Can a shareholder be represented during an amendment to the articles of association by a proxy?

Proxy at the shareholders' meeting

The provisions of the Code of Commercial Companies unambiguously allow a company's shareholder to be represented at shareholders' meetings and to exercise voting rights - also with regard to adoption of a resolution amending the limited liability company's articles of association - by proxies. However, this right may be limited by the articles of association of the company. The literature presents a view according to which it is possible to completely exclude in the articles of association the possibility of shareholders' participation in the meeting through proxies, which, however, in our opinion, is unacceptable as too far-reaching restrictions on the rights of the shareholder.

However, it should be remembered that a member of the management board or an employee of the company may not be the shareholder’s proxy when amending the articles of association. Considering that the provisions concerning members of the management board of a limited liability company also apply to its liquidators, it should be assumed that when amending the articles of association, a shareholder cannot also be represented by a liquidator.

Additional restrictions on the persons authorized to represent shareholders at the shareholders' meeting may also result from the articles of association itself. Examples of restrictions in the articles of association may include:

1.          making the possibility of representing a shareholder conditional on the proxy possessing certain qualifications (e.g., legal, economic education),

2.          limiting the circle of possible proxies to persons who are the shareholder's family,

3.          exclusion of the possibility of representing a shareholder by a person conducting activities competitive to the company.

The form of the power of attorney

Although an amendment to the limited liability company's articles of association generally requires the form of a notarial deed, the power of attorney to represent the shareholder in this action may itself be granted in writing. Failure to comply with at least the written form, however, results in the invalidity of the power of attorney. The articles of association may provide for a more rigorous form of the power of attorney, (for example, the requirement to maintain the form of a notarial deed). However, it is not possible to relax the requirements for the form of a power of attorney.

Paweł Dymkowski