According to the facts of the case brought before the Court, as provided in the Articles of Association of the company defendant, the director convenes the general meeting of shareholders at least once a year or whenever necessary. Through the same Articles of Association was not performed an embodiment of convening the General Meeting of Shareholders also by the shareholders, in exceptional situations of organization and normal functioning of the company. In these conditions in order to replace the clauses of articles of association are applicable the provisions of art. 195 paragraph (2) of Law no. 31/1990, according to which a shareholder or a number of shareholders representing at least one-fourth of the share capital may request the convening of the General Meeting of Shareholders, showing the scope of this convocation. In essence, these provisions grant entitlement to shareholders holding a share of the capital to convene the general meeting.
The Court notes that the law establishes both the person charged with convening the general meeting, this person being the administrator of the company, as well as the other persons entitled to demand the convening of the general meeting to the Director of the company. If the company Director can exercise the right to convene a general meeting and to assume the obligation to convene the general meeting, the shareholders only have the right to request the convocation by the company administrator. This is because entitled shareholders are holders of the right to convene, but not the act of convocation, act which remains only within the limits of the administrators of the company.
Given that the companys Director is asked by the shareholders entitled to convene the general meeting, indicating the agenda of the meeting, and thus the purpose of convening the meeting, in case of unjustified refusal of convening the meeting by the company’s director, shareholders are can file a claim in court to enforce the right provided by art. 195 paragraph (2) of Law no. 31/1990. This is because the freedom of exercise of the mandate of the Director, including for the convening of the general meeting, is limited to protect the rights of corporate shareholders.
The concrete ways to access to justice for shareholders in order to capitalize the right to request the convening of the general meeting is governed by art. 119 paragraphs (3) – (4) of Law no. 31/1990 rules that apply by the analogy of the law to effect a similar situation in the matter of limited liability companies, with reference to the right of the shareholders to request the convening of the general meeting for which the provisions of art. 195 havent got an independent regulator.
According to art. 119 paragraph (3) of Law no. 31/1990, if the board or directorate does not convene the general meeting at the request of the shareholders / shareholders entitled under par. (1), the court may authorize the convening of the general meeting of shareholders by the shareholders/ shareholders who made the request for convening the meeting. By the same decision the court approves the agenda and date of the meeting of shareholders and the shareholder presiding it.
These are the provisions provided by the legislature to build effective legal means to resolve those legal situations in which the body or person who meets the mandate of the director unreasonably refuses the legitimate requests of shareholders of convening the general meeting. Moreover, these provisions are intended to cover through their regulation the impediments to convene the general meeting in respect of other companies in the field of regulation of the Law no. 31/1990. This is because these provisions are not intended to serve limited and exclusively for joint stock companies, even if these provisions are situated in the section regarding the general meetings of shareholders in stock companies.