Rodolfo Fernández Cuellas, director of the Business Law Seminar at ESADE Business School and corresponding academician of the Royal European Academy of Doctors-Barcelona 1914 (RAED), addresses in the article “Juntas a la vista” (Government boards time), published by the newspaper “Expansión” in its edition of May 30, the recent legislative changes in the Spanish law of Capital Companies, in particular the point referring to the rights of partners or minority shareholders, and the doctrine resulting from the recent judgments of courts throughout Spain that recognize the right of this minority participant against the abuses of the majority of the capital, in some cases even urging the distribution of up to the total of the profits accounted despite the agreement in the opposite direction of the boards of directors or shareholders’ meetings.
Founding partner of the law firm and tax advisors Miliners and specialist in corporate conflicts between partners, the academician believes that in light of the new law the investee companies must make decisions prioritizing society as an institution and the business project. “Thus, when the general meetings are held during the next few weeks, the partners that represent the majority of the capital must attend to a criterion of responsibility avoiding impositions that attempt against the legitimate right to the social gains that correspond to all the partners”, considers Fernández Cuellas.
“The doctrine of these judgments is clear: the right to participate in social gains is essential for the partner and if the hoarding is agreed, be it total or partial, it must be sufficiently justified, otherwise the entire benefit will have to be distributed”, he considers in this article, appealing to these judicial resolutions these judicial decisions that have considered abusive and declared void the agreement of the board not to distribute dividends when the company had ample reserves and didn’t foresee remarkable investment plans. Fernández Cuellas already noted this dilemma during his admission as academician last March, when he read a speech with an eloquent title: “Las dinámicas mayoría-minoría en las sociedades de capital” (The majority-minority dynamics in capital societies).