I.- INTRODUCTION
In this article we shall comment upon the recent judgement 125/2013 pronounced by the Commercial Court of Bilbao, which evaluates the possible winding up of a company (Residencial Ribera de Santa Ana, S.L.) due to the paralysation of the corporate organs. In the case at hand, the shareholders of the company are divided into two blocks with irreconcilable postures, each of them with 50% control over the shares.
II.- EVALUATION AND POSTURE OF THE JUDGE
In a situation as described above, it is evident that neither of the groups has a controlling position allowing them to direct the company, which leads to the impossibility of approving the annual accounts of the company for the fiscal year 2009, and the non summoning of the shareholders’ meeting for approving the annual accounts for 2010 and 2011.
When evaluating the existence or non existence of a situation of paralysation of the corporate organs, we should revert, as did the judge, to articles 363 and onwards of the Capital Companies Act approved by the Royal Legislative Degree 1/2010 of 2nd July, which takes into account in article 363.1 d) and c) the possibility of winding up due to the paralysation of corporate organs to the extent that their proper functioning is impeded and it becomes manifestly impossible to achieve the corporate objective of the company.
The judgement maintains that the paralysation of the corporate organs as objective grounds for winding up is a more typical case in so called closed companies, that is to say, those in which a reduced number of shareholders contributes to the formation of confronting groups representative of a similar percentage of participation or votes, or the absenteeism of some of the shareholders, with the consequence of a continuous impasse at voting, or unfeasible voting, which impedes decision making and leads the company into winding up, as no means exist for settling the dispute.
In this way, the judge agrees the winding up of the company and proceeds to appoint a liquidator from a list of auditors held by the senior courts.
III. CONCLUSION
As well as corroborating what is set forth by the law regarding the possible winding up of a company due to the paralysation of the corporate organs, this judgement highlights the importance of developing shareholders’ agreements or mechanisms, which avoid the abovementioned situation as from the incorporation of a company. In this way, such situations may be avoided, and the consequent collapse of solid business projects, which must terminate because of differences in the points of view of shareholders and partners.
Vilá Abogados
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3rd of October 2013
