Closed companies and, especially, family businesses are today the type of society that mostly makes up the Spanish corporate network. We understand by family business that in which the property or the power of decision belongs, totally or partially, to a group of people who are blood relatives or related to each other. Closed mercantile companies are organized through two sole partners or groups of partners (families) and each of them subscribes to 50% of the share capital, or several partners or groups of partners with fragmented subscriptions (for example, three partners / families, which each subscribe 33% of the share capital). Likewise, the provision of statutory clauses that reinforce the quorum for the constitution of the General Meetings or establish certain reinforced voting majorities is frequent.
In these situations, society can hardly function by majority-minority criteria and disagreements frequently arise between partners for personal, family, business approach, etc. and that is when the partners enter the game of "abuse of equality." This means that when each partner has 50% of the votes or, in any case, blocking capacity (hence the "equality") and the need for a majority (usually 51% minimum) to adopt social agreements, tends (abusively) not to vote on those agreements that do not interest one of the partners, so that they cannot be approved. The immediate consequence is the impossibility of adopting agreements, which leads to the blocking of social bodies.
This blocking situation harms the company's assets, since the corresponding agreements are not met, commercial and fiscal obligations are breached (for example, the approval and deposit in the Mercantile Register of the annual accounts), which may lead to the imposition of sanctions that can reduce the value of the assets of the company in question. In addition to many other matters within the competence of the General Meeting, which cannot be adopted and that negatively affect the operation of the company such as the appointment and separation of the directors, the liquidators and, where appropriate, the account auditors , as well as the exercise of the social action of responsibility against any of them; Modification of the bylaws; the increase and reduction of the share capital; the acquisition, disposal or contribution to another company of essential assets; or the transformation, merger, spin-off or global assignment of assets and liabilities and the transfer of domicile abroad.
There are several solutions to a situation of blockade already consummated such as the joint sale of the company, the sale of one or several partners to a third party, the granting of purchase or sale options in favor of one or more partners, the liquidation agreed or the division of the company
To solve the blockade of the corporate bodies, the Capital Companies Law provides that the company must be dissolved by the paralysis of the corporate bodies when its operation is impossible. For this, it is necessary to take a dissolution agreement by the General Meeting adopted by ordinary majority (51% or more) and, previously, the convening of said Board by the administrators within a period of two months. If it is possible to adopt the dissolution agreement, the liquidation period is opened and, with such opening, the administrators will cease their duties. That is when the liquidators are appointed. Once the liquidation operations are completed with the approval of the final balance, the division of the social assets will proceed. Finally, the liquidators will grant a public deed of extinction, which is registered in the Mercantile Registry, together with the deposit of the books and documents of the extinguished company, all seats related to the company being canceled.
However, in the case of disagreement about the dissolution of the company, the only effective mechanism that assists the partner is the judicial procedure: the filing of a demand for judicial dissolution of the company. However, what is really advisable are the preventive measures, such as the statutory provision of a cause of separation of the partner due to blockage of the social bodies, which allows it to separate from the company if it is found, according to objective criteria (a maximum number consecutive times and a prudential term during which it is not possible to establish the General Meeting or adopt agreements), the effective impossibility of operating the company; or agree, also in the bylaws, an agreed unlocking procedure that avoids definitive stoppage.
There are also several alternative solutions to a situation of blockade already consummated, such as the joint sale of the company, the sale of only one or several partners to a third party, the granting of purchase or sale options in favor of one or more partners, the liquidation agreed or the division of the company. All this, without prejudice to resorting to a mediation process as an alternative dispute resolution mechanism, in which an impartial third party seeks to facilitate communication so that the parties themselves are able to resolve a conflict.
In conclusion, depending on the patrimonial situation of the company, the economic capacity of the partners and other circumstances, we observe that, in fact, there are different alternatives to judicial dissolution. Therefore, although we are faced with insurmountable confrontations between partners, in which it is complicated and uncomfortable to reach an agreement, the truth is that, for the sake of business and the satisfaction of all parties, the most convenient and, always Under the appropriate prior advice, it is the implementation of alternative mechanisms to a demand for judicial dissolution.
Article published in the July-August issue of 3 Economy
