The Spanish ‘Dirección Generalde Seguridad Jurídica y Fe Pública (“DGSJFP”), in its decision of 11 October 2024, upheld the appeal lodged against the refusal of the commercial registrar to register an article in the articles of association of a limited company stating that ‘All partners […], are subject to the additional contribution consisting of compliance with and observance of the provisions agreed by the partners in the Family Protocol or Social Pact recorded in a public deed authorised on […]’.
The commercial registrar had refused to register the aforementioned article on the grounds that the future purchasers of shares in the company were not duly informed of the content of the agreement and that the requirement of the determinability of the additional contribution provided for in Article 86 of the Spanish Companies Act (‘LSC’) was therefore not met.
However, the DGSJFP goes against the criterion of the commercial registrar and considers that the obligation in which the additional contribution consists is perfectly identified through its ‘formalisation in the public deed that is described’, being perfectly knowable both by the current partners and by the future partners, the fact that its content is not published not being an obstacle.
In this sense, it establishes that the aforementioned article of the articles of association is registrable, as it does not exceed the general limits of the autonomy of the will, nor does it oppose the laws or principles of commercial companies.
Finally, he recalls that this doctrinal criterion, which comes, among others, from the Resolution of the DGSJFP of 6 June 2018, has been adopted by the legislator itself in Law 28/2022, of 21 December, on the promotion of the ecosystem of emerging companies (known as the ‘startups’ law), which provides in Article 11. 2 that ‘statutory clauses that include an additional contribution to subscribe to the provisions of shareholders’ agreements in start-ups shall be registrable, provided that the content of the agreement is identified in such a way that it is known not only to the shareholders who have signed it but also to future shareholders’.
To sum up, the aforementioned decision merely confirms the possibility of including in the articles of association of a commercial company an additional contribution consisting of the obligation to sign and comply with the shareholders’ agreement.
In this respect, it should be recalled that the inclusion of the aforementioned additional contribution in the articles of association is very relevant for the purposes of the fact that its voluntary non-compliance may give rise to the exclusion from the company of the defaulting shareholder on the basis of the provisions of article 350 of the LSC.
In this regard, it would be advisable to add in the same article of the articles of association that failure to comply with the aforementioned additional service, whether voluntarily or for reasons not attributable to the shareholder, will be grounds for exclusion from the company.
