David Siuraneta – Abogado Figueras Legal
It is not uncommon that, for very different reasons, two antagonistic sides of partners are created within the capital of the companies and that the general meeting fails to adopt agreements or approve the annual accounts, with the serious consequences that this will have in the normal operation of the company (for example, a company that does not have the annual accounts duly approved and deposited may find it difficult to access bank credit or its participation in public tenders). If this situation is not merely one-off and lasts for several years, one can speak of “paralysis” in the functioning of society and consider that it incurs because of dissolution.
Article 363.1 of Royal Legislative Decree 1/2010, of July 2, which approves the revised text of the Capital Companies Act (TRLSC), entitled “Causes of dissolution” establishes, among others, that the company must be dissolved due to the cessation of the activity or activities that constitute the corporate purpose (which will happen, in any case, after a period of inactivity of more than one year), due to the manifest impossibility of achieving the company purpose or by the paralysis of the governing bodies of the company so that their operation is impossible.
If, faced with the systematic blocking of its initiatives, the administrator acts with minimal diligence and submits to the consideration of the partners the possible dissolution of the company, it is worth asking whether voting against such initiative by the partner or group of hostile partners and the the consequent need for judicial processing to begin is the best option.
Bear in mind that if the company incurs in any of the cases provided for in the aforementioned article, the dissolution must be agreed, in the case of limited companies, by the majority of the validly cast votes, provided that they represent at least one third of the corresponding votes. to the social participations in which the capital stock is divided and without the blank votes being counted; or with the quorums and majorities provided for in articles 193 and 201 of the TRLSC, in the case of public limited companies.
The Supreme Court, as well as several Provincial Courts of Appeals, have had the opportunity to analyze cases like the one described above, and it can be concluded that the fact of not preventing the general meeting from agreeing on the dissolution of the company does not in any way diminish the rights of the partner. that it considers that the administrator has acted irregularly.
There are already several decisions in which it is admitted that the judge can declare the extinction of a company, not only when the result of the vote of the agreement in the meeting had been a tie (it is the typical case of a 50% / 50% vote, in favor and against) but, even when the result had been negative, although in these cases it must be possible to prove that the meaning of said vote was contrary to good faith and issued only to avoid the extinction of the company, thus preventing to other partners, without just cause, who could collect the corresponding liquidation fee.
The conclusion reached after the analysis of the resolutions dealing with this matter is that if any partner considers that the administrator acted unfairly (for example, because he sold assets below their real value in Benefit of a third company), what it has to be done is holding him accountable by taking the appropriate action, not voting against the dissolution and liquidation of the company, for this is not the most appropriate way to get a reparation.
In this sense, for example, a couple of resolutions of the Barcelona Provincial Court of Appeals state that “once the function and structure of the final liquidation balance is taken into account, it cannot be challenged because it does not reflect specific operations or inflows and outflows of money from the social bank ”, adding that if a partner considers that there have been irregular operations having caused damage to the company, the partner is entitled to take liability actions against the administrator or liquidator”.
