Can a shareholder of a company claim damages against another company for its action that caused a reduction in the value of the shareholder’s shares ? The answer to this question requires a broader analysis and is not obvious.

In order to consider liability for damages under Article 415 of the Civil Code such factors should be taken into consideration:

• act or omission;
• damage;
• an adequate causal link between the act or omission and the damage;

The factor of degree of culpability is also not insignificant. However, one cannot forget to identify the responsible party and the injured party, and the above-mentioned provision does not indicate how the concept of injured party, for example, should be understood, so there is a dispute in the doctrine in determining the circle of entities entitled to claim compensation.

From an economic point of view, the reduction in the value of shares or stocks is the result of the company suffering a loss – the loss of value of the company’s assets in this case translates directly into the value of the share units. From a legal point of view however, it is not clear whether this kind of situation implies the adequacy of causation, given that the injurious event directly affects only the company, and not its shareholders. This provision, however, in its wording does not refer to the premise of directness. Its essence boils down to the “normality” of the causal relationship, not its “directness.” The jurisprudence is not unanimous as to whether the Polish legal order in general allows persons not directly affected by the injurious event to claim compensation. On the one hand, there are supporters of full compensation of damage without subjective restrictions, while on the other hand, opponents of this concept maintain that a claim for compensation is only available to the directly injured party, and that exceptions to this rule must arise directly from the law.

From the perspective of these considerations, a major change in the perception of the present problem was brought about by the reform of the Commercial Companies Code introducing legal regulations concerning a group of companies and in particular introducing Article 211³. It allows a shareholder of a subsidiary company to claim compensation for the reduction in the value of their shares as a consequence of the execution of a binding order issued by the parent company within the group of the company in which it is located. The condition that enables the above claim is a so-called binding order.

Binding order is a term used in the context of a group of companies. A parent company may issue an instruction to a subsidiary participating in a group of companies regarding the conduct of the company’s affairs. This is possible if it is justified by the interests of the group of companies and special regulations do not provide otherwise. This means that the parent company has the right to give instructions to the subsidiary, which must be carried out.

The discussed amendment to the Commercial Companies Act, the so-called holding law, does not fully resolve the discussed issue of the possibility of claiming compensation by an indirectly injured entity that is a shareholder of the company. First of all, it is unclear whether the mere fact of the introduction of this provision means that it is not possible to pursue claims in other cases, or whether it is possible, and this provision only clarifies one of the cases.

Either way, the fundamental aspect of a lawsuit brought should be for a shareholder of a directly injured joint-stock company to demonstrate that he is an “injured party” within the meaning of Article 415 of the Civil Code, and is therefore entitled to a claim for damages.

It should be pointed out that the Supreme Court in some of its rulings has allowed the indirectly aggrieved shareholder of a joint-stock company affected by a harmful event – in this case, it was the unlawful action of the tax authority – to claim compensation for damages. As indicated earlier, the important issue was to establish the existence of a causal link between the infliction of damage to the company and the shareholder’s own injury. Unfortunately, however, this does not appear to be an established line of case law.