The “Dirección General de Seguridad Jurídica y Fe Pública” has repeatedly stated the requirements that must be met in order to rectify a capital increase that has already been registered in the Commercial Register.
This situation occurs when a company, by mistake, includes in the corresponding certificate of capital increase that accompanies the public deed, amounts of nominal value or issue premium that do not correspond to those actually agreed at the General Meeting.
When this situation arises, it is possible to rectify a capital increase already registered in the Commercial Register, although a series of requirements must be met, as stated by the “Dirección General de Seguridad Jurídica y Fe Pública”, one of the most recent resolutions being that of 16 October 2023.
The requirements to be met, in accordance with the above, are as follows:
a) The resolution to reduce capital by restitution of contributions, which entails the rectification sought, must be adopted by the General Meeting of the company (Article 318 of “Ley de Sociedades de Capital” (Commercial Companies Act).
b) In case of resolutions entered in the Commercial Register, the pronouncements made in the Register have full effects, are presumed to be correct and valid and are under the protection of the courts. They produce their full effects until such time as a judicial declaration of their inaccuracy or invalidity is registered, although this declaration may not prejudice the rights of bona fide third parties (Article 20 of Código de Comercio (Commercial Code) and Article 7 of “Reglamento del Registro Mercantil” (Commercial Register Regulations).
c) The resolution to rectify a capital increase results in an effective reduction in the amount of capital previously agreed and published, which may not have access to the registry books unless the guarantees in favor of creditors, as determined by law for cases of reduction in the amount of share capital (Articles 331 et seq. of the Capital Companies Act), have been complied with.
d) Consequently, it must be stated by the administrative body – as a guarantee for creditors and for debts incurred before the reduction was enforceable against third parties – whether the shareholder whose capital increase has been erroneously registered, all the shareholders jointly and severally with each other and with the company (in which case their identity circumstances must be stated) or, otherwise, whether such restitution is guaranteed by the creation of the unavailable reserve provided for in Article 332 of the Capital Companies Act (Articles 201. 3.2.º and 202.3 of the Companies Register Regulations and Resolution of the “Dirección General de Seguridad Jurídica y Fe Pública” of 4 April 2013 and 2 October 2013).
The PDF with the resolution is attached below:
