The judgment of the Provincial Court of Salamanca of 6th September 2022 (ECLI:ES:APSA:2022:699) studied the matter at issue in depth.
It dealt with the following matters in the fourth and fifth points of law thereof.
I.- Concept of essential asset. Requirement for a partners meeting resolution.
The concept of essential asset is regulated in articles 106 f) and 511 bis of the Amended Text of the Spanish Companies Act (Ley de Sociedades de Capital – TRLSC – hereinafter the ATSCA).
The first of said articles established that it is the competence of the general meeting of partners to deliberate and agree upon the acquisition, disposal, or contribution of essential assets to or from another company and that the asset is assumed to be essential when the amount of the operation exceeds twenty-five per cent of the value of the assets which figure in the most recently approved balance sheet, thus introducing a quantitative element.
The second, within the scope of listed joint-stock companies, furthermore adds certain additional competences also reserved for the general shareholders meeting (operations of subsidiarisation, operations equivalent to the liquidation and the policy of the remuneration of the board members).
This quantitative element constitutes an iuris tantum presumption, that is to say, it allows evidence to the contrary, in such a way that if the amount of the operation does not reach twenty five per cent of the value of the assets, it may also be considered an essential asset and, if it exceeds said percentage, it does not necessarily mean it is an essential asset.
Therefore, the existence of another qualitative element is inferred from this quantitative element that takes into account the substantial or material nature of each transaction and the consequences thereof for the company and its partners, on the basis that the intention of the legislator has been to reserve for the general partners meeting the decision on transactions of special importance for the organisational, corporate, financial and asset structure of the company and for the future of its activity.
In accordance with scientific doctrine, essential character arises in cases whereby the disposal of assets:
- Either entails an alteration of the asset, economic or financial composition of the company.
- Either implies a de facto modification of the corporate object, which leads to winding up or entails a structural modification.
This is reflected in the judgment passed by the Provincial Court of Ourense, of 16th October 2018 and the judgment of the Provincial Court of Asturias, of 26th February 2020.
That is to say, that although the principle of distribution of competences between corporate bodies attributes the management and representation function to the management system of the company, this fails in some cases, due to the will of the legislator, in order to guarantee better corporate governance, reserving the decision on the execution of operations relating to essential assets to the higher power of the general meeting of partners. This special rule of the ATSCA should always be interpreted in a restrictive manner.
II.- Consequences of not obtaining a partners meeting resolution for the disposal of assets.
Whereas article 160f of the ATSCA does not indicate the consequences derived from the non-compliance of this rule, article 161 of the same legal text (intervention of the general partners meeting in matters of management), also referring to article 234, opts for protecting bona fide third parties, by allowing the company to be obligated before third parties who have acted in good faith and without gross negligence, even when it may be deduced from the company bylaws registered at the Commercial Registry that the act is not included within the corporate object.
Hence, two postures exist with regard to the silence of article 160 f: the first grants validity to acts of the disposal of essential assets carried out before bona fide third parties, whereas the second deems that the authorisation of the partners meeting constitutes a legal reservation of competence which emerges as a requirement for validity and efficiency in the transfer and its absence leads to absolute nullity, that is, the ineffectiveness of the act and the restitution of contributions.
Case law and the Directorate General of Legal Security and Public Trust – DGLSPT (Dirección General de Seguridad Jurídica y Fe Pública-DGSJFP) have maintained different positions.
Whereas the judgment passed by the Provincial Court of Ourense, of 16th October 2018, advocates the effectiveness of the act for the protection of third parties in good faith, the judgment passed by the Provincial Court of Asturias of 26th February 2020, understands that the allocation of responsibilities has been undermined and that we are faced with an “excess of power”, in the same way as the resolutions of the DGRN (Directorate General of Registries and Notaries) of 11th June 2015 and the Judgment of the Supreme court of 17th April 2008. The Judgment of the Provincial Court of Burgos, of 7th December 2021, deems that, without the approval of the partners meeting, the act is null. The Judgment of the Provincial Court of Murcia, of 12th May 2022, is in favour of its effectiveness for the protection of bona fide third parties.
The Directorate General of Legal Security and Public Trust opts for the application of the aforementioned article 234 of the ACSCA and for the protection of bona fide third parties in its resolutions of: 14th December 2015, 22nd and 29th November 2017, 31st May 2018, 12th and 18th June 2020 and 13th April 2021. It also indicates that no obligation exists for providing a certificate or making an express statement on the part of the director that the asset object of the business is not essential, although with a statement made via a public deed regarding the non-essential nature, the position of the counterparty is improved with regard to the obligation of diligence and assessing gross negligence. Nevertheless, the omission of this express statement is not a defect in itself which may prevent registration. The registrar may asses the essential nature when it is manifestly so or when it arises from the elements available when assessing the document to be registered.
In the case at hand, the judgment revoked the judgment issued in the first instance, considering that the transferred asset was of an essential nature and was disposed of without the requirement of a partners meeting resolution, therefore the operation was declared completely null, with the ensuing ineffectiveness of the purchase and sale contract and the restitution of contributions, together with the cancelation of the registry entries, ordering the co-defendant companies to pay the court costs in the first instance.
Mireia Bosch
Vilá Abogados
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12th May 2023
