In the regime of prescription of actions, the determination of the “dies a quo” is as crucial as the prescription period itself, as this factor underpins the accurate calculation of the prescriptive term – the period after which a particular unlawful situation becomes consolidated due to the passage of time, precisely for the sake of legal certainty.
Following a recent reading of Pedro del Olmo García’s entry in Almacén de Derecho, discussing the criteria for determining the “dies a quo” in connection with the restitutive action (prescriptible), which complements the nullity action (imprescriptible) available against abusive clauses, and a new entry in the same repository by Manuel García-Villarrubia on the prescription of the action for unjust enrichment of directors (Article 227.2 LSC), which in turn refers to the jurisprudential shift on the prescriptive term of actions based on Article 367 LSC (a matter recently touched upon in this modest journal), the issue arises regarding the criteria for determining the “dies a quo” within the framework of actions based on articles 241 bis LSC (actions of responsibility against the administrator) and 1964.2 CC (generic prescriptive term).
The prescription regime seems to distinguish between two criteria for setting the “dies a quo”: (1) the objective, determined by the production of an external event, alien to the internal sphere of the actively legitimized party, and (2) the subjective, determined by the moment the external event that grounds the action reaches the internal sphere (knowledge) of the actively legitimized party.
Subjective Criterion
It seems that the prescription of the Aquilian action (Article 1902 CC) is governed by the subjective criterion, as proclaimed by Article 1968 CC, which prescribes the lapse of one year for “The action to demand civil responsibility for insult or slander, and for obligations derived from the fault or negligence discussed in Article 1902, from the moment the aggrieved party became aware.” Given that the precise moment when a particular fact reaches the cognitive sphere of a person is objectively indeterminable, when assessing prescription at the request of a party, the court must consider a multitude of aspects, among others, the position (qualification, availability of means…) of the legitimized party, the full or limited publicity of the produced fact, good faith, and the absence of “will to ignore” of the active legitimized party.
This criterion is not exhausted by the mere production of knowledge of the damage, but for the prescription period to commence its calculation, it is required that the legitimized party precisely knows the scope and amount of the damage, as well as the cause or the passively legitimized party; as stated among many others by the Supreme Court Judgment 350/2020 of June 24, which is summarized as follows:
Both the first instance and the appeal judgments set the “dies a quo” for the exercise of the action from the date the injured party became aware of the extent of the personal and material damage suffered, disregarding the knowledge by said injured party of the identity of the responsible party. However, the wording of Article 1969 of the Civil Code leaves no doubt that the time for the prescription of actions “shall be counted from the day on which they could have been exercised,” and logically, the action cannot be exercised when the identity of the one or those against whom it must be directed is not known, regardless of whether the injured party had previously had objective data regarding the amount of the damage or harm caused.
As established by this chamber in the judgments cited by the appellant, No. 25/2015 of February 2, and 725/2014 of December 18, and in a more recent date, No. 94/2019 of February 14, dealing with a case similar to the one now presented.
As can be seen, the reasoning of the High Court links with Article 1969 CC, which proclaims that, unless the law determines otherwise, the calculation of the prescriptive term of the action will begin from the day on which it could have been exercised; leading to the conclusion that an action cannot be exercised without knowledge of the basic elements to initiate it.
Objective Criterion
On the other hand, the general prescriptive regime (Article 1964 CC) and the special prescriptive regime of the actions of responsibility against administrators of capital companies (Article 241 bis LSC) seem to enshrine the objective criterion, as the first indicates that the term begins “from the moment the fulfillment of the obligation can be demanded,” and the second indicates that said term begins to be counted from when the action “could have been exercised,” conceiving this possibility objectively as the occurrence in material reality of the factual elements that found it, whether the actively legitimized party knows them or not.
Especially in the corporate sphere, until Article 241 bis LSC was introduced by the reform of 2014, jurisprudence admitted that the prescriptive term of the actions of responsibility against administrators is the one indicated by Article 949 CCO, which, as is known, sets the “dies a quo” for the start of the term calculation on the day the administrator’s cessation occurs. Note that the cessation of the administrator is a fact of external reality, and therefore the prescription period should run from the time the cessation occurs. However, when the actively legitimized party is a third party in good faith, the term will not begin to run until the cessation has been duly registered in the Commercial Registry (Article 21 CCO), reasoning that also supports the favorable position to the assessment of the internal sphere (knowledge) even in the commercial field.
The Judgment 1/2019 of January 8 of the AP of Madrid refers to this issue by establishing that:
Article 949 of the Commercial Code entails a specialty concerning the “dies a quo” of the computation of the referred four-year term, which is set at the moment of cessation in the administration exercise for any valid reason to produce it, although the determination of the “dies a quo” is delayed to the constancy of the cessation in the Commercial Registry when it concerns third parties in good faith (Articles 21.1 and 22 of the Commercial Code and 9 of the Commercial Registry Regulation), based on the fact that only from the registry inscription can the fact of cessation be opposed to the third party in good faith since the party entitled to exercise the action cannot deny their ignorance from that moment on.
On the same issue, the Judgment 1154/2020 of June 10 of the AP of Barcelona indicates that:
At this point, and although the parties do not do so in their respective writings, we must refer to this factual aspect without departing at all from the debate raised in this instance to this question, for the moment ignored by the parties, of the registration of the cessation of the administrators in the Commercial Registry. It is an undisputed fact that it did not access this public registry, so that said cessation, although validly decreed by the judge who decreed the dissolution of the debtor company, cannot be opposed to third parties in good faith.
We believe that the jurisprudential interpretation of Article 949 CCO produces a mutation from the literally objective character of the prescriptive regime to one of a subjective nature. We agree with this line of jurisprudence for favoring the principle of “pro actione” and for relieving the actively legitimized party from the onerous burden of checking whether an administrator’s cessation that has not been properly registered has occurred.
Going even further – and although since the aforementioned reform of the TRLSC of 2014, it seems that in the corporate sphere, the determination of the “dies a quo” should be governed by the objective principle (possibility and not knowledge), the Judgment 1443/2021 of December 14 of the Provincial Court of Valencia holds that the interpretation of Article 241 bis LSC, despite its literal wording (power), must be guided by the subjective criterion (know).
- if the acts or omissions imputed to the sued administrator were committed when the Law 31/2014 was already in force, that is, for the actions that are born already effective the precept examined, there is no doubt about the application of Article 241 bis of the Consolidated Text of the Corporate Enterprises Law and the “dies a quo” must be fixed when the aggrieved party (social creditor and plaintiff) knew or became aware of that damage, adding that it must be a real or potential knowledge, that is, the owner must have or should have had knowledge of the injury to their right by exercising basic diligence.
Therefore, and to conclude, let these modest lines underscore that, although Article 241 bis LSC and even Article 1964 CC establish the principle of actio nata in an objective sense, the jurisprudential criterion seems to be that an action cannot be exercised if the objective and subjective components of the corresponding judicial claim are not sufficiently known beforehand.