Nullity of social agreements that do not appear on the agenda
Issues not included in the agenda
We address as an object of study, whether or not an resolution adopted in a general meeting of partners is challengeable or not without having been included in the agenda.< /p>
Art. 174 of the Ley de Sociedades de Capital requires that the announcement of the general shareholders’ meeting of the companies contain the agenda with all the matters to be discussed at the meeting:
“In any case, the call will state the name of the company, the date and time of the meeting, the agenda, which will include the matters to treat, and the position of the person or persons making the call.”
The jurisprudence has manifested itself without any fissures proclaiming the nullity of corporate agreements, both in public limited companies and limited liability companies, that had been adopted without being contained in the agenda of the call.
It is not surprising that this is the case since the formal requirement of the call, imposed in articles 166 et seq. of the Capital Companies Act, is only satisfied with respect to the points contained in the agenda of the call itself, not in terms of the points that do not appear in it.
If the call is the means established by law to ensure that the shareholder knows the issues to be discussed at the general meeting, such a formality would be of no use if the meeting addresses matters that were outside the content of the call.
As an example we cite the following jurisprudential precedents:
- STS of December 19, 1966:
“Social agreements are open to challenge when the points to be discussed are not clearly expressed in the notice of the general meeting”.
- STS of December 22, 1970:
“The call must contain a clear, precise and specific agenda so that the deliberation cannot fall on topics not previously included in the mime”.
The Address General Registries and Notaries has maintained the same criteria regarding the nullity of the agreements adopted regardless of their record in the call of the general meeting. The RDGRN of July 23, 1984 established:
“Since the call and the agenda of the meetings are the guarantee that the associates will be able to make the agreements without their freedom being diminished due to ignorance or imposition , there is no doubt that the non-inclusion of the change of registered office in the agenda implies a violation of art. 53 LSA.”
Our jurisprudential doctrine has insisted on the relevance of calling the general meeting, both in public limited companies and limited liability companies, with the highest formal requirement.
So that the nullity of the call entails the nullity and ineffectiveness of the agreements adopted at the meeting. The STS of March 14, 1985 serves as a reference, citing the judgments of the same Court of November 30, 1963, October 27, 1964, May 31, and July 12, 1983.
The legal mandate is sufficient support to decree the nullity of the agreements. Proving that an agreement not included in the agenda of the general meeting was indeed approved, the declaration of nullity of said agreement may be requested before the courts.
Exception to revoke admin position
By way of exception to this general rule, art. 223 LSC allows the general meeting to adopt the resolution of separation of administrators even if that point is not on the agenda:
“1. The administrators may be separated from their position at any time by the general meeting even when the separation is not included in the agenda.”
It seems that there is no controversy in our Law, regarding the exceptional nature of allowing the general meeting of a company to accept an agreement to terminate the position of administrator at any time.
Therefore, the declaration of nullity of an agreement of these characteristics may not be requested through the courts, even if the dismissal of administrators is not on the agenda.
And the appointment of new administrators?
We have seen that the approval of agreements not foreseen in the agenda is not allowed. Also the exceptionality to agree the termination of administrators at any time. However, would it be possible to appoint new administrators if this agreement was not included in the agenda?
A priori the answer must be negative. The law does not contemplate any exception regarding the appointment of administrators. Therefore, the general rule must prevail, unforeseen agreements are not allowed. In addition, the jurisprudence understands that any exception to the general rule must be interpreted in a restrictive sense. The STS of October 23, 1987 with reference to the Supreme Court rulings of November 30, 1963, June 19, 1968, September 28, 1970, May 31, 1983 and March 14, 1985 said:
“The requirements for calling both ordinary and extraordinary meetings contained in the LSA must always be interpreted strictly”.
In this sense, the STS of October 20, 1998 declared the validity of the dismissal of an administrator of a public limited company who was not included in the agenda of the call, under the legal possibility that the General Shareholders’ Meeting agree to the dismissal of the administrators, but declared the nullity of the appointment agreement at the meeting itself of another administrator who was not listed in the call either.
Now, would an appointment not provided for in the agenda be admissible when the agreement to terminate positions left the company without administrators at the head of the governing body?
The question does not seem simple, and you probably have to look at the specific case to find the right answer. Part of the doctrine seems to have been postulated in favor of making it possible to appoint new administrators to avoid mismanagement in society. We cite as an example two sentences of the supreme court that can be revealing:
- STS of April 30, 1971:
“… as the administrators constitute a necessary body not only for the functioning of the company, but for its existence and subsistence, it is necessary that the General Meeting, ordinary or extraordinary, , that agrees to its separation has the power to constitute the new Board of Directors that replaces the separated one as a necessary body for the life of the company and, therefore, having to do it in the very session in which the separation agreement was reached, not it can be said that it is necessary to include it in the announcement of the meeting call.”
- STS of September 30, 1985:
“… given the valid holding of the meeting, it is seen that, within them and even not appearing on the agenda, the dismissal and substitution of the president of the board of administration and the appointment of another member of said social body, all this could be validly agreed upon.”
José Luis Casajuana Ortiz
Partner at J. L. Casajuana and head of the international area
09/29/2016
