Wykluczenie akcjonariuszy mniejszościowych ze spółki (tzw. squeeze out) w prawie europejskim, niemieckim i polskim. Analiza prawnoporównawcza z uwzględnieniem aspektu konstytucyjnego
Exclusion of minority shareholders from a company (so-called squeeze out) in European, German and Polish law (legal comparative analysis taking into account the constitutional aspect)

Summary/Abstract: If the view were true that the Constitution imposes an absolute prohibition on depriving a shareholder of the right to participate in a given joint-stock company against their will, it would have to be assumed that the adoption of a resolution on the dissolution of the company is possible only by unanimity, or – alternatively – make the admissibility of the liquidation of the company dependent on important reasons, subject to control by the court. In such a case, also questionable would be the constitutionality of the provisions providing for the adoption of a resolution on the conversion of a joint stock company into a partnership (Article 575 CCC) or into a limited liability company (Article 577 § 1(1) of the CCC) by a majority of 2/3 of the capital represented or by a majority of 3/4 of the votes representing at least half of the capital, respectively.Precisely because of the regulation of Article 418 CCC the de facto exclusion of minority shareholders as a result of the sale of the entire enterprise of a joint stock company to the majority shareholder or its subsidiaries, in conjunction with the subsequent liquidation of that company, must now be regarded as an impermissible circumvention of the law, i.e. of the statutory requirements for the compulsory exclusion of minority shareholders provided for in this regulation.The restriction of the ownership right of minority shareholders justified by the necessity to take into account the interest of the majority shareholder and the joint-stock company itself should be regarded as justified, firstly, in the light of the regulation of Article 64 (3) of the Constitution, according to which the ownership right may be restricted only by way of a statute and only to the extent in which the restriction does not violate the essence of this right, and secondly – in the light of Article 31(3) of the Constitution, which allows for the establishment of statutory limitations on the exercise of constitutional freedoms and rights only when they are necessary in a democratic state, among other things, for the protection of the rights and freedoms of others (the so-called principle of proportionality). The essence of a minority shareholder's property right can only be said to be infringed when, as a result of their exclusion from the company, they are not guaranteed payment of the full economic value of their shares.In the case of ownership of shares belonging to minority shareholders, its limitation is justified by the interests of the majority shareholder, the nature of the joint stock company and the specificity of the shareholding right incorporated in the shares. Given the de facto limited nature of the rights available to minority shareholders, their exclusion from the company will not constitute a disproportionate interference with the essence of their ownership rights, provided that they are assured payment of the equivalent of the market value of their shares.The relevant application of Article 312 § 8 CCC to the situation of exclusion of minority shareholders means that, in the event of a disagreement on the value of the shares between the expert and the minority shareholders, the latter may apply to the court to resolve this dispute or, alternatively, to appoint a new expert. Such an interpretation of Article 312 § 8 CCC applied in a squeeze out situation will make it possible to make this provision an instrument for the protection of excluded minority shareholders, creating the possibility to subject the correctness of the valuation of their shares to judicial review even before the decision on exclusion is taken.In principle, the institution of compulsory buyout of shares should be regarded as reconcilable with the constitutionally protected right to property, provided, however, that the standardisation of this institution guarantees that excluded minority shareholders receive the actual value of the compulsorily purchased shares. The squeeze out regulation should therefore contain guarantees of both a substantive and procedural nature, which will guarantee the correct valuation of the shares and the possibility of verifying it at the request of the excluded shareholder. These guarantees are: firstly, a valuation by an expert independent of the redeeming shareholders; secondly, a procedure allowing the excluded shareholders to ask a court to review the purchase price setThe Polish regulation in Article 418 CCC, which expressly excludes its application to public companies (Article 418 § 4 CCC), has little in common with the model [of the “squeeze out” institution, i.e. allowing full control of the company, as provided for in Directive XIII]. Therefore, invoking European law to justify the compulsory buyout construction adopted in Article 418 CCC does not seem justified.In accordance with the intention of the European legislator, and in line with the squeeze out model adopted in most EU countries as an institution of capital market law rather than company law, the Polish legislator should limit itself to its regulation [in the Act – Law on public trading in securities], at the same time repealing Article 418 CCC, which, referring in a “cascade” manner to the provisions of Articles 417 and 312 CCC, is unclear and raises doubts from the point of view of adequate protection of the interests of “squeezed out” minority shareholders.

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