With this thought, we want to highlight one of the latest resolutions issued by the Directorate General for Registries and Notaries (hereinafter DGRN) whose purpose it is to solve the question raised above.
The case which generated the declaration of the DGRN was based on the refusal of the Registrar to register the annual accounts as requested by the company in question. The reason for which the Registrar refused to do so was because said company’s record on the Companies Register had been temporarily closed to further submissions because the accounts for the financial years 2012 and 2013 had not been filed.
After this declaration, the company under discussion appealed arguing that the company was incorporated in a public deed, but for reasons attributable to the partners, one year from the date of granting, the public deed was not yet registered at the Companies Register. They also claimed that, given that a year had passed since the granting of the deed without the mandatory registration, the company became irregular and as the company had started its business activity, the rules of a partnership would be applied. Therefore, the company representatives believe that as partnerships are not subject to registration, neither can they be subject to submitting annual accounts.
In light of these allegations, the DGRN ruled as follows: it understood that, by virtue of the majority of doctrine along with case law, the Supreme Court can not maintain that a company not registered lacks legal personality. In other words, trading companies in formation, as is the case at hand, hold enough legal personality to acquire and own property, undertake obligations and perform all kinds of actions in accordance with the Spanish Companies Act. It also indicates that the registration of the company with the Companies Register is required only for capital companies to acquire their special legal personality as such. Consequently, the registration enables the acquisition of the legal personality for the chosen company type, and not an abstract legal personality.
As a matter of fact, the DGRN understood in this case that the filing of annual accounts is not appropriate when the annual accounts of previous years do not appear to have been submitted.
The arguments taken into account by the DGRN in order to reach this conclusion are:
• That the willingness of the partners to register the company as a limited liability type was proved in the act of granting the public deed of incorporation.
• That after granting the public deed, all legal provisions governing the chosen form of company (obligation to deposit accounts) will apply.
Vilá Abogados
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15th January 2016
