The indirect transfer of shares subject to accessory services.

La transmisión indirecta de participaciones sujetas a prestaciones accesorias.

The voluntary transfer by inter vivos acts of shares with ancillary services will require, in accordance with art. 88.1 LSC, the prior authorisation of the company, a requirement that is justified by the company’s interest in the correct fulfilment of these ancillary services, given their inherent link to the development of the company’s corporate purpose.

Bearing this limitation in mind, judgement no. 477/2023, dated 2 November 2023, of the Barcelona Provincial Court (15th section) analyses what happens when a parent company, whose subsidiary in turn holds shares in a company that entails ancillary services, transfers the shares of said subsidiary to another of the shareholders.

Ruling No. 477/2023 of the Barcelona Provincial Court (15th Section)

In this judgement, the Court considers that the transfer by the parent company of the shares of the subsidiary does not affect the shares with ancillary services of the company. Although the latter had established in its articles of association, as a requirement for the transfer of its shares, the prior authorisation of the company, this limitation does not extend to the transfer of the shares of a partner company, especially taking into account that the articles of association had not established any control over indirect transfers to safeguard the shareholder composition.

Fraud and indirect transfer

On the other hand, and contrary to the appellant’s allegations, the Court of Appeal does not consider that the indirect transfer of shareholdings constitutes per se a fraud of law, but rather that the violation of the ethical content of the legal precept that is alleged to have been violated must be proven by means of arguments and facts. The Court does not deny that in these cases there cannot be fraud by law, as in the factual case of Judgement 950/2018 of 28 December of the Provincial Court of Vizcaya, mentioned by the appellant, in which the parent company creates a subsidiary company for the mere purpose of circumventing the limitation on the transferability of shares between partners; but rather that such fraud cannot be inferred from the facts of the case.

Legal implications of the indirect transfer of company shares

The Court concluded that, in the case analysed, the transfer by the parent company of the subsidiary’s shares to another shareholder does not affect the subsidiary’s shares with ancillary services, since the company had not shown any concern and had not established any limitation on the indirect transfer of shares; nor can fraud be assumed in these cases, since, in addition to the fact that the company had not established any limit in these cases, fraudulent conduct had not been proven by the facts of the case.

Guidelines for the effective management of ancillary benefits

In short, in order to avoid changes in the shareholder composition that could affect the correct fulfilment of the ancillary benefits established in the articles of association, it is advisable to properly establish the limits to the transferability of shares and, above all, in which cases they operate.

The PDF with the resolution is attached below:

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