As of October 7 2017, the Spanish Official State Gazette published the new Royal Decree Law 15/2017 of October 6 regarding Urgent Measures for the Mobility of Economic Operators within the national territory (hereinafter “Royal Decree-Law”). This Royal Decree-Law amends paragraph 2 of article 285 of the consolidated text of the Spanish Capital Companies Act (hereinafter “LSC”).
The previous version of Article 285.2 of the LSC established that the administrative body of the company was competent to change its registered office within the national territory, provided that there is no contrary provision in the company’s bylaws.
However, two different lines of interpretation exist; the first considers that a “contrary provision” to the competence of the administrative body attributes the general meeting with the faculty to agree a change of registered office. On the other hand, in contrast to said interpretation, a criteria exists whereby the mere reproduction in the company bylaws of the previous supplementary regulation is indicative of the will of the shareholders to be subjected to the legal regime in force at any time. In this way, such “contrary provision” would only exist when the company’s bylaws had been amended after the entering into force of the reform of the LSC, in order to expressly deviate from the supplementary legal regime, under which the administration organ is granted with the competence to change a company’s address within the national territory.
The purpose of the Royal Decree-Law is to clarify (i) the general rule: the competence to change a company’s registered address within the national territory originally corresponds to the company’s administrative body, (ii) and in case the shareholders consider that this competence must be held by the shareholders’ meeting, it must be thus established in the company’s bylaws, expressly denying the administrative body this competence.
Consequently, following the entering into force this Royal Decree-Law, Article 285.2 of the LSC shall have the following wording:
“As an exception to the previous paragraph, the company’s administrative body shall be competent to change the registered office within the national territory, unless otherwise provided in the company’s bylaws. It shall be deemed that there is a contrary provision of the bylaws only when they expressly establish that the administrative body does not hold this competence.”
In addition, the Royal Decree-Law contains a transitional provision stating that it shall be understood that there is a contrary provision in the company’s bylaws only when, after the entry into force of the Royal Decree-Law an amendment to the company’s bylaws was approved, expressly declaring that the administrative body of the company does not hold the competence to change the registered address within the national territory.
Ultimately, in spite of a company having a provision in it’s bylaws stating that the competence for the change of registered office belongs to the General Shareholder’s meeting, if this provision was not introduced after the entering into force the Royal Decree-Law, this provision shall not apply to the change of registered office within the national territory, and in this case, this competence shall continue to be held by the administrative body of the company.
The Royal Decree-Law entered into force the day upon which it was published in the Official State Gazette, October 7 2017.
Mika Otomo
Vilá Abogados
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20th of October 2017
