By decision of April 4, 2022, the General Directorate of Legal Affairs (DGSJyFP) ruled on the point of knowing whether the numbering of the shares registered as repurchased in the capital reduction deed should coincide with the numbering of the shares registered in the the commercial register. .
This case arose from an appeal lodged by a notary against the refusal of the Registrar of the Commercial Registry II of Biscay to register a reduction in the capital of a public limited company due to the numbering of the shares (represented in the form of certificates of shares) in the articles of association filed with the commercial register and those being redeemed in accordance with the deed did not correspond.
The notary argued that the correlation of the numbering of the shares refers only to the moment of the issuance of the shares within the framework of the incorporation of the company or in the event of a capital increase. He further argued that Article 116 of the Spanish Companies Law states that the register of shareholders is responsible for:
- provide proof of ownership;
- following any transfer of shares; and
- indicating any charges granted in relation to the shares.
Therefore, any change in circumstances that may affect the shares of any public company is independent of the commercial register.
On the other hand, he argued that:
throughout the life of the company, there are instances where certain shares may be canceled or redeemed, leaving a gap in the correlative numbering, without necessarily having to renumber all outstanding shares again.
This is what happened in this case since the capital of the company was registered in the Trade Register with the shares numbered consecutively with a gap in this numbering (according to the Trade Register, the share capital was divided into 43 995 actions numbered from one to 300 and 11,475 to 55,169).
In short, according to the appellant, in the deed in question there was a correlation and a complete line between the figure of the share capital, the number of shares and their nominal value, where all these values coincide with the information of the commercial register, so that the different numbering of the existing shares in the commercial register and in the register of shareholders does not prevent the registration of the capital reduction. According to them, the data relating to the precise numbering of the shares issued, rather than those redeemed, concerned only the shareholders and, therefore, were not relevant for third parties.
In order to resolve the appeal, the DGSJyFP argued that where shares are represented by certificates, Spanish law on social enterprises considers them non-fungible assets – that is, the required numbering n is not only intended to represent their value in share capital, but the numbering qualitatively identifies the shareholder’s position.
This can be inferred from the various articles of Spanish Business Law and Commercial Registry Regulations which refer to:
- the numbering of shares;
- actions related to the act of incorporation;
- shares allocated in exchange for contributions made during incorporation;
- awards made in exchange for non-monetary contributions;
- capital increase deeds;
- the certification of the result that derives from the sequential training companies;
- the appointment of directors by cooptation;
- the necessary requirements of the represented credit instrument regarding their number and series.
Once again, the DGSJyFP underlined the importance of publishing the specific numbering of the shares issued (and not redeemed) in the commercial register in order to consider them as a negotiable security and not because there is a need for correlative renumbering shares remaining after the capital reduction, which are not required by any regulations.
One of the characteristics of the share as a negotiable instrument is its causal link, ie the issue of the security does not confer the quality of shareholder but documents it. Moreover, the share certificate is to a certain extent “incomplete” because the rights and obligations attached to the shares are defined in the articles of association, the content of which may change over time. Consequently, the registration of the articles of association is considered as a complement to the share certificate which describes the situation of the shareholder and provides information on his durability as a shareholder.
For more information on this subject, please contact Alexa Flórez at CMS Albiñana & Suarez de Lezo by phone (+34 91 451 9300) or email ([email protected]). The CMS Albiñana & Suarez de Lezo website can be accessed at www.cms.law.