Shareholder resolutions that violate the law (e.g. participation of a shareholder who is excluded from voting rights) or the articles of association can be challenged by the outvoted or an absent shareholder who was not properly invited to the shareholders’ meeting, by filing a lawsuit against the company. Outvoted shareholders must object to the resolution in writing at the shareholders’ meeting. If a shareholder resolution is contested, the action to contest the resolution can be combined with an action to determine the correct result of the resolution. Until the court has overturned the resolution. Until the court has set aside the resolution, the contested resolution is provisionally binding (1 Ob 61/97w; 6 Ob 53/06x).
It is a prerequisite, however, that the result of the resolution was either recorded in the minutes immediately after the resolution was passed or that the shareholders assume a certain resolution result, at least at the end of the shareholders’ meeting. If all shareholders present at a shareholders’ meeting dispute the resolution, the specific content of the resolution cannot be established.
If there is a lack of determination of a specific resolution result by a chairman clearly legitimised by shareholder resolution or if the shareholders did not agree on a specific resolution result at the end of the general meeting, an action to set aside the resolution cannot be considered and an action for declaratory judgement must be brought to determine what was actually decided by the shareholders.
The fact that a chairman elected at the eginning of the shareholders’ meeting can, at least provisionally, make a resolution binding means that the influence of the chairman should not be underestimated. Court rulings on actions to set aside the resolution generally take longer than a year.
Actions to determine the content of a resolution or to set aside the resolution must be directed against the company and not also against the co-shareholders (6 Ob 105/19p).