Tvångsinlösen av minoritetsaktier och avtalade förhandsavståenden - rättsekonomi och egendomsskydd

Sammanfattning: A majority shareholder’s right to enforce an acquisition of the minority shares in a share company (Sw: “aktiebolag”) is protected by Swedish law. The protected right to do so entails that a majority shareholder, provided that certain prerequisites are met, is entitled to acquire the minority shares regardless of the minority shareholders’ willingness to sell. Thus, if the prerequisites of the provision are met, the majority shareholder can complete the transaction single-handedly. There is a comprehensive discussion in the legal doctrine regarding the possibilities to restrict the majority shareholder’s right to force an acquisition through a Shareholder’s Agreement. The legal provision itself, as well as the preparatory works, have left this issue open to interpretation. It was somewhat highlighted in a Supreme Court case from 2011 that the possibilities to do so are limited but the verdict has since been debated and legal authors have pointed out that the case law may result in unwanted consequences for corporate law. A different issue regarding the majority shareholder’s right to enforce an acquisition of the minority shares, seemingly scarcely discussed by the legislator or law enforcers, is its compliance with the constitutional protection of property. The Constitution of Sweden, The EU Charter and the European Convention on Human Rights provides that there are limited possibilities to restrict the right to individually owned property. Any restriction in the protection of property must be a requirement to secure another interest worth protecting in order to prevail. The purpose with the majority shareholder’s right to enforce an acquisition is to enable a better national economy by facilitating beneficial circumstances. This appears to be an interest worth protecting. However, to acknowledge this fact, it’s necessary to discuss how and to which extent the economy is improved by the corporate provision. If the economy can have positive effects without the corporate provision to acquire minority shares without consent from the owners, or an alternative one, it suggests that the prerequisites required to restrict the right to individual property aren’t met. This would mean that the provision is in violation with The Constitution of Sweden, as well as an unmotivated restriction in the principle of freedom of contract.