Non-voting shares: when voting rights are restored (Supreme Court Ruling 440/2026)

Executive summary

Supreme Court ruling STS 440/2026 (20 March 2026) establishes, for the first time, a clear criterion for a very common issue in private companies: when can the holder of non-voting shares vote if they have not received the minimum dividend?

The Court’s answer is not “automatic”: it depends on milestones in the annual financial cycle and the annual general meeting, and may affect the validity of resolutions if the vote was decisive.

Starting point: the legal balance of non-voting shares

Non-voting shares are based on an exchange: less political power, more economic protection (statutory minimum annual dividend).

The Companies Act adds a balancing mechanism: if the minimum dividend cannot be paid due to a lack of distributable profits, the unpaid portion is deferred and, until it is paid, the holder regains the right to vote on an equal footing with ordinary shareholders.

The most common practical error: confusing ‘not yet paid’ with ‘not payable’

The dispute resolved by the Supreme Court is very real in practice: at a meeting held months after the creation of non-voting shares, someone argues that the shareholder can now vote because they ‘have not yet received’ the minimum dividend.

The Court corrects this oversimplification: the restoration of voting rights requires a legal assertion that the minimum dividend has not been paid due to a lack of distributable profits (or due to a failure by the company to act at the time the accounts were due to be approved).

The rule established by the Supreme Court: look at the company’s calendar

The judgment introduces a highly practical interpretation of Article 99.3 of the Companies Act:

• The “non-voting” regime applies from the moment of creation: the shareholder does not vote at subsequent meetings by default.
• The “exception” (reinstatement of voting rights) does not arise simply because payment has not been received by a specific date.
• In the first financial year concerned, the restoration of the vote usually requires one of the following scenarios:
• 1. that the accounts are approved and it is clear that there are insufficient distributable profits, or
  2. that the statutory deadline for holding the ordinary general shareholders’ meeting to approve the accounts has expired and the meeting is not held / does not approve the accounts, thereby confirming the situation of failure to pay the minimum dividend.

Effect on resolutions: if the vote was decisive, there is a risk of annulment

The Supreme Court applies a practical approach: if, upon “withdrawing” that improper vote, the resolution fails to achieve the required majority, the resolution is vulnerable. In companies with few shareholders, this can be decisive in asset sales, reorganisations or amendments to the articles of association.

Seegman’s Checklist to avoid challenges

1. Before the meeting, check whether the accounts for the relevant financial year have already been approved (or whether the statutory deadline has expired without a meeting).
2. Verify the statutory provisions regarding the minimum dividend and their rationale (fixed/variable, conditions).
3. Calculation of majorities: simulate the result with and without that vote.
4. Minutes: clearly record the criteria applied to accept or reject the vote.

FAQs

1) Can I vote simply because I haven’t yet been paid the minimum dividend?

Not necessarily. The right to vote is not automatically restored merely because the dividend ‘has not yet been paid’. In the first financial year concerned, it is normally necessary for the corporate cycle to confirm that the minimum dividend was not payable (due to a lack of distributable profits) or that the statutory deadline for the annual general meeting has already passed without the results having been approved.

2) When is the restoration of voting rights deemed to be triggered?

In practical terms, when a milestone is reached that allows it to be objectively stated that the minimum dividend has not been paid “in accordance with Article 99.3 of the Companies Act”:

• following the close of the financial year and the approval of the accounts / allocation of profits, if it transpires that there were insufficient distributable profits to satisfy it; or

• if the statutory deadline for holding the annual general meeting expires without the meeting having been held or the accounts having been approved, thereby confirming the failure to pay the minimum dividend.

3) Can the company “prevent” the voting right from being reinstated by paying the minimum dividend at a later date?

If the minimum dividend due (or the accumulated amount payable, according to the articles of association) is paid, the recovered vote ceases to have effect. However, the critical point is when the right to vote arose: if a vote was cast at a meeting without the necessary conditions being met, the resolution may be challenged even if payment is subsequently regularised. 

4) Is a resolution always annulled if someone who should not have voted did so?

Not always. It depends on whether that vote was decisive in reaching the required majority. If, excluding the invalid vote, the resolution would not have passed, there is a clear risk of annulment (stress test).