Voting rights attaching to shares held as part of a leased undertaking
In the course of bankruptcy and restructuring proceedings, the enterprise may be leased. The question arises of who exercises the voting right from the shares in the leased enterprise, the lessee or the owner of the shares.
In my opinion, the voting right remains with the owner of the shares and is not transferred to the lessee. This is due to the principle of the inseparability of the shareholder’s organisational rights. In so far as participation (either within an enterprise or on its own) can be exercised on the basis of a lease or usufruct agreement, organisational (corporate) rights, including voting rights, shall not, as a general rule, be transferred to the user.
An exception to the above rule is provided for in art. 187 par. 2 of the Polish Commercial Companies Code, which states that the articles of association of the company may provide that the voting right “shall be detached” from the partner and shall be vested in the pledgee or user.
First, however, the provision concerns lien and usufruct. It is therefore very doubtful that such an exception could be extended to the legal positions of the lessee. Secondly, an appropriate provision in the articles of association is required. This provision would have to be explicitly applied to share leases. It would, of course, be questionable in terms of its legitimacy.
Therefore, it should be concluded that the voting rights remain with the owner of the shares and are not transferred to the lessee.