The supplement to the call for the meeting (art. 172 LSC) –

Article 172 LSC deserves a really crucial evaluation: the risks of the registry perspective of Firm Regulation

And it’s that the complement of the assembly of the assembly by no means made a lot sense for closed corporations. If the one who can do essentially the most can do the least, it ought to be apparent that the shareholder who can pressure the convening of a gathering as a result of he has 5% of the capital required by artwork. 168 LSC, should have the ability to demand that factors be included within the agenda within the name made by the directors. A rule like that of artwork. 172 LSC that features such proper of the shareholders – why not of the companions of a restricted firm? – is sensible for listed corporations (artwork. 519 LSC that reduces to three% the participation that the associate will need to have to have the proper to complement the agenda) as a result of it ensures important shareholders their proper to introduce issues on the agenda with out forcing the directors to name a gathering, which is, within the case of listed corporations, one thing very costly (it may possibly value tens of millions of euros to carry a gathering).

However in closed corporations, a regulation reminiscent of that of artwork. 172 LSC is nonsense. As soon as once more, the corporate legislator has regulated Telefonica and Cafetería Santander SA in the identical means, whose shareholders are made up of the three sisters AB and C in equal components who inherited their dad and mom’ shares. If C is indignant with A and B and desires to place gadgets on the assembly’s agenda, artwork. 172 LSC obliges you to request that the complement to the decision be “printed” (?) “Together with a number of factors on the agenda”. However it has to

by dependable notification to be acquired on the registered workplace inside 5 days of the publication of the decision ”.

Does anybody of their proper thoughts consider that that is the best way to control the proper of minority companions to take part within the formation of the desire of the partnership in a three-partner partnership? Dependable notification? That is yet one more nonsense than the regulation of the shareholders’ assembly is full (greater than 50 articles!). The legislator behaves as if it regulates Telefonica and costs absurd prices for the administration of corporations with few companions. Or, perhaps worse, the legislator adopts a registry perspective slightly than a contractual one. When it regulates the board of capital corporations take into consideration eventual registrations as a substitute of pondering that you’re regulating a voluntary relationship between people. And disasters for cooperation between people happen and working prices for capital corporations in Spain skyrocket. Another reason to not go away Firm Regulation within the arms of registrars and notaries and to definitively repeal the Laws of the Mercantile Registry.

The Normal Directorate and the Registrar are proper to abstain

The details – not the idea of reality – of the Decision that’s the topic of those traces discuss with an attraction in opposition to the refusal of a industrial registrar to preventively be aware the request by a minority associate for a complement to the decision for the assembly. The associate, fought with the bulk companions, needed to generate a sign of nullity of the summoned assembly, the sanction imposed by part 2 of artwork. 172 LSC “within the absence of publication of the complement to the decision throughout the legally established deadline.”

Thus, the registrar and the Normal Directorate haven’t any selection however to disclaim the applying for registration of the requested preventive annotation. In two phrases,

The registrar considers that they haven’t complied with these necessities because the burofax was acquired by the corporate, greater than 5 days having elapsed because the publication of the decision; Relating to e-mail, it doesn’t take into account it as “dependable notification” as a result of an entity “supplier of certification providers” didn’t intervene.

And the DG dismisses the attraction saying one thing very wise: that the “registration process” has limitations that make it unable to resolve conflicts between companions, amongst different causes as a result of the corporate – on this case – doesn’t take part within the process. We solely hope that the DG will take all the results of this assertion and restrict the registration classification to registrable agreements which can be null and void and never merely irregular ones (objectionable within the terminology of artwork. 204 LSC) when, as happens in these instances, there isn’t any battle between the companions wherein the Registry shouldn’t or want to be concerned.

These limitations of the registration process have an effect on, within the first place, the appreciation and evaluation of the evidentiary parts that, if relevant, could also be offered inside a course of with contradiction “. Though it says this to justify the DG’s doctrine that solely Correos attests {that a} communication has taken place throughout the framework of registration procedures, it acknowledges that this doctrine shouldn’t be utilized inside a contradictory process reminiscent of judicial ones. Add that Faithfulness is one thing completely different from authenticity, which can be admitted and valued inside a judicial continuing ” and you could not do with out religion – says artwork. 172 LSC – within the registration process.

Making an allowance for… the problem of appreciation of the proof by the registrar, and extra making an allowance for that the corporate has not been a celebration on this file; the consequences that may happen if the annotation had been made, since it might entail the consideration by the registrar of the assembly as null, in accordance with articles 172 of the Capital Firms Regulation and 104 of the Mercantile Registry Laws, because the complement has not been printed of convocation; and the potential of difficult the resolutions adopted in that normal assembly in courtroom in accordance with article 204 of the Capital Firms Regulation; decide that the grade mark is confirmed.

As I say, DG’s reasoning is wise below these circumstances. It says one thing like the next:

“Accomplice: I don’t observe the preventive annotation as a result of the legislation says that you need to have reliably communicated the summons complement to society and you haven’t performed it reliably. However, with it, I don’t trigger you any irreparable harm. I merely stop you from utilizing the registry to realize a tactical benefit within the battle that you’ve got with the bulk companions. You could have tried to preconstitute a proof – with the worth {that a} decide desires to present it – that the assembly of the corporate held, with out discussing the factors that you simply included in your summons complement, is void by utility of artwork. 172.2 LSC.

However that is not what the Registry or preventive annotation is for. Fairly merely, as a result of there are not any third events to whom the registry can usefully inform that the board is void. Quite the opposite, noting the add-on publication request preemptively creates an look that may solely hurt society.

Quite the opposite, not training the preventive annotation of the request for a complement to the decision of the overall assembly doesn’t hurt you within the eventual lawsuit wherein you request the annulment of the assembly held with out together with the gadgets on the agenda that appeared there . It will likely be sufficient so that you can show to the decide that your communication met the necessities of artwork. 172 LSC and, due to this fact, that the decide should uphold your declare and declare null the agreements adopted at such assembly “

And, in impact, if the associate finally ends up going to courtroom and asking for the annulment of the shareholders’ assembly, the shortage of observe of the annotation shouldn’t affect in any respect within the evaluation of the conduct of the corporate, that’s, if, certainly, the corporate had infringed artwork. 172 LSC by refusing to publish the complement and together with the gadgets contained therein on the agenda.


Photograph: JJBOSE

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