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Monday, 27 July 2015 10:55

New rules changing register office companies

In the bylaws of commercial companies not only certain mandatory questions should appear as filed where the domicile of the company, but also, in addition, can be set any mention that the partners deem appropriate.

In this regard, it is important that any article of the bylaws that seeks modified (has been inserted by legal obligation or power of the partners) will always require that the general meeting of shareholders approval by the required majorities.

This principle of competence of the general meeting on amendment of bylaws has not changed and remains in place, even with the entry into force, on 27 May 2015, Article 285.2 of the Companies Act Capital (hereinafter, LSC).

That provision allows the board of commercial companies can change the registered office (obligatory mention in the statutes) anywhere in the country, and not just anywhere in the same municipality, as it was until now, without intervention of the general meeting of shareholders. But yes, provided that the bylaws permit or has not been booked this matter to the general meeting of members, in which case the board will not have the aforementioned competition.

The consequence is that, to determine who has the power to amend the address, if the board or the general meeting, we previously have to study what the bylaws.

This legislative amendment of giving the board the extensive possibility of changing the registered office - if not contradict the provisions of the bylaws - is applicable not only for listed companies (SAC), but also for any other commercial mode as limited companies (SL), simple corporations (SA), European corporations (SAE) and new companies company (SNE).

Moreover, it can be said that this competence of the general meeting or the board, as appropriate, to change the registered office can not contradict the mandatory rules on domicile are governed by the LSC (Articles 9 and 458).

Thus, limited partnerships (SL), simple and listed companies (SA) and new companies company (SNE) have two options when setting up your home: or choose the place where the center of its effective is found administrators or the place where its principal establishment or operation.

By contrast, the European Company (SAE) must establish domicile mandatory in Spain only when the central administration is within the Spanish territory, and therefore, regardless of where the address or principal place of business or holding is located .

Failure to comply with this requirement has different consequences in either case. In the first type of companies (S.L., S.A., etc.), the discordance between the registered office and the legal result that third parties may be considered as address any of them, but without possibility of separation from society.

In the second case (S.A.E - minority figure in Spain -), this discordance may cause dissolution if the situation is not regularized within a year. And if it is regularized, members may be separated, creditors may object and may also oppose the government because of public interest.

Finally, regarding management issues and could be the change of registered office, Article 161 LSC allows, unless otherwise provided in the statutes, the general meeting of capital companies may instruct the board or submit for approval the adoption by that body of decisions or agreements on specific issues.

Moisés Murcia Priego 
Lawyer specializing in Business Law, SF Lawyers