Temporary suppression of the right of separation of the partner
The legislation enacted during the state of alarm has substantially affected the right of separation provided for in ARTº 348 BIS LSC.
First was RDL 8/2020:
Artº 40.8. Even if there is a legal or statutory cause, in capital companies the partners will not be able to exercise the right of separation until the end of the state of alarm and the extensions of the same that, where appropriate, are agreed.
It was understood without difficulty that the RDL 8/2020, in force since March 17, 2020, delayed the exercise of the right of separation in all cases until the end of the state of alarm and its extensions -June 21-. Therefore, it deferred the power to exercise that right but did not exclude it.
The problem arises with the second modification operated by the RDL 25/2020, which entered into force on July 7, 2020, whose fourth final provision, adds a paragraph to article 40.8, with the following wording:
“Notwithstanding, the right of withdrawal provided for in sections 1 and 4 of article 348 bis of the revised text of the Capital Companies Act, approved by Royal Legislative Decree 1/ 2010, of July 2, is suspended until December 31, 2020.”
The expression “the right of separation… is suspended until December 31, 2020.” nIt has not been successful with what the legislator wanted, taking into account the explanatory statement of the aforementioned RDL 25/2020, which in relation to that addition says:
“In view of the economic impact derived from the COVID-19 health crisis, it is appropriate to extend the period of suspension of the right of separation of partners, only in the event of separation due to lack of dividends, such and as established in article 348 bis.1 and 4 of the consolidated text of the Capital Companies Law, approved by Royal Legislative Decree 1/2010, of July 2. In this way, the withholding of the dividend will be allowed for that companies can face the economic recovery with a reinforced solvency. The suspension of the separation right is extended only as long as necessary to achieve the described objective, that is, until December 31, 2020″.
It seems evident that it is not a question of suspension, but of the suppression of the right of separation based on 348 bis 1 and 4 LSC until the 31st of December 2020.
That is, if the separation right is based on sections 1 and 4 of article 348 bis of the LSC, it is suppressed with respect to those cases in which it is based on agreements of the general meeting adopted during the so-called period of suspension. And, you will not be able to exercise it with respect to them neither before nor after December 31, 2020.
It may interest you: “LEGAL ADVICE FRONT TO COVID-19”
Javier Calderón
Departamento de Derecho Mercantil
17/05/2021
