I.- INTRODUCTION.
The company SERCATRANS LOGÍSTICA 2000, S.L. (hereinafter, “SERCATRANS”) modified its by-laws stating that the post of director would be remunerated, always provided that the latter performs duties as manager or chief executive.
However, the commercial registrar in Huelva decided not to register said modification because in her opinion it was in breach of articles 6 and 50 of the Commercial Registry Regulation and article 217.2 of the Capital Companies Act. SERCATRANS brought an appeal against said decision before the General Directorate for Registries and the Notaries (“DGRN”).
II.- CASE BACKGROUND.
It is interesting to stress the fact that the resolution of 27th April 2013 of the DGRN states that in some cases it is possible to remunerate only some of the members of the administrative body of a company. This may happen when the administrative body has a complex structure and it is possible to objectively distinguish the functions carried out by each member depending on his/her post. Therefore, in a board of directors it is lawful for instance to remunerate only the managing director.
However, this unequal treatment is not possible in the event of joint and several or joint directors, since in this case all of the members of the administrative body are bestowed with the same faculties.
III.- THE DGRN RESOLUTION.
Bearing in mind that the management system of SERCATRANS was formed by a sole director, the resolution of the DGRN dismisses the appeal brought by the company and confirms the qualification issued by the commercial registrar due to the following reasons:
The clause grants an unequal treatment to the remuneration of the directors based on duties that are, pursuant to Spanish law, the same for any director.
The clause submits to the decision of the general meeting of partners whether the directors have fulfilled the entrusted duties, which is a clear breach of the law, since this issue must be clearly stated in the by-laws of the company. The general meeting of partners can decide on the amount of the remuneration, but not on its existence.
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Vilá Abogados
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8th of August 2013
