A new decision in a commercial case has been issued by the Supreme Court of Cassation, clarifying the registration of missing (not taken) decisions in the Commercial Register due to the circumstance that they were voted on and adopted by individuals who are not shareholders in the company.

The Supreme Court judges ruled on a case where the meeting minutes of a general assembly listed individuals, none of whom were shareholders, yet they voted to approve the shareholders’ agreement.

The Supreme Court of Cassation has determined that the adoption of a company agreement under such a flawed procedure constitutes a circumstance that does not exist in the legal realm. Therefore, registering the protocol with such a decision in the Commercial Register amounts to registering a non-existent circumstance. The court points out that there is no legally valid intent to adopt such a decision. Accordingly, the decision should be treated as a missing decision under the interpretation set out in Interpretative Decision No. 1/2002 of the General Assembly of the Supreme Court of Cassation, even though the latter does not explicitly address this specific type of defect in the decision-making procedure.

In this regard, the Supreme Court judges further state that defense against such decisions entered in the Commercial Register should be sought not under Article 74 of the Commercial Code, but under Article 29, paragraph 1, proposal 3 of the Law on the Register of Legal Entities, based on the “non-existence of a registered circumstance.”

If you need legal assistance regarding entries in the Commercial Register, please feel free to contact us.