Shareholders who disagree with resolutions taken during a general meeting of a Luxembourg company, may wish to request the annulment of such resolutions in Court.

In 2016, the law of 10 August 1915 on commercial companies (the “Law of 1915”) has been modified to clarify the precise grounds for which the resolutions of a shareholder general meeting can be disputed, but also inserted a deadline to issue such a claim in Court. 

1. Grounds for annulment of a shareholders meeting or one of its resolutions

Since the reform of 2016, the following grounds can justify the annulment of a shareholder resolution:

• the resolution is irregular in its form, provided however that the claimant can prove that such irregularity has had an influence on the resolution itself
• in case of breach of the rules relating to the functioning of the company or in the event of a resolution on an issue which was not on the agenda of the general meeting, where there is a fraudulent intention,
• in case of abuse or misuse of power
• in case the exercise of voting rights which were suspended pursuant to a legal provision not included in the Law of 1915 and where, without such unlawfully exercised voting rights, the quorum and majority requirements for the resolution would not have been met.

2. Who can dispute?

Shareholders of a company can request the annulment of a shareholder meeting resolution.

Nevertheless, according to Article 100-22(2) of Law of 1915, the shareholder will no longer be able to request the annulment of a resolution in the following cases:

• the shareholder who voted in favor of the disputed resolution during the meeting, unless the shareholder’s consent was flawed
• the shareholder who has waived, explicitly or implicitly, his right to request the annulment of the resolution (unless the annulment of the resolution results from a public policy’s rule, where such right cannot be waived).

3. Deadline to request the annulment of a shareholder resolution

The modification in 2016 of the Law of 1915 introduced a 6 (six) month limitation period to request the annulment of a shareholder resolution in Court. The modification’s law of 2016 does not give precisions about the beginning of the limitation period.

This has been clarified by Case Law.

Indeed, the 6-month deadline starts from a different date, depending on the case:

• Case 1: The shareholder has knowledge of the taken resolution, for instance, if the shareholder was regularly convened to the shareholder meeting according to the Law and has participated. For this shareholder, the 6-month deadline starts from the date of the shareholder meeting.
• Case 2: the shareholder did not know that a shareholder’s meeting was held. In such case, the beginning of the 6-month deadline starts only from the date of the official publication of the shareholders’ meeting’s decision (if such decision is subject to an official publication).
• Case 3: the shareholders’ meeting was deliberately hidden from the shareholder and was not officially published; the deadline only starts at the date the shareholder had knowledge of the shareholder meeting.

Example:

A shareholder requested the annulment of the decisions of shareholders’ meeting. The defendant argued that the 6-month deadline had expired, as it had begun at the time when the shareholder received the convening notice for such shareholder meeting. The Court held that it was not proven that the claimant had knowledge about the shareholders’ resolution in tiself (the convening notice in itself is not sufficient, but it must also be proven that the shareholder had knowledge of the result), so that the limitation period was deemed to start at the date of the publication of the shareholders meeting. (Lux Court 26 June 2019)