Klander och nullitet – aktieägares skydd mot felaktiga stämmobeslut

Sammanfattning: The general meeting is the top decision-making body in a Swedish limited company and the only body where the shareholders have power to influence the acts of the company. The kind of resolutions the general meeting may decide upon and how they shall be decided is regulated in detail, in order to protect interests of the shareholder minority and the creditors. However, a competitive trade and industry also requires efficient and energetic companies. These are, in some cases, contrarious aims and goals. Hence, the legislation is a result of the weighing of those interests. In this essay I will examine the shareholders’ right to challenge resolutions which are to be considered erroneous due to either an unlawful content in the resolution or a fault in the decision procedure. I have examined to what extent this right to litigation constitutes a shareholder protection towards enforcement of such resolutions and the undesirable effects such decisions may cause. The weighing and balancing of interests at stake, shareholder protection and efficiency, is particularly interesting when it comes to general meeting decisions regarding election of members of the board. Thus, this issue and how erroneous elections affect the legal capacity and authority of the board, will be discussed in particular. First and foremost, the shareholder protection is confined by the fact that the shareholders’ right to bring an action against the company is restricted by a period of limitation. Actions based on minor errors in a certain resolution must be submitted within three months from the date the decision was made. But if the error is essential, the statutory law seems to stipulate no such period of limitation. This seemingly eternal right to bring an action is however not eternal. References to general rules of passivity are given in the legislative history of the Companies Act. Though, the question is if such rules really exist, and if so, what such rules prescribe. The examination gives some support to the statement that passivity from a shareholder might restrict its right to challenge a general meeting resolution in court even though the error is essential. How, and especially on what grounds, the passivity shall be assessed is however not clear. Furthermore, the shareholders’ protection is even more confined by the fact that the board, as a general rule, is not prohibited to enforce resolutions only because the resolution is erroneous or that an action has been brought. However, the board might in such cases expose itself for the risk of being liable to pay damages. This creates an incentive not to enforce erroneous resolutions, which could be considered an indirect protection for the shareholders. Another indirect protection is the shareholders’ right to request suspension of enforcement. In order to be granted such a suspension, the applicant must deposit security. Practically, this could exclude a lot of shareholders from protection. Finally, the focus is placed on the issue regarding erroneous elections of the members of the board. Since the board usually represents the company in court, the question of how erroneous resolutions affect legal capacity of the board is essential. To sum up, the interest of efficiency is superior to the interest of protection. At least as a general rule, the board shall be considered competent to represent the company even though the election is erroneous, until the court has declared the election void. However, if the error is essential, the general rule is the opposite. Two examples in modern case law illustrate this weighing and balancing of interests and have clarified the right to challenge erroneous resolutions in relation to the effects on the board’s legal capacity.