Although the written reasons for the judgment have not yet been published, the Tribunal\u2019s position on this issue is of considerable significance, as explained below.<\/p>\n\n\n\n
According to the publicly available case files, the complainant was a minority shareholder in a public company listed on a regulated market. In his view, however, the compulsory buy-out price per share, determined under an agreement concluded between the controlling shareholders and a selected group of minority shareholders, was grossly below fair value, as indicated by an analysis of the company\u2019s key financial indicators.<\/p>\n\n\n\n
The complainant therefore argued that he had suffered a loss and that his rights as a minority shareholder had been infringed, while the party carrying out the compulsory buy-out had been unjustly enriched at his expense by acquiring the shares at an undervalued price.<\/p>\n\n\n\n
Accordingly, it was alleged that the constitutional right to property had been infringed as a result of a legislative omission consisting in the absence of a provision requiring compensation to be paid at a level at least equal to the fair value of the compulsorily acquired shares.<\/p>\n\n\n\n
The key provision in this context is Article 79(1)(2) of the Public Offering Act. Under the previous wording of that provision, the price of shares proposed in a tender offer to subscribe for the sale or exchange of shares could not be lower than their fair value only where it was impossible to determine the average market price over the relevant period or where restructuring or insolvency proceedings had been opened in respect of the company.<\/p>\n\n\n\n
A fuller analysis of the Constitutional Tribunal\u2019s position will be possible once the written reasons for the judgment have been published. However, the press release issued following the ruling already states that:<\/p>\n\n\n\n
\n\u201cthe mechanism for determining the compulsory buy-out price on the basis of the average quoted market price, as provided for by the challenged provisions, does not reflect the actual value of the shares subject to the buy-out<\/strong>. In particular, it disregards the shareholder\u2019s proprietary rights<\/strong>: the right to participate in profits, the right to participate in the distribution of the company\u2019s assets, and the right to sell the shares. [\u2026]<\/p>\n\n\n\n
The challenged provisions reduce the value of shares in a public company to their speculative, stock-market value, often based on market inefficiency or the generally low liquidity of shares characteristic of the Polish stock market.<\/strong> The speculative, stock-market value of shares should not be the sole measure used to determine the compulsory buy-out price of shares in a public company, as it does not ensure equivalence in respect of shares acquired compulsorily.<\/p>\n\n\n\n
The mechanism for determining the compulsory buy-out price provided for in the challenged regulation may, in many situations, result in an excessive restriction of the property rights of shareholders who are compelled to sell their shares at a price that is not equivalent to their actual value<\/strong>.\u201d[3]<\/p>\n<\/blockquote>\n\n\n\n
It should therefore be recalled that a judgment of the Constitutional Tribunal finding a provision unconstitutional, where that provision formed the basis of a final court judgment, constitutes grounds for reopening the proceedings, setting aside a decision or revisiting another determination, in accordance with the rules and procedure applicable to the relevant proceedings.<\/p>\n\n\n\n
Protection of minority shareholders<\/h2>\n\n\n\n
Finally, it is worth noting that the Constitutional Tribunal\u2019s judgment was issued at a time when the draft Act amending certain acts in connection with improving the functioning of the capital market (UC137<\/strong>) was undergoing consultation. The proposed legislation is intended to strengthen the protection of minority shareholders in the compulsory buy-out of shares in public companies.<\/p>\n\n\n\n
According to the Regulatory Impact Assessment:<\/p>\n\n\n\n
\n\u201cThe rules currently applicable to determining the compulsory buy-out price on the basis of a price formed through stock exchange trading do not always objectively reflect the current value of a given company<\/strong>, for example where trading volumes are low\u201d,<\/p>\n<\/blockquote>\n\n\n\n
and therefore:<\/p>\n\n\n\n
\n\u201ca mechanism based on a tender offer and a sufficiently high level of shareholder participation should contribute to determining a price that reflects the expectations of minority shareholders. In turn, acceptance of the compulsory buy-out price by minority shareholders would constitute confirmation that the price is set at fair value.\u201d[4]<\/p>\n<\/blockquote>\n\n\n\n
Although there is still a long way to go, minority shareholders may finally obtain the level of protection that has been called for for many years.<\/p>\n\n\n\n
\n\n\n\n[1] More precisely: Article 64(1) and (3) in conjunction with Article 31(3) of the Constitution of the Republic of Poland.<\/p>\n\n\n\n
[2] Constitutional Tribunal, Method of calculating the minimum price in the event of a compulsory buy-out of shares<\/em>, accessed 27 April 2026.<\/p>\n\n\n\n
[3] Constitutional Tribunal, press release concerning the method of calculating the minimum price in the event of a compulsory buy-out of shares<\/em>, accessed 27 April 2026.<\/p>\n\n\n\n
[4] Government Legislation Centre, Draft Act amending certain acts in connection with improving the functioning of the capital market<\/em>, accessed 27 April 2026.<\/p>\n","protected":false},"excerpt":{"rendered":"
Last week, more than three years after the constitutional complaint was lodged, the\u00a0Constitutional Tribunal, in case\u00a0SK 99\/23, unanimously ruled that Article 82(2) in conjunction with Article 79(1)\u2013(3) of the Act of 29 July 2005 on Public Offering, Conditions Governing the Introduction of Financial Instruments to Organised Trading, and Public Companies (Journal of Laws of 2025,…<\/p>\n","protected":false},"author":1,"featured_media":12245,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"_kad_blocks_custom_css":"","_kad_blocks_head_custom_js":"","_kad_blocks_body_custom_js":"","_kad_blocks_footer_custom_js":"","_kad_post_transparent":"","_kad_post_title":"","_kad_post_layout":"","_kad_post_sidebar_id":"","_kad_post_content_style":"","_kad_post_vertical_padding":"","_kad_post_feature":"","_kad_post_feature_position":"","_kad_post_header":false,"_kad_post_footer":false,"_kad_post_classname":"","footnotes":""},"categories":[279],"tags":[],"obszary-praktyki":[326],"ppma_author":[246],"class_list":["post-12247","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-legal-alert","obszary-praktyki-corporate-law-and-capital-markets"],"acf":[],"taxonomy_info":{"category":[{"value":279,"label":"Legal alert"}],"obszary-praktyki":[{"value":326,"label":"Corporate Law and Capital Markets"}]},"featured_image_src_large":["https:\/\/jklaw.pl\/wp-content\/uploads\/2026\/04\/2026-GRAFIKI-JKLAW_blog-53-1024x576.png",1024,576,true],"author_info":{"display_name":"Administrator","author_link":"https:\/\/jklaw.pl\/en\/author\/administrator\/"},"comment_info":0,"category_info":[{"term_id":279,"name":"Legal alert","slug":"legal-alert","term_group":0,"term_taxonomy_id":279,"taxonomy":"category","description":"","parent":0,"count":78,"filter":"raw","term_order":"0","cat_ID":279,"category_count":78,"category_description":"","cat_name":"Legal alert","category_nicename":"legal-alert","category_parent":0}],"tag_info":false,"authors":[{"term_id":246,"user_id":0,"is_guest":1,"slug":"joanna-fedorczyk-en","display_name":"Joanna Fedorczyk","avatar_url":{"url":"https:\/\/jklaw.pl\/wp-content\/uploads\/2023\/08\/zdjecia-czlonkow-zespolu-800x1200-px-9.png","url2x":"https:\/\/jklaw.pl\/wp-content\/uploads\/2023\/08\/zdjecia-czlonkow-zespolu-800x1200-px-9.png"},"first_name":"Joanna","last_name":"Fedorczyk","funkcja":"Advocate trainee, Associate","telefon":"+48 22 416 60 04","job_title":"","linkedin":"https:\/\/www.linkedin.com\/in\/joanna-fedorczyk-91687b245\/","description":""}],"_links":{"self":[{"href":"https:\/\/jklaw.pl\/en\/wp-json\/wp\/v2\/posts\/12247","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/jklaw.pl\/en\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/jklaw.pl\/en\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/jklaw.pl\/en\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/jklaw.pl\/en\/wp-json\/wp\/v2\/comments?post=12247"}],"version-history":[{"count":4,"href":"https:\/\/jklaw.pl\/en\/wp-json\/wp\/v2\/posts\/12247\/revisions"}],"predecessor-version":[{"id":12877,"href":"https:\/\/jklaw.pl\/en\/wp-json\/wp\/v2\/posts\/12247\/revisions\/12877"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/jklaw.pl\/en\/wp-json\/wp\/v2\/media\/12245"}],"wp:attachment":[{"href":"https:\/\/jklaw.pl\/en\/wp-json\/wp\/v2\/media?parent=12247"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/jklaw.pl\/en\/wp-json\/wp\/v2\/categories?post=12247"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/jklaw.pl\/en\/wp-json\/wp\/v2\/tags?post=12247"},{"taxonomy":"obszary-praktyki","embeddable":true,"href":"https:\/\/jklaw.pl\/en\/wp-json\/wp\/v2\/obszary-praktyki?post=12247"},{"taxonomy":"author","embeddable":true,"href":"https:\/\/jklaw.pl\/en\/wp-json\/wp\/v2\/ppma_author?post=12247"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}