Aktieägare eller styrelsen – vem bestämmer? - En analys av styrelsens lydnadsplikt i förhållande till bolagsstämman med särskilt fokus på svenska offentliga uppköpssituationer

Sammanfattning: The board of directors is subordinated to the shareholders’ meeting as a result of limited liability company’s having a hierarchical organisational structure. This hierarchical organisational structure in combination with the provisions in Chapter 8 Section 41 second paragraph in the Swedish Company Act (“SCA”) e contrario means that the board of directors has a duty of obedience to resolutions by the shareholders’ meeting. This thesis examines the board of directors possibilities to refuse implementation of a resolution pursuant to the SCA and if these possibilities differ in connection with a public takeover situation due to the applicable regulation of takeovers. In particular since questions regarding the board of directors’ duty of obedience were raised in the public takeover battle of Haldex AB. The board of directors may refuse to implement a resolution by the shareholders’ meeting if it is void as being in violation of the SCA, the Annual Reports Act or the articles of association. A resolution that contravenes the SCA may nevertheless be implemented, if the resolution becomes valid as a result of no legal action being brought challenging the resolution within three months. However, nullity resolutions may, as a starting point, never be implemented. Therefore, the board of directors must examine whether the resolution was passed with all shareholders’ consent and which rule or rules that is likely to be contravened. In addition, the board of directors may not implement a resolution that contravenes criminal law, and probably not a resolution that contravenes good practices. Even though refusal to implement resolutions that contravenes good practices, as with resolutions that contravene other legislation, probably needs to be based on the exception for resolutions which manifestly are contrary to the company’s interests. The board of directors may not implement a resolution which prevents them from acting in the manner that the SCA implies. Depending on the knowledge of the shareholder’s meeting and the resolutions harmfulness, the board of directors may refuse to implement a resolution that violates a contractual obligation. An offeree company in a public takeover situation must follow certain regulations for listed companies, such as the Swedish takeover rules. As shown in the case of Haldex, the board of the offeree company must do the same assessment as in a private company. However, for resolutions that contravenes the takeover rules but not the SCA, the board of directors could only refuse to implement such a resolution based on the exception that it manifestly are contrary to the company’s interests. Since violations of the takeover rules may impose sanctions on the offeree, the board of directors could refuse to implement such a resolution. If the resolution also contravenes a provision in the SCA, the takeover rules affect the board of directors’ duty of obedience in such a way that it indicates that they should have a right to refuse implementation of that resolution. Finally, the current legal situation is criticized and proposals de lege ferenda are presented.