The resolution of the General Directorate of Legal Security and Public Trust – GDLSPT (Dirección General de Seguridad Jurídica y Fe Pública-DGSJFP) of 28th July 2021 regarding the refusal of the Registrar I of the Commercial Registry of Valencia to register a public deed of resolutions adopted in the general meeting of a limited liability company was published in the Official Gazette on 6th August 2021.
In this case, the general partners meeting adopted the decision to wind-up the company. Said agreement was made with a favourable vote of 66,60%. Article 13 of the company bylaws has the following wording:
“Unless the Law or the bylaws provide otherwise, the corporate agreements shall be adopted by a majority of validly issued votes, provided that they represent at least a third of the votes corresponding to the membership interests…”
“By way of exception to the provisions of the preceding paragraph, 73% of the votes in favour must be counted for the adoption of the resolutions contained in the following list:”
“- The transformation, merger or extinction, winding up and liquidation…”
The registrar suspended the registration because the quorum set forth in article 13 of the bylaws for winding up a company was not met.
An appeal was filed against this decision, alleging that because the company was suffering losses which reduced the net worth to an amount below half of the company capital, the company incurred in legal grounds for mandatory winding up and therefore the aforementioned resolution was adopted.
The Directorate General affirmed that the nature of the bylaws and their imperativeness have been highlighted by the jurisprudence of the Supreme Court on several occasions, but that on the other hand, in this particular case, it explained that the agreement in question is based upon legal grounds for winding up, namely the existence of losses, which is provided for in articles 362 and 363.1.e of the Spanish Companies Act (Ley de Sociedades de Capital – LSC), and that in accordance with article 364 of the same law it is only necessary for such agreement to be made with an ordinary majority as set forth in article 198 thereof. In this case, the agreement for winding up adopted by the general meeting is a mandatory act and a declaration of the existence of such losses and, hence, the existence of the legal grounds for obligatory winding up.
Furthermore, the Directorate General adds that “this regulation is of an imperative nature, therefore, a reinforced majority cannot be established in the statutes”. In the resolution dated 4th May 2005 from the very same Directorate General, it was deemed that a purely voluntary and discretionary winding-up agreement adopted by the general meeting may be conditioned by the company bylaws to a specific enhanced majority, “but not those agreements which simply establish or corroborate the existence of legal grounds for winding up”. “It is in this perspective that the article of the bylaws cited by the registrar in their decision must be interpreted in a way that it does not distinguish between one case or another, since it refers to all winding-up agreements and, furthermore, leaves aside those cases for which the Law provides otherwise”.
It concluded that “said bylaw regulation may only be applied with regard to the <simple agreement of the general meeting> referred to in article 368, which does not apply to the case at hand”.
Finally, the Directorate General upheld the appeal and revoked the appealed decision.
Vilá Abogados
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15th October 2021
