be attributed to interference with the rights of minority shareholders, as in the case
expropriation. The legal system is not a rare measure (cf. § 142 o.
Out.). However, where the state joint-stock company within a legally regulated manner
compulsorily redeem shares of certain groups of shareholders
another shareholder must meet these arrangements similar to, but not
same criteria as in the case of expropriation, since the expropriation || | impossible. This especially applies to the protection of constitutionally guaranteed rights of minority shareholders
as the first place to protect property rights
under Art. 11 Sec. 1 and Sec. 3 of the Charter and the right to associate with others for business purposes
by Art. 2. 3, Art. 20 paragraph. 1 and Art. 26 paragraph.
1 and paragraph. 2 of the Charter.
54th On this basis, therefore, the Constitutional Court had to consider in terms
principles of proportionality, necessity and appropriateness of advancement opportunities
principal shareholder, as in the present case is not primarily about the conflict
public interest and fundamental rights, but a conflict between two fundamental rights
where confront each private party (owners) rather than public
power of acting according to the rules of Article. 2. 2 of the Charter and the person
private law rules within the rules of Art. 2. 3 of the Charter . Called.
displacement or forced buy-out right, sometimes inaccurately referred to as a squeeze-out or
freeze-out (to the different meanings of these terms, see Garza, JJ:
Rethinking Corporate Governance: The Role of Minority Shareholders - A Comparative | || Study. St. Mary's law Journal, Vol. 1999-2000, pp. 621-625) is known
laws of many countries within the European Union even
assumed based on the transposition of the Thirteenth Directive. Somewhere forced
purchase of limited liability companies, such as. The Czech Republic,
Germany, France, Italy, the Netherlands, Great Britain, Poland and elsewhere
applies generally (in Austria Bundesgesetz über den von Ausschluss
Minderheitsgesellschaftern - GesAusG. BGBl. it, no. 75/2006), somewhere
applies only to companies with listed securities, as well as elsewhere on
others. They are also different conditions under which it may displace occur.
Measure of review of the Constitutional Court, however, there is no contradiction or inconsistency
contested legislation with international rules but
constitutional order. The fact that domestic legislation may provide a lower standard
protection of minority shareholders' rights does not necessarily mean that it is unconstitutional
. However, nothing prevents that foreign experience
become a source of inspiration for its improvement. The mere existence of argumentation
this institution in other states have solved the case itself
importance, failing that just by adding a constitutional argument.
You can not start from the presumption that treatment in a particular state is a binding model for other states.
It finally proved by the efforts of a certain unification within the European Union, which
after more than ten years of effort culminated in the adoption of the aforementioned
Thirteenth Directive in 2004.
55th Economic and legal rationale for regulating this institute are mutually conditional
. Originally a joint stock company decided according to the principle of unanimity and
based on the expectation that the law does not go into relations
such companies to intervene. He asserted so. Vested rights theory,
which was of the opinion that certain rights can not be a partner without its consent
lose. It proved terms of economic needs
completely untenable since the late 19th century. Therefore been replaced by the principle
majority decision (to detail Carney, WJ:
Fundamental Corporate Changes, Minority Shareholders and Business Purposes.
Amarican Bar Foundation Research Journal, Vol. 1980, p. 69, 77n). .
With the development of economy, the growing number of corporations and shareholders
is based on the original concept of federal character and acquired rights
(conflict membership strategy and investment strategy) began to show
tyranny of the minority veto ( Weiss detail, EJ: the Law of
Take Out Mergers: A Historical Perspective. New York University Law Review, Vol
., 1981, no. 4, pp. 627-657, UK p. 685n). . Therefore
gradually overcome the initial concept and development has led to the current state
not only in the US but also across developed European countries, and since 2004
also within the European Union. Important is that this process
Is legally regulated and clearly, which is different from the so-called. Wild displacement,
when to push the minority shareholders to use other means well
leading to that goal, not transparently regulated and allow
affect minority shareholders their share considerably exceeds even
5% to 10% as at law forced buyout standard.
Same time, the Institute is seen as a legitimate complement to modify the mandatory takeover bids
governed by § 183b paragraph. 1 Com. disciple. (To Dedic, J. et al .:
stock companies. 6th ed. Praha 2007, p. 307).
56th For the Constitutional Court in the case of a forced buyout essential that this
economically substantiated procedure (rationality and appropriateness of intervention) is legally
adjusted as desired in terms of rule of law (legality
intervention). There is no need to consider the question of public interest
same procedure as for expropriation (see also sub 66 in connection with the determination of the amount of compensation
). Public interest is reflected in principle
market economy and freedom to do business a different way and applies
other means, among other things by creating suitable conditions for legal
functioning of corporations. The main shareholder is governed
public interest within the meaning of Article. 11 par. 4, since it is a matter for its consideration
enabled the Commercial Code, to decide whether the remaining shareholders
redeem, and thus becomes the sole shareholder, which will decide according to its own discretion without
general meeting and other institutions
rights of joint stock companies (ie. going private in Anglo-Saxon law).
In the event of a forced buy-out rights is not a normal decision-making at the General Meeting
. It is the most qualified and situated so high that a possible objection
abuse are practically suppressed. When deciding
qualified majority owner
minority shareholders can not block the general meeting pursuant to § 185 par. 1 of the Commercial Code.
Act., Let alone prevent the adoption of major decisions, whether it is necessary for their adoption
simple majority (§ 186 paragraph. 1 Com. Code.)
Qualified (§ 186 paragraph. 2, 3 and 4 Com. Code.) and combined with the prohibition
outnumbering (§ 186 paragraph. 4 Com. Code.). When the proportion of nine to one
You can not talk about the actual possibilities for minority shareholders to influence company decisions
, it's just possible factual complication of
functioning. After being set a requirement of 90% supermajority
far exceeds what the terms of § 66a of the Commercial Code. disciple.
considers control of the company. In terms of the proportionality principle may be considering such
ratio has been hard to argue if they are subject to additional safeguards also
protection of property rights in the adjustment of its own procedure of compulsory redemption
(reasonable compensation, legal protection).
57th Allowing the forced purchase of the Commercial Code does not
qualified majority shareholder will always consider it necessary
redeem the remaining shareholders. It is a matter of its business
decision that limited period and subject to such conditions, although membership
protect minority shareholders (aspect of the right to association, freedom
business and the ability to make decisions) in the company, but protects
their existing ownership interest expressed in the form of shares, which is the condition
the constitutionality of such arrangements (Art. 4 par. 4).
In the first place, such an adjustment must lead to a major shareholder consideration
if he did not pay his usage rights, which provides him with § 183i
paragraph. 1 Com. Act., in a situation where the company is fully controlled. However
It follows from the above highlighted the economic nature of such a transaction, so after
legally not necessary decisions on actual usage rights
forced buy-out (apart from compensation for purchase) justify. This follows from the concept of a market economy
currently (compared to the mid-20th century, when the protected
membership), it is expected that the majority shareholder himself
consider whether the costs of implementing a forced buyout him bring profits (for example
it. Schön, W .: Der Aktionär im Verfassungsrecht. Festschrift für
Peter Ulmer. Berlin 2003, pp. 1387-1388). The task of the state and its organs
(Czech National Bank, court) is not possible to examine the prospects for the accuracy
business decisions, but rather to assess whether
meet legal conditions for the implementation of such actions, and possibly provide legal protection
vykupovaným shareholders. Similarly to the strategic plan of the investor
Can be concluded from § 183n paragraph. 3 Com. Act., which is implicitly assumed that with such
intention investor will profit 90% share seek.
If it did not do so immediately (three month period), this option is already losing.
'58. Set limit of 90% is the result of consideration of the legislature
could determine or even lower limit, as well as higher (95% in Germany,
Poland, the Netherlands, France, Belgium, 98% in Switzerland). So it was
in the Czech Republic in the event of dissolution without liquidation
period from 31 December 2001 to 11 July 2002 (effective date of Act no. 308/2002 Coll
., Amending the Commercial Code) .
In terms of the constitutional order and respect the protective function of the state within the framework for mutual
status of partners is an expression of the 90% threshold required limits and does not raise doubts
already with regard to the European standard for who can be considered frontier contained
in the Thirteenth Directive and used in a number of other states
. If the applicant objects (sub 6a) mismatch express this
border Thirteenth Directive, it is necessary to refer to what was stated
sub 28 and 48. In the view of the Constitutional Court is a matter of ordinary law and fulfill
conditions § 183i. 1 Com. disciple. It is a matter for the ordinary courts
not the task of the Constitutional Court in an abstract review of the constitutionality of the law
59th The petitioner's objection (sub 7), it is a violation of the European Convention
, it should be noted that it is generally closer in terms of the position of minority shareholders
unspecified and merely repeating what is reported in other
points of the proposal. It relies, however, a decision in the matter
Bramelid and Malmström against Sweden in 1982, no.
Decisions 8588/79 and 8589/79, and especially James and others v United Kingdom (sub 15).
The latter case, however, concerns not the ownership of the shares, but
pricing under the law of the purchase of apartments in the long-term used
farms. European Court of Human Rights, as well as
former European Commission of Human Rights, in terms of Art. 1 of
Protocol to the European Convention ranks under the concept of property also shares
liability companies (specifically against the judgment Sovtransavto Holding || | Ukraine from July 25, 2002 in paragraph 91). But this is not the case
dispute and none of the parties deny it. Nor it is
fundamental problem forced buyout of minority shareholders (
summary judgment on liability companies see in Schreuer, Ch.,
Kribaum, U .: The Concept of Property in Human Rights Law and Interantional
Investment Law. In: Human Rights, Democracy and the Rule of Law
. Liber amicorum Luzius Wildhaber. Zürich etc. 2007, especially pp. 752-758
; Frowein, JA, Peukert, W .: Europäische || | Menschenrechtskonvetion. 2nd ed. Kehl etc. 1996, p. 784), but to protect against arbitrary
main shareholder and sufficient legal protection (decision
Bramelid and Malmström against Sweden on 12 October 1982 in fine).
The very possibility of a forced buyout rights and its relationship to the expropriation mentioned above
opinion has been delivered. If the petitioner further highlights the problems associated with
unclear legislation and inadequate legal protection, they will
60th Finally, it must be ascertained that the petitioners
does, however, which is relevant in terms of the nature of the stock
companies themselves, and particularly in terms of the way right
forced buyout to Czech law was given. Because right
forced buy-out is a relatively new institution in commercial law, it was
necessary to assess whether there has been interference with the acquired rights and breach of the principle of legal certainty
. The Constitutional Court in its case several times
protection of acquired rights and the principle of legal certainty preoccupied and found that the signs
rule of law are inseparable principles of legal certainty and the protection
citizens confidence in law and that the process includes a ban | || retroactivity (cf. judgment file already. Ref. IV. ÚS 215/94, Pl. US 33/01).
In legal theory and practice makes the difference between true and false
retroactivity, because each of these types of retroactivity is
terms of admissibility viewed differently. In the case of false retroactivity
new legal norm leaves the old legislation to address the issue
formation of existing legal relationships in the past made
legal actions and claims arising from them, and only the future changes
rights and obligations associated with those already incurred legal relations.
While genuine retroactivity is inadmissible few exceptions, for
false retroactivity applies that is in principle acceptable.
In the present case, it is just a generally accepted
false retroactivity. Modifying a forced buy-out does not affect the actual
acquisition of the securities and claims associated with them,
incurred prior to the effectiveness of the adopted law, the only time since its effectiveness in the future
therefore, the obligation of the minority shareholder tolerate interference | || his property rights, provided that they are filled with the law
anticipated conditions that constitutionally guarantee the lawfulness
this intervention. Abolition of the old and the adoption of new legislation entails
interference with the principle of preserving acquired rights and confidence in individual
law (cf. Judgment file. Nos. Pl. US 21/96, no. 63/1997 Coll. ). According to Art. VI
Act no. 216/2005 Coll. provisions relating to the forced buyout, acquired
effect on 1 July 2005 with the exception of § 183i, § 183k,
§ 183 liters, and 183 meters § § 183n, which come into effect on the day of its publication, ie
. 3 June 2005. In terms of constitutional rules
promulgating laws under Article. 52 of the Constitution for violation of the constitutional order.
In this regard the Constitutional Court concluded that the part of the principle of legal certainty is certainly
permanence legislation for the duration
legal relationship. Law is a dynamic system that responds to the development and
tendencies in society, and therefore it is essential that doznávalo
changes depending on its needs, in this case in business
rights, which in the Czech Republic gradually
developed on the basis of experience taking legal adjustments developed economies.
This also applies to shareholders who acquired shares before June 3, 2005, and who could
envisage the possibility of taking over its shares to the principal shareholder pursuant to § 220p
Com. Act., where they have become since the Act no. 370/2000 Coll.
Legislation forced purchase of the shares was not retroactive and
occurred in the situation when no similar adjustment so. False crowding was
Commercial Code contained.
61st At the conclusion of the Constitutional Court on this matter suggests that the legitimate expectations of the owner of the shares
not of such intensity as legitimate expectations
other property owners, given that the very nature
share ownership does not guarantee shareholders unchanging position, nor || | absolute equality of shareholders, as the extent of property rights is derived from
number of shares of the same nominal value and the nature of nature stock
company follows the "risk" changes the position of its shareholders, especially minority shareholders
(cf. resolution file. Ref. IV. ÚS 324/97 and
IV. ÚS 720/01). In answering this question, based on tests known in
abroad (eg. Fair market value price, net asset value method,
Delaware block method, earnings value method, reasonable expectations
test, defeated expectations argument, etc. - also sub 66, a distinction
also purchase in open or closed companies) is within
proceeding on abstract review of the constitutionality excluded, since it may involve an assessment
investor's expectations only in general terms. In practice, however
such investor is not - there is always a particular stock company in
particular situation (at the time of purchase of shares and the time of the forced
purchase, for buyers outside the company and within the company, the market price
yield and price) and there is a particular situation in the capital market
(the value of shares will depend not only on the specific joint-stock company).
This issue can be solved only in the framework of the procedure under § 183i. 5
Com. disciple. (Review of the Czech National Bank) and § 183k Com. disciple. (Judicial protection
owners of participating securities). Within
abstract review of the constitutionality of the Act can only be assessed in terms of proportionality
whether intervention is possible, necessary and desirable in terms
another fundamental right, whether there is protection at all and whether it adequately
guaranteed. The institute forced purchase of the shares pursuant to § 183i through 183n
Com. disciple. It may therefore be considered as measures whose implementation is
within the bounds of the constitutional order of the Czech Republic.
62nd Regarding the relationship between capital and minority shareholder of
terms of respect for equality, it should be emphasized that the concept of equality
appears in many different positions. Therefore, a mere lump voucher
Equality of shareholders, regardless of the nature of ownership
participating securities is virtually meaningless. As mentioned above,
very nature of share ownership does not guarantee shareholders
unchanging position, nor their absolute equality, because the scope of their
property rights is derived from the number of shares of the same nominal value and
nature of joint-stock company implies the possibility of "risk" status changes
its shareholders, especially minority shareholders (cf.. resolution file.
brand. IV. ÚS 720/01). The position of shareholders in a company's capital
not mechanically transfer rules which apply in other
associations, respectively. in other forms of decision making (eg. in
voting rights). The voting rights of a shareholder is associated with shares (§ 180, paragraph
. 2 Com. Code.). Because the sign-stock company and its
peculiarity is the possibility that one partner had more shares (not
one partner - one share of the same nominal value) also varies
position and possibilities of the partners in the company. This is especially
equality in terms of the size of the share in the capital stock
company (the same nominal value per share - the same number of votes - 180 §
paragraph. 2 Com. Code.), So from this point of view on some
inequality can not talk. This would be possible only in situations where
Commercial Code enshrines the rights of shareholders regardless of the number of shares they own
eg. The right to participate in the General Meeting, the right to vote, the right to
information, the right to exercise proposals and counterproposals (§ 180 paragraph. 1 Com.
Code.), the right to protect (§ 182, § 183 Com. Code.). From this point of view there
However, contrary to the difficult position of the main shareholder,
whose investments can be based on the application of such rights under threat.
That is why, as explained above, constitutionally permissible for the major shareholder
consider whether to use the possibility of a forced buyout.
Violation of the principle of equality in this regard, the Constitutional Court found. Refer to Art. 3
paragraph. 1 of the Charter, under which the fundamental rights and freedoms are guaranteed to all without distinction
property, it would be absurd in this case, having regard to the nature
joint stock company, and the petitioner does not claim it.
Neither of Art. 26 of the International Covenant on Civil and Political Rights,
respectively. of Art. 14 of the European Convention can not be inferred that the resolution
position of shareholders, according to the criterion of ownership
nine-tenths of the shares could be, with regard to the consequences described above, considered
unreasonable and biased. Significant terms of application of the prohibition of discrimination
is that the Commercial Code, in terms of defining the principal
shareholders and minority shareholders does not provide exemptions.
Possibility to perform a forced buyout principal shareholder can not be considered
unjustified advantage, because it is based on rational and objective
reasons (see above). Likewise, there can not detect the existence of unequal status
comparable groups of minority shareholders in terms of equal opportunities to apply their
shares the same extent as it can make
under the same conditions (defined by law) other comparable group
( other) minority shareholders (to compare. finding Pl. US 38/01, Collection
Judgments and Decisions of the Constitutional court, Vol. 29, p. 355, no. 87/2003 Coll.).
Impacts of legislation are forced to purchase all minority shareholders
same. Similarly, in such a situation can not be considered interference in property rights
obligation to make a takeover offer if
achieve a certain level of the share capital of the company. In this context,
however, the Constitutional Court emphasizes that the balance
legal regulation of the position of minority shareholders would help if the legislature
also adjusted their right to make in such a situation, the main shareholder
had not only the right, but also the duty to request to redeem their shares
(ie. sell-out, respectively. tendering obligation).
63rd Similarly, it is necessary to approach the question of maintaining Article. 11 paragraph. 1
Charter, under which the ownership right of all owners has the same statutory content and
protection. There can not be seen even differences in content rights owners
shares. Decision-making of the General Meeting, based on ownership shares
certain nominal value, fully in line with the nature of this type
business association under Article. 11 paragraph. 1 and Sec. 3, Art
. 20 paragraph. 1 and Art. 26 Sec. 1 and Sec. 2 of the Charter. Provides the Commercial Code
varying degree of protection of minorities in the company depending
Importance received decision (unanimity, nine-tenths, three-quarters
two-thirds majority - § 183i. 1, § 186 of the Commercial Code.
Code.) And binds to further mutual ratio of the outstanding shares (§ 66a of the Commercial Code.
Code.), not against it from a constitutional perspective, not argue.
64th Compliance with the rules of Article. 11 paragraph. 1 of the Charter of equal protection of property rights
assessment can only be rated as owners
in the same situations. Therefore, not legal means of protection from other
areas (eg. Real estate ownership) mechanically transmitted to the protection
share ownership. The petitioner, however, argues only
comparing the legal position of the majority shareholder and minority shareholders, but that is only one angle
evaluation (sub 64). Equally important is the assessment of the position
minority shareholders in similar situations, but such arguments
proposal lacks. Therefore, for further evaluation of individual objections
petitioner, the Constitutional Court pursuant to Art. 11 Sec. 1 of the Charter and watched
to the position of minority shareholders in the revocation
stock company with the transfer of assets to the main shareholder (§ 220p Com. disciple.).
65th Most of the petitioner's objections relate to the alleged lack
protecting the rights of minority shareholders during the preparation of a forced buyout,
particularly in terms of protection against abuse of rights by the main shareholder
. The Constitutional Court must first emphasize that the allegations
petitioners are of a general nature and should place in proceedings on the constitutional complaint
minority shareholder, would be supported by the facts of a particular case
. In proceedings on abstract review of the constitutionality of the law
However, the Constitutional Court acts in a different position. According to § 68 para. 2 of the Constitutional Court, except
competence and procedural issues
evaluates primarily the content of the law in terms of its potential conflict with the constitutional
order [Art. 87. 1 point. a) of the Constitution], but its possible implementation
companions or application Czech National Bank and courts in practice.
Therefore, it is necessary when assessing such objections noted that the Constitutional Court
does not excluded the possibility that interference with the constitutionally guaranteed rights
partners as well as themselves as joint-stock companies
legal persons of private law, may or that this is happening.
It is not the subject of these proceedings. To repeal the law can only occur if
when applying institutions have already used a different interpretation (eg. Decision Ref. No..
Pl. US 48/95, no. 121/1996 Coll.), So that constitutional obligation
violate a constitutional interpretation does not come into consideration. The mere possibility of another interpretation
itself still does not constitute a justification of the proposal or unfoundedness
(cf. Resolution Pl. ÚS 6/03, Vol. 30, p. 579). The Constitutional Court must therefore
respect the type of procedure in which the constitutionality of acts (abstract
inspection, concrete inspection at the initiative of the court under Art. 95
paragraph. 2 of the Constitution or accessory assessment pursuant to § 74 of the Law on the Constitutional
court when the alleged infringement has occurred and res judicata).
66th The petitioner's arguments regardless of the overall scope of the proposal (58
parties and more extensive attachments) can be summarized in a few basic points
(sub 63), which first and foremost objection performs editing and procedure for determining compensation for
compulsorily purchased by shares. As mentioned above, the registration proceedings
question is appropriated and dealt with in proceedings under
sp. Nos. Pl. US 43/05. The petitioner argues especially the fact that
price is determined on the basis of an expert opinion, which was designated by the principal shareholder
. In the first place, therefore, the Constitutional Court addressed the issue
way of defining the amount of consideration. Constitutional criterion is Art. 11 paragraph.
4 of the Charter. In this case, having regard to what has been stated above for
nature of joint-stock company, the nature of the shares and the nature of law forced
purchase, must be based on Art. 4 par. 4 and look at the substance and
sense of ownership of the shares. As the Constitutional Court already mentioned
resolution file. Ref. IV. US 324/97, ownership of shares is associated with a certain
risk. Constitutional imperatives of protection of property and possible compensation for lost property
therefore obviously different in the case of protection
ownership of the property used for housing, savings in the bank or just in case
ownership shares. The owner of shares must therefore reckon with the fact that
it is an investment that is intrinsically linked to the right to
business (before the law association), and therefore also
Business risk. It can bring multiple profit, as
may be totally disabled; all in a different time period. Therefore
in the general legislation very difficult to identify all the possible criteria for determining
Commercial Code because in several places chosen the phrase "reasonable" price, which subjected the petitioner
criticism when he emphasizes the ambiguity
fundamental attributes of compensation for the shares, as the concepts of "reasonableness" and
'equity consideration "are in his opinion subjective.
With this opinion, the Constitutional Court did not agree. The Commercial Code uses the term
in connection with the share price at multiple locations (§ 156 paragraph. 4, § 183c paragraph
. 5, § 183 g paragraph. 1, § 186a. 4, § 190C par. 1) . Both
concepts contrary respect the possibility of statutory regulation. Legislation forced
buyout talks about the adequacy of the price (§ 183k paragraph. 1 and § 183 meters paragraph. 1
Com. Code.) In connection with its determination. In § 183j paragraph. 2 Com.
Act. it is compulsory to submit the invitation to the General Meeting in
notice of the holding of the comments of the Board as to whether the amount
consideration for the fair. Regardless of legitimate doubts about the way
legislative opinion of the Board (to
Štenglová, I .: Commercial Code. Commentary. 11th Ed., CH Beck, Prague
2006, p. 672), there is no doubt the commercial Code envisages that the price
may be derogated from the conception of the company's bodies.
Adequacy indicates the requirement to take into account all relevant circumstances relating
a forced buyout. This means that from the perspective of law preclude
was determined subjectively. It just might lead to a decision on the unconstitutionality
such legislation. That the Commercial Code
understands this concept as a guide to objective assessment, it follows from the fact that it counts
with its judicial review; price fixed not on the basis of objective criteria
it was beyond judicial review. Finally
unconstitutional exclusion of subjective criteria can conclude from the Act no.
36/1967 Coll., On experts and interpreters, as a requirement of impartiality
expert, his expertise and exclusions in the case of bias (§ 4,
§ 6, § 11). It may also refer to the jurisprudence of the Constitutional Court on issues
bias of experts (eg. The finding II. ÚS 35/03), which in specific cases
define strict criteria for the assessment of expert opinions.
The fact that the cost of the expert opinion shall be covered
major shareholder in itself can not lead to the general conclusion that these reports are already
by defective because the same objection could be raised
if that were paid to minority shareholder.
If the points in the proposal in this proceeding, but also in other countries (cf..
Resolution 2nd Chamber of the Federal Court of Justice on July 25, 2005, Ref. No.
. II ZR 27/03, also expressing sub 32), bad experiences with
some experts, can lead to a flat-rate conclusion that this will
contrary to the requirements of the law on experts and interpreters to follow every
expert. The Constitutional Court is aware that in practice can occur, and also
occurs violations of these rules. That is not a reason for that
was declared unconstitutional legislation that can be interpreted and applied
unconstitutional. For the same reasons, would then have the Constitutional Court annul
eg. Institute custody, expropriation, dissolution of political parties
etc. Precisely because in practice may violate the constitutionally consistent
legislation is ensured the right to judicial protection.
Whether the price is reasonable, it is a matter of professional and unbiased evaluation. Because opinion
redeeming and vykupovaného may diverge, regulates the procedure
review such rates independent and impartial body in the form
Czech National Bank, which would, however, with regard to its nature, not be sufficient.
Therefore, in accordance with Article. 4 and Art. 81 of the Constitution guaranteed protection even
in the form of a judicial decision. Finally, it should be noted that even in other states
not treated differently. E.g. Austrian
latest adjustment (see § 1 Bundesgesetz über den Ausschluss von
Minderheitsgesellschaftern, BGBl. I, no. 75/2006) speaks of "Gewährung
einer angemessenen Barabfindung", thus providing adequate severance
in cash, without providing any further (literally the same thing §
327a paragraph. 1 of the German stock Corporation Act, but certain criteria in
Other provisions). Attempt to find another way to determine the prices in Germany,
based on an irrebuttable presumption of reasonableness in the event that it accepts
least 90% of purchased shareholders failed (see Stumpf, Ch .:
Grundrechtsschutz im Aktienrecht. Neue Juristische Wochenschrift,
vol. 2003, no. 1, p. 9). Therefore, the Constitutional Court in this regard as unconstitutional
Commercial Code not found.
It is a matter of practice, what criteria can develop here. In this regard, it is significant
opinion former Securities and Exchange Commission (sub 27). Also, the phrase "
fair market value" as used in the US is criticized with regard to several possible meanings and
paths to its realization (see Fischel, DR: The Appraisal Remedy
in Corporate Law. American Bar Foundation Research Journal, Vol.
1983, p. 885-898). Therefore court seeks a variety of so-called.
Tests (see point 61), which also changes over time. In this respect, the US
Law stock companies considered key
law of the State of Delaware. His Supreme Court in the landmark
decision states that, regardless of the number of different tests
will accept any reasonable method that is widely recognized in the financial world
[Generally Accepted Techniques Used in the financial community and
the courts - Weinberger v. UOP, Inc. 457 A.2d 701 (Del)
1983 available eg. At www.nyls.edu/pdfs/WeinbergervUOP.pdf where
Court considered the purpose of the merger].
67th Equities, as an expression of a certain share of the property value is
vested. Protection of such forms of ownership, however, is
hardly comparable with immovable property (expropriation), which is based
dogma Art. 11 par. 4. On its value
have a major impact on the market situation and conditions in the joint-stock company (eg.
Called. Starvation small shareholders in the form of non-payment of dividends, the loss
value due to non-tradability, boom within a certain time
period etc.). The fact that this is not a prerequisite for expropriation demonstrate
public interest, contrary to petitioner asserts, means that when
determining the amount of consideration is already the public interest into account. The fact
already been decided by the legislature generally binding manner.
It should be noted that the expropriation in the public interest in terms of the nature of things in a particular
sacrifice required in favor of the interests of the whole, in the case of a forced buy-out, with regard to
just said, the Constitutional Court finds no such reason. It is an economic consideration
redeeming main shareholder, whether he
such a transaction worth. With regard to only the economic dimension of this issue
, reduced investment aspect, but it also means that
example. Unlike expropriation family house disregard
emotional aspects, social relationships and consequences, and
if such aspects are indirectly excluded (pension fund as a minority shareholder
environmentalists in the company, which is a threat to the environment
). Relationship to share in the fortune of this evaluation
beyond. It is an uncertain investment that should bring profit,
however due to the nature of the joint-stock company is an investment that
profit may not be guaranteed.
68th What it is reasonable price can be determined by an expert and independent sides
procedure under the control of the Czech National Bank with
judicial review. Given the circumstances of purchase, associated with
interference in property rights, the adequacy of the price quoted shares
can never remain below market prices. From this perspective, it is necessary to turnover
"different amount of consideration" in § 183k paragraph. 1 Com. disciple.
understood only as a threshold below which in the context of judicial review can not go.
In other words, the court can not contested the amount of consideration to minority shareholder
reduced. The same procedure applies to the Czech National Bank pursuant to §
183i. 5 Com. disciple. In terms of Article. 11 paragraph. 1 of the Charter would be another interpretation
disadvantaged minority shareholder (reformatio in peius). Therefore, it is necessary
§ 183j paragraph. 4 Com. Act., according to which the draft resolution to the General Meeting
not deviate in determining the amount of compensation according to documents
according to § 183j paragraph. 6 Com. Act., to interpret this in a constitutional manner
. Otherwise it would be abolished as unconstitutional.
Expert opinion in terms of proportionality of the interference protection
serve the majority shareholder and principal shareholder against him can not go to court
; It is only allowed minority shareholders. Offers If the main
Shareholder more, it is a matter of its business decisions. As has been highlighted above
(sub 59), the decision of the majority shareholder does not need to justify
because it is based on the assumption that despite the increased costs
his investment in the purchase of the remaining shares worth it. And that's not because
that would get them at a better price, but also because, given the circumstances
may apply a higher price, which will have a Board of
terms of the overall situation of the company, doubts ( § 183j paragraph. 2 Com.
Act.). Law individual criteria for assessing the adequacy lay
can in no way exhaustive manner. It's a matter of professional
assessment by the financial and economic instruments of qualified
Czech National Bank (see the former Securities Commission no.
STAN / 13/2005 dated November 9, 2005 issue of criteria for adequacy and documents | || proving reasonableness. it is noted that this opinion was not
subject of proceedings before the Constitutional court, as well as the practice of the Czech national Bank
69th To determine a reasonable price law establishes a procedure that is also
objected by the petitioner. Under § 183 meters paragraph. 1 Com. disciple.
authorized persons have the right to consideration in cash, the amount of which determines
major shareholder; The main shareholder demonstrate the adequacy of the consideration
expert opinion, not older than three months at the date of receipt of the request
according to § 183i. 1 Com. Act., and the amount of which shall examine the Czech National Bank
. Expert picks and also pays the costs of its activities
main shareholder (§ 183j paragraph. 6 Com. Code.). In this context, the need
stressed that impartial expert determination of reasonable prices
must be considered as part of protecting the property rights of the minority shareholder
(sub 67). Therefore, it must have a status comparable to other owners
in a similar situation, as it follows from Art. 11 paragraph. 1 of the Charter (right to equal protection
70th In this case, the Constitutional Court to assess whether this
manner provided no protection (sub 68 and 69), and whether the level of protection
comparable with other owners in a similar position.
As a measure of the Constitutional Court could use the procedure for cancellation of stock
company with the transfer of assets to the shareholders as assumptions
transfer are the same as in the case of a forced buyout. In this case, however
§ 220p paragraph. 2 Com. disciple. provides that a major shareholder is obliged
provide other shareholders with adequate cash settlement, which
above must be supported by the opinion of an expert. While referring to similar
applying the provisions of § 59 par. 3 and par. 4 of the Commercial Code. disciple.
According to this provision of adequate settlement amount determined by the expert opinion
processed "independent company appointed for the purpose
court". The Constitutional Court therefore had to consider whether this difference in the method of determining
expert is not in case of a forced buyout enough
discrimination that violates the right to equal protection under Article
. 11 paragraph. 1 of the Charter.
71st The Constitutional Court concluded that this requirement imposed
main shareholder, although it may complicate the position of minority shareholders, but not
so seriously, in order to talk about the unconstitutionality of this
adjustments. Already it has been pointed out above, an expert in processing
professional judgment and impartiality necessary. That in itself would have been
however, totally inadequate if it is not completed obligatory
supervision of the Czech National Bank pursuant to § 183i. 5 in conjunction with appropriate use
§ 183e Com. disciple. This procedure applies to
joint stock companies with listed and unlisted securities
participating securities, otherwise there would also be a violation of the rules the same protection under Article
. 11 paragraph. 1 of the Charter. Although in the case of the Czech National Bank is no longer with
reference to its position, assumed the desired distance from associates
not yet a body which meets the requirements of Art. 4 of the Constitution and Art. 36
Charter. Because it is the protection of fundamental rights, not integration
Czech National Bank in the process of forced buyout constitutional terms
sufficient. However, since § 183k Com. disciple. regulates the procedure in terms
judicial protection of minority shareholders, the Constitutional Court considers that the mere fact
selecting an expert main shareholder is indeed itself
problem, but that is offset by other measures by the state.
However, there is no doubt that there is a need to consider alternative procedures already
because the task of regulation should be to the maximum extent
eleminovat possibility of litigation and the treatment they often end
lead. However it must be stressed that even in Germany, whose treatment is
petitioner refers, in practice the situation is such that an expert establishes
Regional Court, according to the company headquarters rule at the proposal
main shareholder, and the case has not challenged this procedure (cf.
critical judgment of the Federal Court of Justice on September 18, 2006, file no. Ref. II ZR 225/04
, in particular paragraphs 14 to 17), although it is a very common complaint
72nd The petitioner also forced buyout legislation complains that
a party to a prior consent of the Czech National Bank pursuant to § 183i. 5
Com. disciple. only the main shareholder. With regard to the separation of the Czech National Bank
from associates and nature of the proceedings, where it is not reasonably possible to ensure participation often
thousands of minority shareholders, one of which is part of the so-called.
Anonymous (see Kotásek, J .: Squeeze anonymous shareholders .
Journal for legal Science and practice, vol. 2006, no. 3, pp. 258-259), it can hardly be considered
itself unconstitutional, when the Czech national Bank on a forced buyout of
administrative proceedings directly does not matter (only in this case
this would be the equivalent of expropriation). It is the responsibility
General Meeting. Czech National Bank in the position of administrative authority in
proceedings under § 183i. 5 Com. disciple. may cause
responsibility of the state for damages under the Law no. 82/1998. Likewise objection petitioner
invading fiction positive opinion of the Czech National Bank will not stand
terms of constitutional order. It is a not uncommon
measures against inactivity of administrative authorities. This adjustment does not preclude the possibility
minority shareholders go to court, because the amount of consideration is
always subject to judicial review, regardless of whether
State fulfilled its obligations in terms of its supervision of the preparation of a forced buyout || | through the Czech national Bank or not. In addition, this
provisions (§ 183e paragraph. 9 Com. Code.)
Petitioner was not even challenged in the statement of claim his proposal.
73rd It was also necessary to examine the remaining objections concerning the determination
amount of reasonable compensation. In the first place there petitioner claims
insufficient guarantees payment of the consideration for the shares purchased by (sub 20)
when even adding modifications to the provisions of § 183i. 6 Com. Act., according
his opinion, does not eliminate entirely legitimate to payment of an amount
consideration, provided the main shareholder, has been ensured.
With this caveat, the Constitutional Court did not agree. Mandatory deposit
resources to cover contractual obligations, although nowhere
constitutionally required, nor is quite common in the legal regulation, in this case
however, be assumed that there is no legal relationship established || | contractual agreement, but ownership of the shares transferred from
law. Even this obligation therefore forcing the principal shareholder, to consider whether
reaches the compulsory purchase, because it is naturally associated with increased
costs for the services of a bank or securities dealer. Therefore, it is necessary
constitutional terms to consider this adjustment to be sufficient
notwithstanding the responsibility for its failure, including possible criminal responsibility
. It should also be noted that the depositing of funds pursuant to § 183i
paragraph. 6 Com. disciple. comes after the confirmation of the convocation
Czech National Bank pursuant to § 183i. 5 Com. disciple.
Funds are therefore secured after a possible increase in the consideration process according to §
183e paragraph. 8 Com. disciple. The legislature has the opportunity while this adjustment
change, if at all, such an event occurred, which hypothetically
trying to construct the petitioner.
74th Finally, we should mention the objection of lack of penalties, which in the opinion of the petitioner
legislation does not motivate the majority shareholder to fair
behavior because for conduct contrary to morality is not penalized
(sub 12). His only risk is that you might have to pay
several shareholders who have sufficient resources to lead
dispute for review before consideration formalistically minded judges.
Not respected the requirement of legality, nor the requirement of proportionality in
transfer of shares when proceedings to review the legality of measures
Transition, both when setting and reviewing the consideration.
Even with this objection could not be identified because the Constitutional Court sees
reason for which it would be necessary to provide additional special means
liability for breach of duty of the majority shareholder. In terms
constitutional order is essential that there is no means provided
When use is the main shareholder of the possibility of forced buyout of shares, which he
law providing for the above reasons, it acts legally and does not abuse its
rights. The rules ban abusive partner according to §
56a Com. Act., with the possibility of proceeding under § 131 of the Commercial Code. disciple. (
Invalidity of resolutions of the General Meeting), of course, also apply to forced
purchase of shares. Misuse, however, can not alone be permitted by law
repurchasing shares after reaching the share ownership
participating securities of the company. Can not say that in the context of
business environment in the Czech Republic such situations occur and that
in comparison with developed economies, particularly the use of means of judicial protection
quite sufficient. Only their use presents in these countries
real image of corporate law, which can not be without the case
not understand [Conard, AF: The Law of Corporations.
Michigan Law Review, Vol. 1973, no. 4, p. 648, notes that no case has been
company right miserable scrap (sad rag)]. Also, you can not deny that
legislator may seek additional funds (cf. The latest research
eg. Reporting responsibilities to the dissolution of the study, Miller
SK, Greenberg, PS, Greenberg, RH: An Empirical Glimpse
into Limited Liability Companies: Assessing the Need to Protect Minority
Investors. American Business Law Journal, Vol. 43/2006, no. 4, p. 609n.,
reporting solutions. 639-646) however, only the effective use of judicial protection
may have a preventive effect in terms of attempts to abuse
position in the company. This is not too frequent phenomenon
not only in our country but also in other countries where also check abuse remains
more options. This is related to the fact that even the law itself admits
forced to purchase and no need for such a transaction objectively justified (to Germany
for example. Kort, M .: Squeeze-out BESCHLUSS: Kein Erfordernis sachlicher
Rechtfertigung und Bloss eingeschränkte Rechtsmissbrachuskontrolle.
Zeitschrift für Wirtschaftsrecht, vol. 2006, no. 33, esp. pp. 1520n.
for Austria and Althuber, F. Kruger, a .: Squeeze-out in Austria. || | Aktiengesellschaft: Zeitschrift für das Total capacity Aktienwesen, Vol. 2007
no. 6, p. 197n.). The objection of abuse, the Constitutional Court has noted that in such a situation
basically on the desires of the majority shareholder does not matter, because
abuse would have to already be an effort to win those required
90%. Even in the US, regardless of the possibility of action for damages is too large
does the success of such procedures with regard to expenditure on
expertise, connoisseurs and especially attorneys (Seligman, J .:
Reappraising the Appraisal Remedy. George Washington Law Review, Vol.
52/1984, pp. 860-864).
75th The petitioner pointed out in this connection also the fact that it is not regulated
another aspect of determining the amount of the consideration and possible abuse
forced to purchase, ie. Lack of determination of default interest to the fulfillment
payment of consideration under § 183 meters Com. disciple. One can not conclude that such an obligation must be
each case explicitly enshrined
due to the fact that this is still a private relationship. This in turn was necessary in
if he would like the law to exclude the application of legislation commercial
obligations for relationships between partners [eg. § 369
Com. Act., respectively. § 340 paragraph. 2 Com. Act., in conjunction with § 261. 3
point. a) Commercial. disciple.]. Therefore, in case of delay in the performance approach
default interest (as the price of money to which it is entitled by law) by
§ 1 of Decree no. 142/1994 Coll., Laying down the amount of interest on
arrears and default charges according to civil Code, as amended
Regulation no. 163/2005 Coll. This can currently be seen as a sanction against
principal shareholder, if default interest while in private law
considered a sort of general compensation (cf.. Knapp, M.,
Plum, J. et al .: civil law. Volume 3. 3rd ed., Praha 2002
p. 74, 125, 131).
76th Regarding objections lack of judicial protection, it must be seen that
Differences between countries with regard to the treatment of other aspects
forced buy-out, lead to a different anchoring the right to judicial protection.
The actual review of a decision to carry out a squeeze-out is limited to the above-mentioned findings
practice (sub 79 and 80) in terms of protection against possible misuse
. Determination of the 90% threshold has doubts in this regard excludes
and therefore the limits of judicial review on other issues acceptable. This experience proves
states where these things can be judicially challenged. For
UK's statement had a considerable number of lawsuits, which have been totally unsuccessful
(already classical work by Davies, PL:
Gower and Davies' Principles of Modern Company Law. 7th ed. London 2003, . 746
is able to cite just three examples where a 90% shareholder of law rather
abused than used). Therefore, the number of proposals gradually declined regardless
that Art. 430 of the Companies Act 1985 supported the submission of such proposals
because it should be a procedure without obligation minority shareholders
pay the fees, unless the proposal unnecessary inadmissible or
kverulantský (vexatious). The same treatment basically took a new
UK Companies Act 2006, Art. 983. Similarly, in the US key ruling
Weinberger v. UOP, Inc. (see point 66) states that if it is not so in the case
. Test complete fairness (Entire fairness test includes a review
fair treatment and fair prices) for detection of fraudulent conduct
remains essentially the decision only a question of price.
Continental law system then most of the requirements, which concludes
case law in the US states in the form of general requirements by law.
From this perspective, it is necessary to evaluate the petitioner's objections in relation to
judicial protection of minority shareholders, in case of absence of the possibility
preliminarily review the legality of the procedure for the realization of the right to purchase.
It is noted that the question of constitutionality of incorporation (§
200d paragraph. 3 of the CPC.) Was allocated in a separate proceeding conducted under file
. Nos. Pl. US 43/05.
77th Defects review proceedings under § 183k Com. disciple. petitioner also includes
especially unclear definition of the circle of participants, type of procedure, the complaint
design and termination of the right to invoke the unfairness of performance (see detail
sub 19). In relation to the first three objections, the Constitutional Court finds that
to the interpretation of common law. It is a matter of judicial practice that any alleged or actual
ambiguities resolved. If the petitioner refers to
different positions of the two high courts in terms of the nature of the proceedings, thereby
status of its participants, it is for the Supreme Court to
in the performance of their tasks in unification such questions solved.
The Constitutional Court can not fulfill this task. This could exceptionally be the case, ^ e
by the Supreme Court ceased to fulfill this role (cf..
Procedure of the Constitutional Court in the absence of a Supreme Administrative Court in relation to the case
regional courts in administrative proceedings). The Constitutional Court may
such address the question then, says if the applicant that one of
interpretive possibilities is unconstitutional. If, however, argues only that there are two different possibilities
interpretation, but one deemed unconstitutional, it does not open
for the Constitutional Court the possibility of intervention. Duty of the court's order
provide protection of fundamental rights under Article. 4 of the Constitution by electing
interpretation of constitutional, respectively. In case of doubt, turn to the Constitutional Court
. The same applies to the petitioner's objections that the provisions of the law
forced buyout inconsistent with other provisions of the Commercial Code
78th The petitioner also alleges failure to respect the principle of equality of arms,
protect the weak and access to court. It states that even if the action was
after minority shareholder rights, restitution original state
may not occur if there is a fait accompli, created
registration in the commercial register. The court, which will decide a matter
will be created based on the state and because of the principle of legal certainty and
protection of the rights of third parties will tend proposal to review the resolutions of the General Meeting
refuse. Therefore, there should be a review before
transfer of the ownership rights as in many other states. In the Czech Republic
this review is excluded under § 131 paragraph. 3 Com. Act.,
because with the help of § 131 of the Commercial Code. disciple. Always looking for a reason to stop
proceedings or dismiss the action.
In this context, however, the petitioner does not specify the other hand, what is actually
regulation in § 131 paragraph. 3 Com. disciple. unconstitutional, and finally even
proposing its abolition. The actual § 131 paragraph. 1 and Sec. 2
Com. disciple. yet does not preclude cancellation of the General Meeting resolution on the transfer
participating securities to the main shareholder. Likewise
appellant ignores the procedure minority shareholders pursuant to § 131 paragraph. 4
Com. Act., which can be applied regardless of the application of § 131 paragraph.
3 Com. disciple. In any case, this procedure can not be challenged
Institute itself repurchase of shares which is based directly by law, as well as the absence
minority shareholder in the registration procedure.
The Constitutional Court considers that such legislation designed, ie. Inability to participate
shareholder register proceedings, with reference to these other options
exercising his rights in different separate proceedings from the perspective of a
proportionality in the competition standing ownership and being derived from them
other rights of the main shareholders and minority shareholders, as well as their
nature of things arising different interests, their
constitutionally acceptable justification, as has been stated many times (the first time | || resolution file. Ref. IV. ÚS 324/97, Collection of Decisions of the Constitutional court
, vol. no. 10, p. 365, also sp. Ref. IV. ÚS 720/01).
Impossibility to challenge the validity of a resolution of the General Meeting inadequacy amount of performance
(§ 183k paragraph. 4 and paragraph. 5 Com. Code.) Can be considered a measure which does not
design rights and forced purchase is rational, because | || prevents this way, in fact, instituted judicial review itself
Institute buyout, though each failure of the main shareholder in
management (eg. 1000 CZK instead of CZK 990 per share) meant a declaration of the General Meeting
invalid with consequences for the preservation of the rights of third parties and
legal certainty (cf. § 131 paragraph. 3 Com. Code.).
79th According to the petitioner is not in the context of reviewing the amount of consideration
respect the principle of protecting the weaker party, because when this
reviewing a minority shareholder under § 183k Com. disciple.
gets the word only when he has opposed obstacles such as expert advice, opinion
Czech National Bank and registration in the Commercial Register without
yet to participate in the proceedings or be a party to the proceedings. These objections
themselves can not be considered a breach of equality of the parties in accordance with Article
. 37 par. 3 of the Charter and the applicant nor to such a breach does not show.
The "obstacles" are merely prerequisites perform a forced buyout.
Likewise, they can serve to protect the interests of minority shareholders.
The Constitutional Court only notes within the meaning of the above analysis
nature of a forced buyout of shares that equality of parties before the court involves
equality in their procedural rights, not the position in the stock
company. It is derived from the share of the number of shares
identical nominal value and not on the guarantee of procedural equality in litigation
change anything. This also applies to the other objection to the violation - as it is called
petitioner - the principle of equality of arms in the form of a significant information deficit
minority shareholders regarding the status of the company's assets and
probable future economic performance, where the majority of opinions | || based on documentation of the Board. This is a claim that the
an abstract review of the constitutionality of the law can not succeed. These are the specific conditions
conduct of court proceedings, which would be necessary only in the context of
case by case basis (eg. In the context of a constitutional complaint
) prove that the breach of procedural principles occurred.
80th As another defect judicial protection petitioner sees the principle that the court is
in the review process controlled solely proposal prosecutor who has little
information enabling him in a short period of time quantifying the correct amount
consideration. He argues that this example. In Germany are not forced. Moreover, there is a threat
pay the costs one who succumbs to the dispute. Court
fee will be yet higher, the higher will be the amount in controversy
consideration. The Constitutional Court states that foreign legislation
may be related to the minority shareholders friendlier, but that
automatically does not indicate that domestic legislation is in conflict with the constitutional order
. The argumentation foreign legislation in this direction
Not suffice, moreover, would require a much more detailed analysis than mere
voucher without further argument (see in particular the comments to § 4 and § 15
in: Münchener Kommentar zum Aktiengesetz. 2nd ed., Vol. 09.01, § 327 - §
327f. AktG. WpÜG SpruchG. Munich 2004). It can certainly be used to further amendments under review
Institute. In terms of guarantees judicial protection under Article
. 4 of the Constitution and Art. 36 para. 1 of the Charter, but in this direction
essential that judicial protection is ensured, not whether
providing preventative or not. State has some room for
consider whether the terms of the possibility of action forwardly own
decision of the General Meeting. Equally
entitled to decide on the conditions under which protection will be provided; However, it must be set
so, in fact, its use impossible. Must see that
moving judicial review to the final phase also involves considerable danger
principal shareholder, which may be due to him unfavorable decision
suffer far greater losses than in the case of decisions in early stage
buyout. Court fees, which in this context
petitioner mentions, also can not be considered as an obstacle, although
are states where under certain conditions from the minority shareholder
not required (Art. 983 of the Companies Act 2006 before Article .
430 of the Companies Act, 1985 and after its pattern of § 15 para. 2 of the Gesetz über das
gesellschaftsrechtliche Spruchverfahren. BGBl, Vol. 2003, Vol. I., amount
25, p. 838). It is the legislature that will consider such a possibility with
Noting that fulfills certain court fees
regulatory functions in relation to the increase in litigation with regard to the structure
minority shareholders in the Czech Republic. Furthermore, the claim that this modification is
major shareholder encouraged to value
consideration set as low as possible, even in general stand. The
below that price would have been determined (with regard to expert evidence and opinion
Czech National Bank thus it can not be assumed), the
greater risk of failure in court proceedings is issued, including the payment of court costs
81st Also, it can not agree with the objection of the rights of
minority shareholders who did not turn to the courts. State can not be allowed to
severity that did not protect anyone who looked at him with a request for protection
not turn. The Constitutional Court is convinced that the emancipated individual
living in a free democratic society, should be spared excessive
protektorských State intervention and an expression of his maturity is just
her ability to guard their rights in the spirit of vigilantibus
iura scripta sunt, assuming of course that he has become
provide adequate resources for their protection. Therefore, this approach was not in principle
found unconstitutional. Forced to purchase the right of the main shareholder, who
its business plan may not be justified. It is for its assessment, whether the purchase makes
(sub 57). However, they must reckon with the fact that it will buy back
shares of minority shareholders in the amount that will be determined
objective, expert and impartial procedure, not only shares those
who are against the proposed levels of compensation in court to defend.
Well so it must be assumed that the court may decide on the amount of consideration
for each individual plaintiff minority shareholders equally.
Not supposed if this would be our legislation would be challenged
construction of the economic base of a forced buy-out as a form of exercise
fundamental rights owner and entrepreneur. Thus, it should also be interpreted
§ 183k paragraph. 3 Com. Act., which also incomprehensibility
petitioner argues otherwise would not be granted protection
property rights of those shareholders. Nor can it be considered
missing mechanism publication of the court's decision under § 183k paragraph.
3 Com. disciple. an interference with his property rights under Art. 11 paragraph. 3
Charter or the right to judicial protection under Art. 38 par. 2 of the Charter.
Thing is a minority owner in order to guard their rights when
about the possibility of intervention in them is well informed in the Commercial Bulletin under Regulation
Government no. 503/2000 Coll., The Commercial Bulletin, as amended
82nd The petitioner states a number of other objections that example.
Lie in the confusion surrounding the convocation deadline, the lack of time
Preparation for the General Meeting, the lack of reference to § 181 of the Commercial Code.
Act. (See point 16), etc. According to the petitioner, there are also significant
opinions of experts who are completely opposite. In his opinion
legislation is unclear in this respect, vague and confusing and does not meet the requirements
set to rule in Art. 1 of the Constitution. Again what
been said above concerning the role of the Constitutional Court, when interpreting the plain
rights. The petitioner also did not state how they may ambiguities
stating a breach of Art. 4 par. 4, as he claims.
From the point of view of the nature and meaning as a shareholder in the constitutional order was
already explained above, it is a multiple collision of fundamental rights and freedoms.
In terms of proportionality in this case given priority
property rights and the right to the main shareholder (Art. 11 paragraph.
1 and Art. 26 Sec. 1 and Sec. 2 of the Charter) over the right to be a member of
stock company with a 90% major shareholder, with the essence and meaning
minority shareholder position as an investor is maintained.
Adequate consideration in this direction, taking into account the considerations forced
purchase, preserves the value of shares as a special kind of uncertain
investment. Even from this point of view can not be considered Art. 4 par. 4
for a breach to be recalled that the application of Art. 26 paragraph. 1
paragraph. 2 Charter moves under Art. 41 paragraph. 1 of the Charter.
83rd The same applies to judicial protection, which is also preserved its essence
a sense, even though there is no doubt that the legislature could be brought against the minority owners
friendly. The state, however, this form
fulfill their protective function, and in the case law of the European Court of Human Rights
(cf. Sovtransavto judgment in the case against Ukraine Holding of the seventh of 25
2002, no. 48553/99 , § 96) can not say that it failed
obligation to protect human rights and freedoms of individuals in
its jurisdiction. Such a commitment can also mean a positive obligation
which includes necessary measures for the protection of property rights,
even in cases involving disputes between individuals and companies
(with reference to the judgments Airey v Ireland, from October 9, 1979,
Series a no. 32, § 25, and Lopez Ostra against Spain, on December 9
1994, Series a no. 303-C, § 55). This, according to the European Court of Human Rights
means that the state is obligated to regulate the procedure
providing adequate procedural guarantees and thus allow national courts
efficiently and equitably resolving disputes between private individuals. Another
rights of minority shareholders are connected with the meeting (especially
§ 180, § 182 and § 183 of the Commercial Code. Code.), Which is to be decided on the transfer
squeeze. The requirement of fairness procedure
main shareholder is also boosted duty notarial record of the
General Meeting's decision on the transfer of the securities to
main shareholder (§ 183i. 2 and par. 3 Com. Code.) To
which must be accompanied by an expert report and other data. Informing shareholders is
terms of constitutionality adjustments sufficiently secured, and it is
view of the fact that shareholders have the right to inspect and take copies
not only from the reports of the Board, but also from an expert.
Can therefore conclude that the Commercial Code imposes a number of obligations
stock company and the main shareholders to ensure proper
awareness of minority shareholders, and also enables optional
subsequently bring an action for declaratory resolutions of the General Meeting || | as a means also available to minority shareholders to run
procedure of judicial review of the fairness and honesty of the process
main shareholder. As well as provide protection to the rights of lien creditors
(sub objection 10c), though not for the procedure under § 183k
paragraph. 3 Com. disciple. But it is not legislation buyout terms
constitutional order criticized because they are not shareholders, who would
able to attend the General Meeting and exercise there right
decisive vote. This is primarily a relationship governed by the Civil Code.
84th Finally, it should be noted that the legal regulation of forced
purchase of participating securities is not only for the procedure
during its insertion into the Commercial Code and their changes
example of legislation that would not cause a range of doubts
Constitutional nature. You can use the 'constitutional interpretation of these objections
bridge. This does not indicate that in specific cases
not cause interference with the constitutionally guaranteed rights of minority shareholders under Article
. 4, paragraph. 4, Art. 11 Sec. 1, Art. 20 Sec. 1, Art. 26 paragraph. 1 and paragraph.
2, Art. 36 para. 1, Art. 37 par. 3 and Art. 38 Sec. 2 of the Charter.
In this case, however, the Constitutional Court did not review the specific situation in the context of the implementation
forced purchase of participating securities in particular
stock company, but the content fulfillment of constitutional requirements
adoption of the law and its compliance with the constitutional order. In reviewing the individual components
institute a forced buy-out is a task not only
Constitutional Court, but primarily in the ordinary courts (in the sense of Art. 4
Constitution), to provide protection for the fundamental rights of the complainants.
85th Regarding the request for priority review, the draft Constitutional Court
with regard to the rejection of the proposal, which was contained, was its
Chairman of the Constitutional Court
JUDr. own hand