JŠK Legal Flash
The Supreme Court ruled for the first time on the pre-emptive right of shareholders to subscribe for shares under the Business Corporations Act
The pre-emptive right of shareholders to subscribe for the company's shares when increasing the registered capital can be excluded only if it is in the important interest of the company. It follows from the judgment that neither the need for the company to secure enough funds for the implementation of a specific project nor the capitalisation of some shareholders' receivables from the company can be regarded as an important interest. If a company wishes to raise funds by subscribing for new shares, it cannot differentiate between shareholders and simply exclude some shareholders from subscribing for new shares. Nor can the capitalisation of shareholders' receivables be regarded as an important interest if it follows from the factual circumstances that the receivables of the respective shareholders arose for a specific purpose. As the subscription of new shares only by some shareholders marginalises the share of other shareholders, the exclusion of some shareholders from the share subscription must not be misused as a tool to purposefully weaken the position of these shareholders.
(NS 27 Cdo 155/2019)
Supreme Court limits the possibility of setting off claims during proceedings on them
Until now, the courts dealt with the set-off even if the defendant made a substantive set-off against the claim only during the appeal proceedings. This set-off constituted a new fact which arose only after the decision of the court of first instance and therefore could not be applied in the first-instance proceedings and was not covered by the effects of the concentration. The Supreme Court has recently stated that the courts of appeal should not consider compensatory statements made after the first instance judgment, unless all facts about the origin, amount and maturity of the claim so offset have been alleged and proved in the first instance, unless they had not yet existed at that time. In addition, according to the Supreme Court, failure to take such a compensatory statement into account will be reflected in a substantive way in that the effects of the set-off will not occur and the claims will not lapse, even if the set-off was undertaken outside the court proceedings.
(NS 31 Cdo 1475/2020)
Employers with at least 50 employees will be required to test for COVID-19
The new rule will apply from March, with testing required at least once a week. Testing administered by a health service provider or self-testing at the workplace are both permissible. For employers with at least 250 employees, testing will begin as early as 3 March, and from 12 March, employees may only be allowed to enter the workplace with a negative test taken in the last seven days. Employers with 50 to 249 employees will be subject to the same obligations, with only a slight difference in dates (5 and 15 March). All employees are required to undergo tests, except for employees who have already had the disease and no more than 90 days have passed since the first positive test. Employees who are working from home and do not come to the workplace also do not have to be tested. Smaller employers may carry out the testing voluntarily.