Tvångsinlösen av minoritetsaktier i småbolag : En konflikt med egendomsskyddet?

Sammanfattning

The compulsory redemption of minority shares constitutes a distinctive feature of Swedish company law, as voluntariness otherwise represents a fundamental principle. The institute entails a forced transfer of property between private legal subjects and thereby exhibits expropriation-like characteristics, which necessitates a careful assessment of its compatibility with the property protection enshrined in Chapter 2, Section 15 of The Instrument of Goverment and Article 1 of the First Protocol to the European Convention on Human Rights. The purpose of this thesis has been to examine whether the compulsory redemption of minority shares in small, unlisted companies is compatible with the property protection requirements of compelling public interest, proportionality, and full compensation. The thesis has also adopted a legal policy perspective, addressing the institute’s appropriateness and possible alternative solutions. Following an outline of the redemption rules in Chapter 22 of the Swedish Companies Act, their objectives, and the process for determining the redemption price, the property protection framework in the Constitution and the ECHR is analyzed. Given the limited guidance in the preparatory works, NJA 2018 p. 753 serves as the primary authority for how the proportionality assessment concerning property is to be carried out. This analysis is complemented by legal doctrine discussing the relation between property rights and compulsory share redemption, as well as case law of the European Court of Human Rights, which establishes that forced transfers are permissible only where legitimate public interests are present. The analysis indicates that it is doubtful whether compulsory redemption in small, unlisted companies fulfills these requirements. In particular, the necessity criterion and strict proportionality appear problematic, as the socio-economic benefits in such cases often seem marginal. The question of whether the measure rests upon a “compelling public interest” is likewise uncertain. While the compensation issue provides somewhat stronger arguments for compatibility, it is not evident that the current framework consistently ensures full compensation. Against this background, the legislator’s failure to explicitly address the constitutional dimensions of the issue merits consideration. From a legal policy perspective, the thesis highlights that compulsory redemption in small, unlisted companies may be both socio-economically inefficient and constitutionally problematic. In many instances, contractual solutions appear more resource-efficient. A reasonable alternative would therefore be to restrict the application of the institute to larger companies, where its underlying purposes are more clearly justified. Overall, the thesis shows that there are reasons to consider a reform or a limitation of the scope of application of the compulsory redemption rules.