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NEWSLETTER 2013
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Furthermore, restructuring decisions do not always require a general
assembly resolution, as is the case with a facilitated merger whereby the
decision can be taken by the managing body and not the general assembly,
and a special provision is therefore necessary in order for such decisions
to be annulled in the event of contravention of the law.
The annulment lawsuit filed based on the contravention of provisions
regulating restructuring transactions is regulatedunder a specificprovision.
It is disputed whether, regardless of this provision, annulment lawsuits
may be filed based on general provisions in the event of contravention of
Art. 134 to 190 TCC.
Parties to the Lawsuit and the Subject Matter
Art. 192 TCC regulates the annulment of the merger, spin-off or
conversion decision.
The shareholder of a company engaging in the restructuring transaction,
who did not vote in favor of the decision for which it seeks the annulment,
and who recorded their objection in the minutes may file this lawsuit.
Nevertheless, in the event the managing body adopts the restructuring
decision, and not the general assembly, this prerequisite does not need to
be met. Contrary to the general annulment lawsuit, shareholders that did
not participate in the meeting, the board of directors and board members
are not authorized to file a lawsuit based on these provisions.
The lawsuit must be filed against the company whose decision is to
be annulled. In the event that said company is dissolved and deleted from
the trade registry, as in the case of a complete spin-off or a merger, the
lawsuit will be initiated against the acquiring company.
Prescription Period
The annulment lawsuit should be filed within two months of the
publication of the relevant decision in the TTRG, as is the case for
lawsuits regarding the protection of shares and rights of shareholders.
Nevertheless, the prescription period for the general annulment lawsuit is
three months, which therefore results in a lack of coherence between the
two provisions.