One of the most common changes registered with the Serbian Business Registers Agency is the amendment of the founding act (we’re specifically referring to amendments of the founding act of a limited liability company, as the founding act of a joint stock company is not subject to change). The reason for this lies primarily in the content requirements of the founding act as stipulated in Article 141 of the Company Law (“Official Gazette of the RS,” Nos. 36/2011, 99/2011, 83/2014 – other law, 5/2015, 44/2018, 95/2018, 91/2019, and 109/2021, “Law”), which mandates that any changes to the information that must be included in the founding act (company name, registered office, capital, members, etc.) must be recorded in an amended founding act.
A practical note – since the Law does not specify a deadline for making and registering such changes, nor does it impose a penalty for non-compliance, it often results in founding acts that do not contain updated information.
If we start from the assumption that the obligation to amend the founding act exists whenever information constituting its content changes, we reach the process by which the founding act is amended. According to Article 142 of the Law, the founding act of a limited liability company is amended by a simple majority vote of all company members, unless a greater majority is specified in the founding act. Exceptionally, an amendment that reduces the rights of a member can only be adopted with that member’s consent. Therefore, when amending the founding act, you must first consider what majority is required for the adoption of the amendment resolution by the company’s general meeting. The legal presumption is a simple majority; however, it is essential to consult the current founding act, as it may stipulate a different majority, and also to consider specific cases in which each member whose rights are affected by the amendment must agree.
Once the amendment decision is adopted with the required majority, we proceed to the signing and registration of that decision. Here, we highlight an important aspect regarding the preparation of registration documentation. Article 12 of the Law requires that amendments to the founding act of a limited liability company are made by resolution of the general meeting, with the amendment resolution signed by the members who voted for it. Practically, this means that all members who voted for the amendment must sign the resolution (whether there are two or ten members), ensuring that the required majority for the decision is achieved, as explained above.
The provision in Article 12 concerning the signing of the founding act somewhat contradicts Article 211 of the Law, which states that general meeting decisions are signed by the general meeting chairperson, or, exceptionally, by the sole member acting as the general meeting in a single-member company, both members in a two-member company with equal shares or voting rights, or, in the case of a repeated meeting in a two-member company with equal shares or voting rights, both members if present or the member who is present.
Accordingly, based on our firm’s experience, amendments to the founding act registered with the APR were previously signed in line with Article 211 of the Law, and everything was duly registered. However, recent decisions made in the registration process indicate that the registrar insists on applying Article 12 of the Law. This suggests that Article 12 serves as a specific rule compared to the general rule on signing general meeting resolutions, and it should be treated and applied as such.
Conclusion – Pay attention to the signatories of the founding act amendment resolution during registration to avoid rejection of the registration application and unnecessary delays in the registration process.