配当金の分配及び株主の会社離脱権

a) Right to participate in corporate gains. Previous legal regulation.

Article 93.a of the CCA establishes the economic right par excellence of a company partner: the right to participate in the distribution of corporate gains.

In this sense, in Spain, companies must allocate 10% of the profits of each fiscal year to the constitution of legal reserves, which must be equivalent to a minimum of 20% of the company’s registered capital. Once said legal reserves have been constituted, and likewise any other reserves as established in the company by laws, the partner’s meeting may freely decide on the distribution of dividends providing that there are no contractual impediments (financing contracts may often prohibit said distribution) or accounting impediments (in accordance with article 273.2 of CCA, if losses corresponding to previous fiscal years exist rendering the net worth of the company inferior to share capital, any profits must first be allocated to offset said losses).

Therefore, doctrine has granted an abstract nature to this right, and although it is true that any agreement with the purpose of excluding a partner from the distribution of dividends or establishing the impossibility of distributing dividends in a general sense would be considered to be invalid, it is also true that such right does not prevent the partner’s meeting from freely deciding on said distribution depending on the legal-economic-financial circumstances of the company at the time.

Up until now, the absence of a legal principle which establishes a minimum profit to be distributed amongst partners has given rise to situations of abuse from majority partners towards minority partners. In the face of this situation, reiterated rulings from Spanish courts have established that ”to deprive, without justification, a minority partner of any of his rights to receive company profits and to proceed to systematically withhold such profits (…) is considered, whichever way you look at it, to be an abusive action, which may not under any circumstances be protected by the Courts, thus it is a matter of a preventive posture suffering from obvious illegality, which justifies the instigated and allowed challenge of the agreement of the application of the financial results, all of which would mean assigning a despotic rule of the majority”.

Despite the fact that article 347 of CCA (and, previously, article 96 of the revoked Limited Liability Companies Act) already allowed the introduction of other causes for the exit of partners, different to those contemplated in the law, it is true that the vast majority of Spanish companies do not make use of such possibility. Article 348 bis of CCA came about with the aim of avoiding abusive actions on the part of majority partners.

b) Contents of article 348 bis

The new article 348 bis of CCA establishes that starting from the fifth fiscal year as from the registration of the company with the Companies Registry, the partner who voted in favour of the distribution of company profits shall have the right to exit the company if the general partner’s meeting does not agree the distribution as a dividend, of at least a third of the profits obtained during the previous fiscal year derived from the operation of the corporate purpose, provided that said profits are legally distributable. It should be noted that the term for exercising this exit right is one month starting from the date upon which the ordinary general partner’s meeting had been held; and that this right is not applicable to listed joint stock companies.

Critics of the new article focus on three aspects: firstly, in the elevated amount to be distributed (a third of profits). Secondly, in the unfortunate wording of the article, given that although it is evident that the distribution should be conducted based upon profits derived from the operation of the corporate purposes (that is to say, atypical income or extraordinary capital gains are excluded), it is not clear whether the regulation refers to pre tax profits or profits after tax. Thirdly and finally, the very essence of the regulation is criticised since it seems to ignore the fact that the accounting situation of a company is not the same as its financial situation. For example, it is possible that a company’s annual accounts show a positive result, although the company may not be liquid or may have high debts due to the non-payment of clients (especially in the current economic climate).

Additionally, doubts regarding the imposition of article 348 bis have also arisen (that is to say whether said article is of an imperative nature or whether it may be left without effect through a statutory pact or a partner’s agreement) as well as its effects upon financing agreements with banking entities which may include clauses which prohibit the distribution of dividends.

III.- CONCLUSION.

First of all, owing to the incorrect conception captured in some press news, it should remain clear that article 348 bis of Law 25/2011 does not incorporate the right of the partner to receive a minimum amount of profits to be distributed, however, it introduces the right of the partner to exit the company if the distribution of dividends does not take place insofar as the established amount and under the legally determined conditions. The partner may exercise his exit right, but may not oblige the company to pay him his part of the dividends. In any case, the non-distributed dividends must be taken into account at the time of evaluating a partner’s shares or participations in accordance with the procedure established in article 353 of CCA.

In our opinion, despite the deficient wording of article 348 bis and that at least the obligation to distribute dividends should be conditioned to the fulfilment by the company of certain liquidity ratios, initially the introduction of this legal principle within our legal system should be positively evaluated, since it has no other purpose than to endeavour to avoid the abuse of majority shareholders, who systematically reject the distribution of dividends in order to avoid minority shareholders benefiting from the corporate activity.

However, once again, we must let time go by so that the Spanish courts start to apply said article and clarify doubts regarding the interpretation and imperativeness of its content in order to judge the success or failure of the regulation.

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ラモン・マニャ・トーレス : rmt@vila.es

2012年2月3日