This is stated by the Supreme Court in its decision of June 10, 2020 in case № 922/2200/19.

THE ESSENCE OF THE CASE

In July 2019, the participants of the LLC filed a lawsuit to invalidate certain items of the charter of the LLC (as amended on July 7, 2016), in particular, on the grounds and procedure for exclusion of a participant from the LLC, establishing a qualified majority for a decision at the general meeting participants, powers of the board of founders.

The participants of the LLC substantiated their claims by the fact that the disputed clauses of the charter do not meet the requirements of Art. Art. 29, 33, 37 of the Law "On Limited and Additional Liability Companies", which entered into force on June 17, 2018, and violate the corporate rights of the plaintiffs.

COURT POSITION

The court of first instance upheld the claim. The Commercial Court of Appeal overturned the decision of the Commercial Court and denied the claim.

The position of the Court of Appeal was also supported by the panel of judges of the Supreme Court of Cassation. Given the following:

✔ Charter of a legal entity within the meaning of Part 2 of Art. 20 of the Civil Code is an act. The basis for declaring an act, including the statute, invalid - is its inconsistency with current legislation.

✔ Clause 3 of Chapter VIII “Final and Transitional Provisions” of the Law of Ukraine “On Limited and Additional Liability Companies” establishes an annual period during which the provisions of the company’s charter apply, even if they do not comply with the Law, provided that they comply with the law. the day of entry into force of the Law of Ukraine "On Limited and Additional Liability Companies".

✔ After the expiration of the specified annual term, such priority of the statute over the Law is automatically terminated and the provisions of the statutes that do not comply with the said Law are not applied. Instead, the provisions of the Law of Ukraine "On Limited and Additional Liability Companies" apply.

Therefore, the appellate court, finding that the contested provisions of the statute comply with the legislation in force at the time of its approval, and as of the time of the plaintiffs with the claim provisions of the statute, which do not meet the requirements of the Law of Ukraine "On Limited and Additional Liability" by virtue of this Law do not apply, and also establishing that the plaintiffs have not proved the violation of their rights and legally protected interests by the disputed provisions of the company's charter, reasonably refused to satisfy this claim.

The full text of the decision of the Supreme Court of Cassation of June 10, 2020 in the case № 922/2200/19 can be found at the link.