In Limited Companies, sometimes due to the distrust of the partners themselves, or with the intention of establishing a “control system” to the management body, the partners usually implement a joint administration system in the person of 2 or more administrators, that must act jointly in the representation and management of the company.
Despite the intended advantages, this administration system can present as many practical inconveniences. When addressing your problem, both the forecasts of the Capital Companies Act (LSC) as the resolutions of the General Directorate of Registries and Notaries (DGRN), are based on the differentiation of two areas of action: that of "representation" or action against third parties, and that of "management" or performance in the internal scope of society.
In the field of “representation” of the limited company, Article 233 of the LSC states that “if there are more than two Joint Administrators, the power of representation shall be exercised jointly by at least two of them in the manner determined in the Statutes”, Being often expressly established. In this way, 2 out of 3 or more joint administrators, for example, can represent the SL in the operation with third parties. The statutes usually reproduce the literal tenor of the norm, without further qualification; that is, without adding any mention to management.
Traditionally the resolutions of the DGRN (by all, that of July 27, 2015) they maintain the criterion that the call of the General Meeting must be made by the administrators in accordance with the form of administration adopted; that is, in the case of joint administrators (two or more), they must all be jointly or jointly who convene the General Meeting to be considered duly convened.
In practice, this means that if any of them individually refused to call, they could block the call and, with it, the operation of the company, giving themselves a kind of "veto right".
The resolution of May 4, 2016 of the DGRN it came to clarify the traditional position, admitting that, even in the case of joint administration, and also in the field of internal management of the company, the General Meeting could be convened by 2 of the 3 joint administrators provided that it has been provided in social statutes, in analogous terms in which it is recognized for the power of representation.
That is, an express statutory provision would be necessary in the sense that, likewise, the powers of management can be exercised by at least 2 joint administrators.
Unfortunately, these nuances are not common in the almost institutionalized custom of using standardized statute models.
The rigorous interpretation of the DGRN (except when there has been adequate forecast at the time of the adoption of this administration system), has been widely criticized as it implies the impossibility of convening the Board in case of lack of agreement of the joint administrators and therefore, ultimately, the corporate blockade.
Another thing is that, if two joint administrators summon the Board "omitting" to the one that, required for it, had refused, if the contested by default agreements in the call occurred, could easily be interpreted by the Judge of the Mercantile as an obvious abusive and contrary to good action was required of the partner, with the consequent dismissal of the challenge and confirmation of the agreements adopted.
In conclusion, if you want to avoid the necessary intervention of more than two joint administrators in the exercise of management powers, such as the convening of the Board, it will be necessary to introduce the appropriate statutory provision, for the exercise of the powers by two of the joint administrators, not only with respect to representation, but also with management or, at least, expressly with respect to the Board Meeting.
GEMMA PEREZ / JULIO RIBELLES
