Nulitatea convenţiei dintre unii acţionari pentru a decide prin consens în AGA
Nullity of the agreement between some shareholders to decide by consensus at the GMS

Summary/Abstract: The right to vote of a shareholder within the General Meeting of Shareholders of the company (commercial company) is an essential right, which must be exercised freely, in the common interest of the company and its shareholders. From the perspective of the contractual freedom, shareholders may be granted the right to agree, tacitly or expressly, on their vote on a specific, punctual, issue on the agenda of a GMS, but these agreements, limited both in object and in time, it must not affect the general interests as well as the legitimate interests of the company and/or other shareholders. An agreement by which two significant shareholders, one of whom is the chairman of the board of directors, agree on the proposal and election of the members of the board of directors is subject to company-specific legislation. Such an agreement which concerns all the elections within the company, which establishes a permanent and perennial obligation, unlimited in time, is likely to circumvent the provisions of art. 136 1, art. 137 2 paragraph (4), art. 140 1 paragraph (3), art. 126-127 of Law no. 31/1990 and to violate the provisions of art. 128 of the same Law. It is absolutely null and void because of its object and/or illicit cause but also for law fraud. Since, according to art. 1432 of Law no. 31/1990, the board of directors represents the company through its chairman, in case of an agreement regarding the voting right between a shareholder and a person with attributions of representation of the company, it is no longer relevant under the aspect of applying the provisions of art. 128 para. (2) if the person who represents the company acts directly in the name of the company or in his own behalf, and by virtue of his quality as the management of the company.

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