Author: César Ayala

Subordination of Credits of Common Shareholders (art. 93.2.3º LC)

The voluntary bankruptcy Tremon Grupo Inmobiliario SA has motivated co cin S entencias the Supreme Court (24 April, 10 July October 23, October 31 and November 22, 2018 ) and a writ of inadmissibility ( December 19, 2018) that address the qualification as persons related to the bankrupt to the partners that participate in the companies belonging to the group of companies of the insolvent, as established in Article 93. 2.3º of the Bankruptcy Law (LC). Although the contest of the Tremon SA Real Estate Group was declared on December 4, 2008, and therefore the norms that the Supreme Court has applied have been in force at that time , the repertoire of judgments clearly illustrates two fundamental aspects in the matter: (i) the temporary moment to consider for the subordination of the credit, and ( ii ) the type of group of companies referred to in article 93.2 .3 of the Bankruptcy Law.

Regarding the first question, how is it peaceful , what devalues iuris et de iure credit is the link between creditor and debtor; in other words, the special knowledge of the financial situation of the insolvent of which they have , among other persons, their partners if the bankrupt is a legal person , except – in this last case – the credits different from the loans or acts with analogous purpose , which are those ” destined to the financing of the insolvent, either by the legal nature of the business (loans, credits, discount, leasing, etc.), or because, although the legal nature is not that of a financing business, a business whose economic purpose is the financing of the insolvent party is being concealed “, According to Sentence 125/2019 of the Supreme Court of March 1 , and among those who , according to the criteria postulated by Judgment 446/2018 of the Provincial Court of Madrid of July 20 , it seems to be also the postponement of the price in the purchases . Therefore , credits that were born before the creditor had acquired the status of a person related to the debtor will be subject to subordination.

Regarding the second question , the cited judicial decisions warn that – not since Law 38/2011, which refers to the definition of group of companies established by Article 42.1 of the Commercial Code – but from the very enactment of the same. Bankruptcy Law , the criterion to appreciate group of companies is ” direct or indirect control “, discarding the “management unit”; therefore, the subordination will operate for the credits of the companies belonging to a vertical or ” hierarchical ” group, and should be discarded for the companies belonging to a horizontal or “coordination” group.

In any case, having applied the original bankruptcy legislation , prior to the modifications introduced in Article 93.2.3º LC by (i) Royal Decree Law 3/2009, which appended “whenever these – the partners of the companies of the same group of the insolvent company – meet the same conditions as in number 1 of this section”, and ( ii ) the Law 38/2001 that added the qualifier of “common” to “its partners”, in such a way that the diction of the precept was as follows: «3.º The companies that are part of the same group as the company declared in bankruptcy and common partners, provided that they meet the same conditions as in the 1st number of this section ‘questions are not clear – for now – by case law. Such open questions are:

1st        Would the criterion – related to the prior nature of the credit to the specially related person status – be applicable to the “personal and unlimitedly responsible for social debts” partners, despite the fact that the wording of number 1 of art. 93. 2 LC seems toomit it expressly for such partners?

2nd        Why are the credits of “The companies that are part of the same group as the company declared in bankruptcy” (under the criterion of “direct or indirect control”) , and also those of the partners that own 5% or 10% of the insolvent company , being clear that these percentages do not provide the “control” of that? Is not it incongruent?

3rd        What is the reason why the precept includes the common partners, who are – in their own right – the partners of the bankrupt that meet the minimum requirements for participation in their capital established in number 1 of art. 93. 2 LC? Are not already said partners of the insolvent – ex iure proprio – considered persons related by said number 1; and therefore is not established by the number 3 a reiteration or redundancy?

Answer to the first question

S hile it is understandable that “ordinary members” have to have such a condition at the time of the birth of credit, as the ultimate reason for the subordination is precisely that partners financed the insolvent with knowledge of the situation, and – therefore – the subordination can not be imposed on the person who financed when he was not yet a member , such subordination requirement only reaches – in the 1st section – the capitalist partners, excluding the partners of companies of persons (with the exception of the limited partners) who are fundamentally what s , according to the law (Article 148 CCO) are personally and unlimitedly responsible for social debts.

It is not well understood, then, that exclusion of the necessary temporary element for the subordination of the credit of the capitalist partners, because the same reason (link of the partner at the time of loan) exists in a capitalist society as in a society of persons,because although in the latter there is not properly social capital, if there is a connatural “portion of interest” of the partners (Articles 140 and 143 CCO and Article 1689 CC).

Although the reason could be that civil and collective partners are born administrators of civil society (Article 1695 CC) , collective or limited (Article 129 CCO) , and therefore its subordination regime must match that of the members of the board of the company sestablished by Article 93.2.2º of the Bankruptcy Law, it remains true that the contractual regime societies can (i) exclude the condition of nato administrator of all partners, allocating such function to a specific partner or partners , or ( ii ) r indicates a system of decision-making by majority, therefore, exempt the member who voted against the decision to participate in the negative effects of social management. However , and n any case, it should also be agreed that credit managers non-members of equity capital companies against the insolvent debtor should also be excluded from subordination if they were born before holding such office , since, at such a time prior to their appointment, the subjective reasons that lead to devalue the credit.

In this line , the answer to this question can be found in the Sentences of the Supreme Court of March 4 , April 24, October 23 and November 22, 2018 , which address the subordination of capitalist partners in a sufficiently abstract manner. so that your reasoning can be transferred without problem to the personal partners . In effect, this jurisprudential repertoire clearly establishes that the concurrence of the circumstances that justify the consideration of a person specially related to the debtor makes more sense that it is referenced at the moment in which the legal act arises whose insolvency relevance is to be specified (the subordination of the credit), that to the later one of the declaration of bankruptcy, without making any distinction between the typology of the creditor partners. Therefore, the temporary criterion of activation of the subordination (moment of birth of the credit) predicable of the capitalist partners, should be applied to the personalist partners – and even to the administrators of the insolvent one – because there is identity of reason among all these assumptions

Answer to the second question

As stated in Sentence 125/2019 of the Supreme Court of March 1 , there is no identity of reason between the subordination of the credits of the partners and the subordination of the credits of the group companies. And if there is no reason identity, it is reasonable that the assumptions receive different treatment : while the basis of the subordination of credits of group companies is – basically – in which the credit of the insolvent company benefits the group and , therefore, , in its own benefit , the foundation of the subordination of the credits of the partners resides in the greater information or capacity of influence that these have (all this according to the aforementioned Judgment) .
However, and without prejudice to the respect that the High Court deserves, the reader will be warned that it will attribute influence capacity to a partner holding 10% of a non-listed company. to the point of subordinating your credit it is somewhat exaggerated,since the degree of participation – despite being significant – and remains minoritari or insufficient, inter alia, to ensure unlimited access to financial information society. And if we counterpose the limited participation allowed to a partner before subordinating itscredit , with the criterion of “control” that implies the direct or indirect possession of a significant portion – certainly more than 10% – of its social capital , we find in said excessive penalty des balance of the insolvent partner. And although it could be objected that the direct or indirect possession of the majority of the voting rights of the bankrupt does not exhaust the assumptions of “group of companies”, it is also true that, empirically, it can be verified that the power to appoint or dismissing administrators is closely linkedto the condition of the direct or indirect majority partner.

In sum, although a ratio legis could be appreciated different for the partners of the insolvent company and the companies of its group, the difference does not justify such a disparate treatment in the maximum percentage of participation in the bankrupt before being allowed to subordinate the credits. De lege ferenda would propose, then, the subordination (i) of the partner who directly or indirectly controls the insolvent party ; ( ii ) of the companies that are part of the same group as the insolvent company – which will necessarily be shared by the control partner – understood as the one that holds the direction of its operational and financial policy, or falls back in any of the circumstances indicated by article 42 of the Commercial Code ; and ( iii ) common partners that exceed the significant participation threshold, as will be explained in the following reply.

Answer to the third question

It is not easy to answer the reason why – in fact – what Article 93. 2.3º LC states is that the credits of the companies that are part of the same group as the company declared in bankruptcy and its partners will be subordinated. common , provided that thesecommon partners are already subordinated their credit for being related persons in their own right . This It is a reiteration or redundancy of difficult utility or explanation , since these “common” partners are only considered as related persons, if they are already related to article 93. 2.1º LC . Therefore declare persons related to the “common partners, provided that they meet the same conditions as in the 1st number of this section” tautology seems clear justification uncertain.

In the absence of real or judicial interpretation that illuminates the meaning of the provision,  may be followed would be applying compliance with the requirements of point 1 of paragraph not insolvent, but the company belonging to same group , hypothesis already advanced by QUETGLAS ( The bankruptcy of the group of companies , page 213) . In this case, the following would be considered to be specially related persons: the partners who exceeded the 5% and 10% share respectively in the company of the same group as the bankrupt and who – at the same time – maintained some participation in the insolvent company, however minimal it might be.

The legal reason behind the interpretation would be a composition of the reason for the subordination of credits of the partners of the bankrupt ( influence, information , with the criticism that has been made on this criterion in the answer to the second question) with a presumption of having such influence and information on the bankrupt one of its partners – even if not meet the thresholds of 5% and 10% stake in the insolvent – that reach at least those percentages in any other company of the group of the bankrupt.Exist, in this case, a rebuttable presumption in law that one partner which exceeds the percentages required in a group company of the insolvent, however distant that may result in the organization, and also has any stake in the insolvent itself, even if it is small, it deserves to be considered a person especially related because participating in the capital of more than one society denotes a link with the “policorporative enterprise ” more narrow and with more visions of permanence (partner insider ) than that owned byanother exclusive partner of a group company , even if both are minority .

In other words, whenever a partner of a company in the group of the bankrupt exceeds the legal limits of participation in it , the amount of any participation in the bankrupt itself – before the granting of the loan – would transmit the subordinate effects formerlyproper to the partners of the bankruptcy , for having also propagated the presumptions of influence and information of the bankrupt that the former have.

The proposed interpretation has to be contrasted with the jurisprudence relapsed on the subordination of credits owned by partners participating in group companies , and especially with Sentence 239/2018 of the Supreme Court of April 24 , which is particularlyillustrative of the ” partners c omunes “, although without explaining the meaning of the apparent redundancy:

  • Apparently, the proposed interpretation would be divergent from the jurisprudential justification of the requirement introduced by RDL 3/2009 that the “common partners ” of art. 93. 2.3º LC ” meet the same conditions as in number 1 of this section” , requirement , justification that is summarized in that

“Did not have í a sense make worse condition or na partners companies within the same group of the insolvent that members of the insolvent itself, inasmuch as the former not being required a certain percentage m í nimo of participation or n the law expressly exig I a in the case of partners of the insolvent “

However, this explanation is perfectly transferable to the participation of the “common partner” in the company of the insolvent group – not in the bankrupt company itself – to whom the reform also equates with the partners of the insolvent for the purpose of participation in capital (A certain threshold is required, be it 5% or 10%, both in the insolvent company and in any other company in the group) . In this way, the exceeding of said threshold in the group company, together with the taking of participation – whatever it may be – directly or indirectly in the insolvent company , could be valued as an external signal of special linkage of the creditor with the corporate group, with the usual presumption of information and influence, which would justify the subordination of your credit.

It should be added that the express admission of the “indirect” participation in the bankrupt (article 93.2.1º LC) would allow a member of an upstream company of the group of the insolvent party , which has a share of more than 10% may be “indirectly” a member of the insolvent company – which would meet the conditions of subordination – without having any direct participation (for example, when you own 10% of the parent company at 100% of the bankrupt).

  • On the other hand, the proposed interpretation is not misaligned purpose of reduction of the subjective scope of the subordination of credits, operated by Law 38/2011 , when introducing in art. 93. 2.3º LC the requirement that the members of the company of the same group be “common” , as expressed in the Judgment:

“However, it is not so clear that the requirement that it be a common partner, meaning that it was not only the company of the group of the insolvent, but also the latter, was implicit in the original drafting of the precept. It was convenient not to extend subordination to external partners indiscriminately, but it is not so clear, as in the previous case, that under the original wording the standard would like to reduce this extension by limiting it to common partners. “

The proposed interpretation does not stop reducing this subjective scope, although to a lesser extent than that which is inferred from the literal nature of the rule, which reduces the subordination to those partners that are already subordinated creditors by virtue of the overcoming, directly or indirectly. , of the legal thresholds foreseen (Article 93.2.1º LC), an interpretation that would turn out to be – by the exposed – a redundancy without apparent constructive utility.

In any case, the question remains open until the Supreme Court does not begin to resolve appeals corresponding to litigation arising from open competitions in which the current wording of Article 93. 2.3 LC is effectively applicable.

The distressed-assets buyer must pay the amounts not disbursed by FOGASA

Judgment 981/2018 of the Labour Chamber of the Supreme Court, dated November 27, 2018, which has been said to seriously compromise the viability of productive units in bankruptcy headquarters has to be valued according to their proper intelligence .

Although some voices have pointed out that, in accordance with this ruling, the Social Jurisdiction can turn into a paper that has been declared by the Bankruptcy Judge in the Adjudication Order about the existence or not of succession of company for the purposes of article 44 of the Statute of the Workers (ET) – which determines the subrogation of the new employer in the labor and Social Security rights and obligations of the previous one, including those pending, in accordance with the third section of the precept – the truth is that the Commercial Judge does not have, nor has never, competence to rule on whether or not there is succession of a company, because this undoubtedly exists by legal imperative when the circumstances provided by the rule occur.

A different question is that – if there is a succession of a company – the Insolvency Judge has the power to agree that the purchaser is not subrogated to the amount of the salaries or indemnities pending payment prior to the alienation that is assumed by the Guarantee Fund Salary (FOGASA) in accordance with article 33 ET. This possibility is expressly provided for in article 149.4 of the Bankruptcy Law (LC). But what should not be controversial is whether the outstanding salaries that have not been paid by FOGASA have to be paid by the awardee, because in effect, by virtue of the succession of the company, such outstanding compensation has to be paid by the new employer , which has been subrogated in the pending obligations of the previous one.

The Supreme Court uses four arguments in the Judgment that serve to support that decision, arguments that we will explain, below, in order of relevance:

1º.- The article 44 ET is a norm of imperative character, reason why to exception its application would require an express legal declaration, declaration that does not exist in the law.

2º.- Article 148.4 LC expressly refers to Article 64 LC which refers, in turn, to the rules on collective modification and termination of employment contracts, a reference that would be superfluous to admit that the awarding of productive units implies a true business succession “Since the acquisition of the autonomous productive unit would not entail the assumption of the workers of the employer, so the liquidation plan should be limited to contemplate the conditions of realization of assets and rights of the insolvent, but without any regard to the situation of workers”

3º.- The interest of the contest referred to in article 148.2 LC can not become the supreme criterion that governs the adjudication of the goods, and therefore its application can not be against legem.

5º.-  In the factual case, the substantive requirements are met, so that company succession can be appreciated.

Therefore, this Judgment, in our opinion, does not imply a change of paradigm in terms of the labor consequences of a bankruptcy acquisition of an independent productive unit, but confirms what is provided by law: the bankruptcy judge can agree that the purchaser it is not subrogated in what was paid by FOGASA, but it does not have anything in regard to the amounts that have not been paid by that body – in accordance with article 33 ET – that remain in the liabilities of the purchaser.

Act 5/2019 on contracts of credit for real estate.

This Act, which transposes Directive 2014/17 / EU, is structured in four Chapters, which correspond to the essential lines of regulation, twelve additional provisions, five transitory provisions, one derogatory provision and sixteen final provisions, as well as two Annexes , the I referring to the European Standardized Information Card (FEIN) and the II to the Calculation of the Annual Equivalent Rate (APR). Chapter I includes the general provisions that reach the object, scope of application, irrevocable character of the rights it recognizes for borrowers and definitions for the purposes of the Law.

Chapter I includes the general provisions that reach the object, scope of application, irrevocable nature of the rights it recognizes for borrowers and definitions for the purposes of the Law. Chapter II establishes the rules of transparency and conduct, in particular, to the concession responsible for financing that affects real estate, as well as to favor the progressive implementation of a reliable credit market. Chapter III establishes the legal regime of real estate credit intermediaries. Finally, Chapter IV is devoted to the regulation of the sanctioning regime. For these purposes, the obligations established in this Law have the character of rules of order and discipline for real estate credit intermediaries and real estate lenders.

Act 1/2019 on Business Secrets

The BOE nº45, of February 21, publishes the expected Act on Business Secrets, which will come into force after the usual vacatio legis of twenty days. This law transposes to the Spanish legislation Directive (EU) 2016/943 of the European Parliament and of the Council, of June 8, 2016, relative to the protection of undisclosed technical knowledge and business information (trade secrets) against obtaining it, illicit use and disclosure. The provisions of this law give the holder of business secrecy a subjective right of a patrimonial nature, susceptible to be transmitted, in particular, of transfer or transfer with a definitive title and license or exploitation authorization with the objective, material, territorial scope and temporary that in each case is agreed upon. This law also contains an open catalog of defense actions against the violation of business secrecy and regulates the calculation of compensation for damages, in line with the patent infringement; and establishes a period of prescription of 3 years for its exercise. Finally, procedural matters (1) incorporate rules to preserve the confidentiality of business secrets that are contributed or generated in the process; (2) steps are set up to verify facts, access to sources of evidence held by the counterparty or third parties and, where appropriate, evidence assurance; and (3) special rules are incorporated in the matter of protective custody, as well as specialties in relation to the substitute bond. It should be noted that the abuse of right or reckless exercise of actions in matters of industrial secrecy may be sanctioned by the Court.

Amendment of article 348 bis of Capital Companies Act

Act 11/2018, of December 28, which modifies the Commercial Code, the revised text of the Capital Companies Act approved by Royal Legislative Decree 1/2010, of July 2, and Law 22 / 2015, of July 20, of Audit of Accounts, in the matter of non-financial information and diversity (BOE 29.12.2018) modifies article 348 bis of the Capital Companies Law, modification that will be applicable to all the Boards that are held as of 30.12.2018 (Transitory Provision and Seventh Final Provision). The new wording (1) extends to the groups of companies (Article 42 of the Commercial Code) the application of the right of separation of the partner due to lack of distribution in the form of dividends of at least twenty-five percent of the profits obtained during the previous year that are legally distributable provided that benefits have been obtained during the previous three years; and (2) contemplates cases of exclusion of such separation right that refer to (a) listed companies, (b) sports stock companies (SAD) and bankruptcy situations, refinancing agreements, extrajudicial payment agreements, and the communication to the Court of negotiations aimed at obtaining said measures (Article 5 bis of the Insolvency Act).

The new text is the following:

Article 348 bis.. Right of separation in case of lack of distribution of dividends.
 
1. Except as otherwise provided in the bylaws, after the fifth fiscal year as of the date of registration in the Company’s Commercial Registry, the member who had recorded in the minutes his / her protest due to the insufficiency of the dividends recognized shall have the right of separation in the case that the general meeting does not agree on the distribution as a dividend of at least twenty-five percent of the profits obtained during the previous fiscal year that are legally distributable provided that benefits have been obtained during the previous three years. However, even when the above circumstance occurs, the right of separation will not arise if the total of the dividends distributed during the last five years equals, at least, twenty-five percent of the legally distributable benefits registered in said period.
The provisions of the preceding paragraph shall be understood without prejudice to the exercise of the actions to challenge corporate resolutions and liability that may correspond.
2. For the suppression or modification of the cause of separation referred to in the previous section, the consent of all the partners will be necessary, unless the right to be separated from the company is recognized to the member who has not voted in favor of such agreement.
3. The period for the exercise of the right of separation shall be one month from the date on which the ordinary general meeting of shareholders was held.
4. When the company is obliged to draw up consolidated accounts, the same right of separation must be granted to the partner of the parent, although the requirement established in the first paragraph of this article is not given, if the general meeting of the mentioned company does not agree the distribution as a dividend of at least twenty-five percent of the consolidated positive results attributed to the parent company of the previous year, provided that they are legally distributable and, in addition, consolidated positive results attributed to the parent company during the previous three years have been obtained .
5. The provisions of this article shall not apply in the following cases:
a) In the case of listed companies or companies whose shares are admitted to trading in a multilateral trading system.
b) When the company is in competition.
c) When, under the insolvency law, the company has informed the competent court for the declaration of its insolvency the initiation of negotiations to reach a refinancing agreement or to obtain accessions to an advance proposal for an agreement, or when has informed the court of the opening of negotiations to reach an out-of-court settlement of payments.
d) When the company has reached a refinancing agreement that satisfies the conditions of irrescindibility established in the bankruptcy legislation.
e) In the case of Sports Public Limited Companies.

Organic Act 3/2018, of December 5, on the Protection of Personal Data and Guarantee of Digital Rights

B.O.E. No. 294 dated December 6 publishes the Organic Act 3/2018, of December 5, on the Protection of Personal Data and Guarantee of Digital Rights, which develops, among other constitutional precepts, article 18.4 of the Spanish Constitution, thus limiting the use of information technology to guarantee the honor and personal and family privacy of citizens, as well as the full exercise of their rights. The new Act harmonizes the legal regime in the matter with the provisions of Regulation (EU) 2016/679, and repeals Organic Law 15/1999, of December 13, on the Protection of Personal Data, however, in accordance with the fourteenth additional provision, the regulations on exceptions and limitations in the exercise of rights that had entered into force prior to the date of application of the European regulation and in particular articles 23 and 24 of Organic Law 15/1999 , will remain in force as long as it is not expressly modified, replaced or repealed The text consists of ninety-seven articles structured in ten titles, twenty-two additional provisions, six transitory provisions, a repealing provision and sixteen final provisions, and will come into force daily following its publication in the Official State Gazette.

Supreme Court Judgment 1505/2018

As the reader will not have gone unnoticed, on October 18, 2018, Judgment 1505/2018 of the 3rd Chamber of the Supreme Court, dated October 16, was published, declaring – with two particular votes, one concurrent and the other dissident – that the taxpayer of the Stamp Duty Tax must be the lender, and not the borrower, mainly because the greatest interest in the mortgage guarantee is registered in the corresponding property registry (constitutive requirement) lies precisely on the financing bank entity. Although on the same date, the spokesman of CECA (Spanish Confederation of Savings Banks) argued that the issue was of a tax nature, and not civil-patrimonial, so the claims of the mortgage debtors should be made directly to the regional haciendas – what seems to us legally dubious. However, one day later, the president of the 3rd Chamber announced his intention to convene a plenary session that decides the following (by order) pending appeal on the same matter, in order to confirm or modify this jurisprudential line. In any case, Sentence 1505/2018 would be definitive and binding, and only an ordinary remedy of amparo before the Constitutional Court would be against it, of uncertain prognosis, since the right to legal security is contained in Article 9 of the Constitution, and it does not result in a right or freedom from those included in articles 14 to 29.

The Grouping of Companies and its Interest

As the doctrine has repeatedly made clear, there is no concept of a unified group of companies in Spanish law, and it is also complicated that such total unification will occur in the future, since the requirements to consider the existence of a group of companies for certain purposes (for example, corporate) are due to different reasons from those necessary to consider it for other purposes (for example, for tax purposes or for labor purposes), resulting – besides – that the existing definitions are not accompanied by internal regulation of the phenomenon, but they are mainly due to legislative protection purposes to third parties.

However, in general mercantile terms, the definition of a group (Article 42.1 of the Commercial Code) constitutes the fee to which the regulations that discipline specific sectors within the commercial sphere are remitted, such as the company (Article 18 of the Capital Companies Law), the bankruptcy (Additional Provision 6 of the Bankruptcy Law), or that of the securities market (art. 5 of the Securities Market Law). Such group definition is based on the concept of “control” – there is a group when one company has control of another or others – without the legislator being able to define, in turn, what this control consists of, although it establishes the presumption iuris tantum of existence of such control when the dominant company holds, directly or indirectly, the majority of the voting rights of the dominated company, or has the direct or indirect capacity to appoint the majority of the members of its management body. Although the precept literally states that there is a group when the dominant society “holds or can hold”, we have omitted this nuance, since all societies can potentially hold control of another or others (it is enough to acquire the necessary social participation), but obviously this potentiality can not be included in the definition of a group of companies.

The control criterion adopted by Article 42 CCo refers directly to the relationship of subordination or vertical between the companies that make up the group, with a dominant company and dominated companies; Therefore, it implicitly excludes the formation of groups in a coordination or horizontal relationship between the societies that make them up. Within the relationship of subordination, control seems to be appreciated through the criterion of majority participation in the capital of the dominated company. But this does not mean that the criterion of unit of decision has to be discarded; On the contrary, this criterion can support by its own means the qualification of a group of companies as a corporate group.

As mentioned above, article 42 CCo presumes iuris tantum that there is control – and therefore a corporate group – when the dominant company holds the majority of the voting rights of the controlled company. However, the presumptive nature of such a qualification necessarily implies that not all the relationships of majority participation, direct or indirect, should be classified as groups. In effect, the norm seems to require an additional component to the mere majority participation; said component being its control, or rectius, the decision unit between the dominant and the dominated. Consider that, if this additional component were different from the decision unit, it would not make sense for the group of companies to be required to consolidate annual accounts.

The criterion used by Article 42 CCo partially translates into Spanish law the notion of “related companies” included in article 3.3. of the Commission Recommendation of May 6, 2003, on the definition of micro, small and medium-sized enterprises, excluding the presumption of existence of a corporate group in the event of exercise of dominant influence of one company over another based on a contract or in a statutory clause; in which case, the burden of the procedural evidence (onus probandi) on the existence of control will fall on whoever alleges its existence.

hus, in the Spanish internal order will qualify as a corporate group, with all the legal consequences that this may entail, to the relationship between a majority owned by another, unless the interested party demonstrates that, although there is such majority participation – Objective and easily demonstrable element – there is not, on the contrary, a unit of decision, which turns out to be an element of more arduous and subjective demonstration for a third party litigant. Thus, it seems that the legislator, through such presumption iuris tantum, seeks to protect or defend such third party that alleges the existence of a corporate group to defend their interests, as it will estimate its existence provided that the majority participation is proved, either directly or indirect, in the dominated society. And if any of the companies of the group discusses such qualification, on it will fall the proof to demonstrate that the necessary unit of decision does not exist. Therefore, the nuclear concept of “unity of decision” resounds in silence – or is conspicuous by its absence – since, although Article 42 of the Commercial Code does not use this expression, or even suggest it, it seems that the straight line interpretation of the precept has to travel that motor axis, which imbues and is inherent to the whole notion of “group of companies”

In line with the foregoing, the existence of a corporate group (a) will be appreciated when the majority share of the parent company in the dominated company, and the decision unit between both; (b) when only the majority participation is present, if it is not possible to prove that there is no decision unit between the parent company and the parent company; and (c) when, in spite of the lack of majority participation, the interested party is able to prove the existence of a decision unit, no matter how small the assumptions in which this may occur may appear. In assumptions (a) and (b), the rule presumes that the majority participation entails the imposition of the business criterion of the majority shareholder – which is absolutely lawful as long as said criterion is not imposed abusively – while in the case (c) the unit of decision, in the absence of participation that supports it, can be based on statutory provisions, on parasocial agreements, or on the so-called “domination contracts” (unrelated to our legal system, but recognized in legal systems such as German or Brazilian), or in any other legitimate form of dominative control not based on a majority stake in the share capital.

Of course, they always plan on the vertical or control group relationship both (a) the external risk of derivation of responsibility towards a third party from a subsidiary to its majority partner or even to the head of the group, such as (b) the risk internal due to the legal remedies that the minority shareholders have against strategic decisions of the parent company that adversely affect the subsidiary in which they participate.

At least the doctrine of the lifting of the veil should be cited – if there is patrimonial confusion between the societies of the group or animus fraudandi of any of the societies of the group – of the doctrine of the administrator of fact, of the doctrine of the appearance, or even the doctrine of improper solidarity based on the community of interests, which would be available to third parties harmed by one of the group’s companies. However, the degree of involvement of the parent in the management of the subsidiary that could cement the identification of the former as a de facto administrator remains an open question. A reasonable position would be to consider that as long as the parent’s influence on the subsidiary is limited to designing the strategic coordination of the company with the rest of the group, without carrying out day-to-day management actions specific to its management body, there would be no basis to designate to the matrix as a de facto administrator.

Regarding internal risk, this naturally arises from the possible breach of fiduciary duties owed to the minority shareholders of any of the companies that make up the group, which have a dual aspect (a) the fiduciary duties of the parent company in the adoption of board agreements (article 204.1 LSC), and (b) the fiduciary duties of the administrators of the subsidiaries (article 227 LSC). The former will prevent the matrix from adopting decisions – even within the framework of strategic and organizational coordination – that are abusive because they clearly prejudice the interests of the members of a group company, who as third parties possessing legitimate interest will be entitled to to challenge the resolutions of the parent company that adversely affect their interests. The latter will prevent the administrators of the dominated society from breaking their obligation of loyalty and their duties of independence and acting in the best interest of society against the partners (our order, unlike the German, does not know any exception to this duty fundamental), so they can not execute orders imposed by the majority partner – the dominant company – that has appointed them to the position, if they contravene in the social interest; the partners were entitled to exercise the social actions of responsibility against the administrators that proceeded (articles 238 and 239 LSC).

In light of the above, and in the absence of substantive precepts that discipline intergroup relations between the dominant society and the dominated societies, it is questionable whether it will be possible in law to implement even a strategic and organizational coordination common to the group, established by its matrix, that responds to its legitimate economic interests and that inevitably produces a negative externality to one or more of the dominated companies; and that, at the same time, is opposable to a possible legal action of the injured partners.

The jurisprudence has addressed this question in the Supreme Court Judgment of December 11, 2015, noting that a balance could be found between the damage caused to the dominated company and the logical power of its parent company to establish guidelines for organizational coordination, through the receipt by the injured company of the so-called “compensatory advantages” that can be materialized in the aliquot part of the overall benefit received by the group of companies – the result of the action that in the first place has harmed the dominated society – or in another type of advantages and benefits that would not occur if the damaged company does not belong to the group of companies (ubi commoda ibi incommoda) so that such benefit compensates, at least, the damages derived from the decisions of the parent regarding the organization and objectives of the group of companies.

By reproducing the most significant expressions of the aforementioned Judgment, suffice it to say that although his text begins by severely recalling that

The right administrator of the subsidiary has its own area of ​​autonomy of decision that can not be affected by a kind of “due obedience” to the instructions of the group administrator that unreasonably harms the interests of the society it administers, for which has to watch.

it then goes on to recognize a possible “justification” for the damage suffered by the dominated company, which would happen because the damage did not jeopardize the existence or viability of the dominated company, and that it would receive

(…) compensatory advantages that justify that some action, considered in isolation, could be a detriment to society (…)

The aim is to make a balance of the advantages provided or the benefits made in both directions (from the company to the group and from the group to the company) and to conclude whether or not there is a negative result for the subsidiary. (….)

In any case, they must have an economic value, and be proportionate to the damage suffered by the subsidiary in the action for which liability is required (…)

As a conclusion of these very brief lines on this complex and unknown subject for our positive law, it can be affirmed that (i) the content of the concept of “control” used by article 42 CCo is none other than the “management unit” understood as strategic and organizational coordination imposed by the parent company on the group’s subsidiaries, “management unit” that could be implemented by any means, even though the most common – by far – the majority shareholding, and that (ii) although the interest social prevails over the interest of the group, jurisprudence does not seem to sanction the damage suffered by a subsidiary if it receives an objective “compensatory advantage” and derived exclusively from the affiliation of the subsidiary company to the group.

From the time being, the Buyer should pay the Stamp Duty of the Mortgage

The Judgment of February 28, 2018 of the Supreme Court (TS) resolves the discussion on the taxpayer of the Tax on Documented Legal Acts (Stamp Duty) on the mortgage in the sense that he is the buyer, and not the bank in favor of whom the mortgage is constituted.

The note published on the website of CGPJ states that:

In the specific cases subject to prosecution, the Supreme Court was already discussing only what was related to the payment of property transfer tax and documented legal acts. The court has estimated in part the appeals filed by the affected consumers and has established that on this tax several situations must be distinguished:

a) For the constitution of the loan, the payment is the responsibility of the borrower. In this regard, it refers to the constant jurisprudence of the Third Chamber, the Contentious-Administrative, of the Supreme Court, which has established that the taxpayer is the borrower.

b) By the stamp of the notarial documents, the corresponding tax to the matrix will be paid in equal parts between the lender and the borrower, and the corresponding one to the copies, by the one who requests them “.

For this reason, it must be inferred that the notarial expenses corresponding to the public deed of mortgage and the registration of the same in the Property Registry, as well as those for processing by administration of this registration, if any, correspond to the bank.

Anyway, this ruling is appealable to the CJEU, among other reasons for not respecting the principle of normative hierarchy in the conflict between the regulatory standard (Article 68 RITPAJD) and the legal standard (29 TRITPAJD).

The Registration of the Reservation of Title over Inmovable Goods

The Directorate (CD) has resolved on November 28, 2017 (BOE 14.12.2017) an appeal lodged by the notary granting a deed of sale of property with deferred price, against the calification note issued by the Registrar of the Property for which he suspended his registration, because the guarantee for the price that was postponed had been configured between the parties by means of a pact of reservation of title over the property.

The Directorate profusely deals with the nature of the domain reservation agreement, and rejects the four arguments of the Registrar that substantiated its calification note:

1 The Registrar argued that, since there would not have been a transfer of title, there is no modification of any real right to register in the Registry, in accordance with the provisions of Article 2.1 of the Mortgage Law (LH); also adds that the material result of the pact would be equivalent to the pacto comisiorio, forbidden in Spanish law, since, in case of non-payment of the deferred amount, the seller would recover full ownership of the property without liquidation and without public procedure for setting the price .

The CD inadmits this line of argument referring to the jurisprudential recognition of the pact of reservation of title (STS 12.03.1993) and the possibility also admitted jurisprudentially that the autonomy of the will modulate the purchasing regime of property (Article 609 CC), provided that said will does not imply a contravention of the law, morality or public order (STS 20.06.2000); and although it is true that in the presence of the pact of reservation of title there is no transfer of title, it is also true that such pact generates quasi-real effects (ius ad rem) that must be reflected in the registry, such as the prohibition of disposal of the owner and the best right that assists the buyer before a seizure of the property by the seller’s debts (STS 16.03.2007).

With reference to the identification of the pact of reservation of title with the pacto comisiorio, would be valid also the argument of the CD, because although this is prohibited in defense of the debtor, the pact of reservation of title is admissible, admissibility fruit of the different nature legal status of one institution and another. In addition, the pacto comisorio assumes the direct appropriation by the creditor of the property offered as collateral by the creditor, prohibited by the order for the quantitative difference that may exist between the debt and the value of the collateral, and by the absence of auction mechanism that objectivize such value, being able to produce unjust enrichment for the creditor. However, (i) the title reservation agreement does not imply the appropriation of the guarantor, since it never left the creditor’s estate; and (ii) the valuation of said good is the equivalent of the purchase price freely agreed between the parties, a price that has been postponed and unpaid; and if it were the case that the buyer had delivered some amount to the seller, the reimbursement of said amount must be accredited as a condition for the registration of the ownership of the buyer, in accordance with art. 175.6º of the Reglamento Hipotecario (RH).

2º The second objection raised by the Registrar is that, at its discretion, compliance with the payment obligation cannot condition the transfer of ownership, since the payment is an essential element of the contract of sale and is not reducible to the category of suspensive condition (distinction between conditio factii and conditio iuris), for which reason we would not be faced with a condition on which the consummation of the business depends, but rather with an “agreed modalization of the effects of the business”. However, this reasoning is rejected by the CD in voluntarist terms of jurisprudential origin of protection to the creditor (STS 12.03.1993), and in the very assumption that the fullness of the transmissive effect may be subject to full payment of the price (STS 24.07.2012).

3º The third argument put forward by the registrar refers to the availability of means expressly provided for and regulated in the legal system (Article 11 LH) that produce the same effect, such as the resolutory condition established in Article 1.504 CC. At this point, the CD refers to its resolution DRGN of 12.05.2010 and collects an illustrative doctrine about the character of numerus apertus of real rights, which we transcribe in its entirety:

 “(…) As this Directorate has repeatedly pointed out, it is undoubted in our Order that the owner can dispose of his assets, and, therefore, constitute liens on them, without further limitations than those established in the laws (article 348 of the Civil Code). Not only is it possible to establish new real property rights not specifically provided for by the legislator, including any act or contract of an unnamed nature of real significance that modifies any of the powers of ownership over immovable property or inherent rights (see articles 2.2. º of the Mortgage Law and 7º of the Reglamento Hipotecario), but also the alteration of the typical content of the real rights legally foreseen and, in particular (articles 647 of the Civil Code and 11, 23 and 37 of the Mortgage Law) subject them to condition, term or mode. But it is also true that this freedom has to conform to certain limits and respect the structural norms (imperative norms) of the legal status of property, given its economic-political significance and the “erga omnes” transcendence of real rights, so that the autonomy of the will must be tempered to the satisfaction of certain demands, such as the existence of a sufficient justifying reason, the precise determination of the contours of the real right, the inviolability of the principle of freedom of traffic, etc. (Resolutions of June 5, October 23 and 26, 1987 and March 4, 1993, among others).

Indeed, although the condition of termination and the covenant of reservation of title have the same protective purpose of the creditor in case of non-payment of the deferred price, the legal effects pending from one and the other differ essentially, since while in the first case the transfer of title has been full, and therefore the property can be transmitted and seized by the buyer’s debts, in the second case neither the buyer nor the seller can transmit the property, and the action of the creditors of each of them is limited to their own rights. Therefore, the legal regulation of the business must be left to the autonomy of the will while the condition is pending compliance – whether it be suspensive or resolutory – and the deadline for compliance has not elapsed.

4º Finally, the CD also does not accept the rejection of the registration to the registration based on the specialty principle of the property registers, because of the indeterminacy over the domain that the reservation pact originates while the condition is pending compliance . However, for the CD, there is no problem of any ownership indeterminacy since during the pendente conditio period there coexist two opposing but complementary rights, which exhaust the full ownership of the property: the first is current and the second expectant or latent (ius ad rem), and after said period the consolidation of the full domain will take place in favor of the party that duly certifies that the result of the condition was produced in his favor (RDGRN 12.05.2010).

To conclude this brief note, we must point out in practical terms the equivalence of the pact of reservation of title and of the resolutory condition in the registration and insolvency fields, and its substantial difference in the tax sphere:

(A) Regarding the registry regime, it is important to point out the equivalent treatment of the resolutory condition and the domain reservation pact imposed by article 175.6º RH, when, as a result of each one of them, the full domain is reassigned to the seller. In such cases, the registration will be conditioned to the reimbursement to the buyer of the amounts paid.

The quoted registry provision is projected in the private obligational scope by preventing compensation between the necessary reimbursement to the buyer and the possible penalty clause that could have been agreed between buyer and seller in the event that the former did not pay the deferred payment. In this case, the seller is not exempt from making the refund to the buyer of the amounts that could have been paid under the justification that they would have been automatically compensated with the amount of the penalty; but it will undoubtedly have to reimburse them to the buyer so that the registration of their right takes place; This is without prejudice to the fact that – subsequently – the seller may claim the penalty from the buyer through a declaratory procedure, fully subject to the rules on the matter, including the power of judicial moderation of the penalty.

(B) With regard to the bankruptcy sphere, it is only necessary to point out that both the resolutory condition expresses and the pact of reservation of title produce the qualification of the secured credit as specially privileged (Article 90.1.4 LC), with all the consequences legally planned.

(C) Finally, within the tax sphere, two important issues should be noted. (i) although the consolidation of the right of full ownership occurs at different times, the ITP derived from the transfer of ownership will be accrued, both in cases of express condition and as a result of the reservation of title, at the time of the transmission of the good. (Article 2.3 RH, concordant with article 75 of the Law 37/1992 of the VAT); and (ii) although the registration of the resolutory condition is subject to taxation of ITP (Article 7.3 ITPAJD Law) or AJD (Article 73 RITPAJD), it is much more doubtful that the constitution of a domain reservation agreement is subject to to said tax. (Article 7 ITPAJD Law and Article 31 of the RITPAJD).

Older Posts