A person who invests money in a company does with the hope that such investment, in the future, reverse it an economic benefit. In this sense, the law recognizes the partner of a company the right to participate in the distribution of the proceeds thereof in certain cases. But the law also attributed to the shareholders' meeting (decision of the partners to adopt agreements on the basis of a majority) the power to decide whether distributed or not, between partners, dividends, which are the profits of the enterprise. This can lead to an abuse of rights of majority shareholders to the detriment of the rights of minority shareholders. In practice, there are many cases in which most denied, again and again, the dividend when they could be distributed, ie, although there are benefits and there are no economic reasons for not distribute. Usually because these majority shareholders control the board of directors and already charge otherwise, for example via remuneration administrator or as an employee or service provider, etc. In this case the minority partner sees one of its main violated rights, such as the distribution of economic benefit derived from your membership.

To avoid this potential abuse of the majority it was introduced in the Capital Companies Act, Article 348 bis, which it entered into force on 2 2011 October and for the first time regulates the right of separation of a partner or shareholder of a corporation for lack of dividend.

With this article entitled to a minimum dividend is incorporated, its refusal can lead to a separation right partner under the following circumstances:

  • The company should take 5 years registered in the Commercial Register.
  • That at the General Meeting of Members, the member has voted for dividend distribution (agreement that usually comes framed within the agreement for approval of the profit).
  • The General Shareholders' Meeting do not resolve the dividend of at least one third of the profits from the exploitation of the social object acquired in the previous year.
  • The benefits are legally distributable (for example, that he had not approved the dividend because it would have to offset losses or provide legal or statutory reserves).

But in a crisis situation as it existed at the time the referred article 348 bis came into force, it was criticized because, among other reasons, it was understood that it was contrary to the freedom of the company and because in a crisis context the companies had difficulties to access the credit and if they had to pay dividends to the partners, the situation worsened even more. Or, also, because the credits of third parties were harmed against the outgoing partners to which their shares had to be reimbursed. And, in general, because in a crisis this article could be contrary to pacts such as those of limiting dividends, or refinancing conditioned to the reinvestment of benefits instead of distributing them.

That is why, the aforementioned article 348 bis, nine months after its entry into force, was suspended until the 31 of December of 2014 and extended the suspension of its application until the 31 of December of 2016. Once again, 1's past January 2017 entered into force and, at least, at the time it finishes writing these lines, the legislator will once again suspend, for the third time, the application of this article. The truth is that, today, is again in force. This precept can be considered as a reflection that the right of the partner to the corporate profits, under the conditions that regulate the precept, is a specific right that does not depend on the agreement of the General Shareholders' Meeting and whose breach must be compensated with a right of separation of the partner who sees his interest damaged.

The deadline for exercising the right of withdrawal partner is one month from the date of holding the General Meeting of Members and how to exercise this right, we recommend it, by written communication addressed to the Company, being without doubt and testing purposes, convenient burofax or notarial notice which records both the receipt and content.

On the other hand, stress that the provisions of Article 348 bis in question, and constant reference, shall not apply to listed companies since in these longer a possibility socio output is regulated.

And finally, indicate that, once again, article 348 bis of the Capital Companies Act and since the right partner separation arises at the time the application leftover voting result, this right may be exercised regarding any agreement implementing the results taken from January 1 2017. Provided you do not change the current rules, in which case they would inform through our newsletter.



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Carmen Lopez

DiG Lawyers

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