Ograniczenia w zbywalności akcji w polskim Kodeksie spółek handlowych

  • W. Wyrzykowski


The subject of the article concerns regarding the restrictions on the transferability of shares in the Polish Commercial Companies Code. We all know that shares as securities are marketable. The legislator expresses this rule in polish law in the provision of art. 337 § 1 of the Commercial Companies Code, indicating that the shares are transferable. Regardless of it, in the practice, for many reasons, investors (shareholders) want to guarantee themselves a permanent circle of people, with whom they remain in the company. For this reason, they impose restrictions on the disposal of shares. Such a procedure, commonly known in polish law as «winkulacja», may be based on various legal grounds, including the company’s articles of association and agreements concluded between shareholders.
At the same time, from January 1, 2021, the Polish legislator has been implementing the policy of dematerialization of securities, hence the purpose of the article is to determine the impact of the amendment on the principles of sale of shares and their limitations. Pursuant to the adopted legal regulation, all shares in a joint-stock company do not have the form of a document. We have to notice, that pursuant to art. 328(1) § 1 of the Commercial Companies Code, shares of private companies, i.e. those whose shares are not admitted to stock exchange trading, are subject to registration in the register of shareholders. Thus, the shares of non-public companies become the so-called «registration shares». Additionally, the newly introduced provision of Art. 328(9) § 1 of the Commercial Companies Code has statement the rule that the acquisition of shares or the establishment of a limited property right thereon takes place at the moment of making an entry in the register of shareholders indicating the acquirer or the pledge.
For this reason, it is necessary to present the amended rules relating to the dematerialization of shares in the first part of the article and the rules of transferring rights from dematerialized shares. Then, it was analyzed how the new legal solutions affect the restrictions in the sale of shares.