Article 241 bis of the Spanish Companies Law (Ley de Sociedades de Capital ) states that the action of liability against directos and or administrators, social or individual action, expires in four years from the day that would have been able to be exercised.
Such action, when a damage caused by acts or omissions contrary to the Spanish Law or to the By-Laws of the Company, or for breach of duties inherent to the position of Director, will be started by the Company, once adopted in a General Meeting, and at the request of any shareholder of the company in Spain.
Likewise, the General Meeting may waive the exercise of such action, provided that there is no opposition from the shareholders representing 5% of the share capital.
The exercise of the action or renounce to the same, shall entail the removal of the affected directors.
The approval of the annual accounts in Spain will not prevent the exercise of the action of responsibility nor will mean the renounce to an adopted or exercised action.
The shareholder who has, individually or jointly, a share that allows him to request the convocation of a General Meeting, i.e., representing, at least, 5% of the share capital, may directly exercise the liability action, when it is based on the breach of the duty of loyalty, without having to submit the decision to the general meeting.
The creditors of the company may exercise the company a Spanish court case against directors, when it has not been exercised by Company or its shareholders, provided that the company’s assets are not enough for the satisfaction of their claims.
In any case, there will never be an exoneration of liability, when the injurious agreement has been adopted, authorized or ratified by the General Meeting.The liability of the directors is equally extended to those “de facto” directors. If you wish to obtain further information concerning directors of company in Spain, please do not hesitate to contact with us. Contact our law firm in Marbella, Arcos & Lamers Asociados, now for any Spanish legal, tax and accountancy matter. María Teresa Arcos, Lawyer in Spain Wim Lamers Accountant (economist) in Spain
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