The Official State Gazette Publishes the Resolution of the General Directorate for Legal Security and Public Faith (DGSJFP) of 29 November 2024
This resolution analyses whether the obligations arising from a family protocol can be classified as ancillary obligations within a company’s articles of association.
Legal Framework for Ancillary Obligations in Companies
Article 86 of the Companies Act (LSC) allows the inclusion of ancillary obligations in the articles of association, provided that their content is specific and well-defined.
In this context, New Okapi, S.L. agreed to amend its articles of association to include compliance with the family protocol as an ancillary obligation, referencing the details of the public deed in which the protocol was formalised.
Reasons for Rejection by the Commercial Registry
The Commercial Registry rejected the registration of this amendment, arguing that:
- The specific and well-defined content of the ancillary obligation was not included in the statutory provision itself but was instead referred to in a family protocol formalised in a notarial deed.
- Although the deed was identified, it had not been registered or deposited with the Commercial Registry.
- The current system of registry publicity does not allow a future purchaser of shares to access the contents of the family protocol, as notarial deeds are protected by notarial secrecy.
To better understand the relationship between share transfers and ancillary obligations, you can read our analysis on indirect share transfers and ancillary obligations.
Resolution of the DGSJFP and Its Legal Impact
Following an appeal, the DGSJFP ruled in favour of the registration, stating that:
- The amendment to the articles of association complies with current regulations and the DGSJFP’s own doctrine.
- The ancillary obligation is properly identified through its formalisation in a public deed.
- The lack of deposit of the family protocol in the Commercial Registry does not violate the doctrine, as these documents are confidential rather than public.
Regarding third parties’ lack of knowledge about the obligations contained in the family protocol, the DGSJFP considered that:
- A third party with a legitimate interest could request access to the family protocol from the Notary, provided they submit supporting documentation.
- The Company itself or the selling shareholder could provide the family protocol during pre-acquisition negotiations.
A Step Forward in the Doctrine on Family Protocols
With this resolution, the DGSJFP reinforces the possibility of including compliance with the family protocol as an ancillary obligation in the articles of association, consolidating a doctrine that enhances flexibility in corporate governance.
Need Advice on Corporate Amendments or Family Protocols?
At Ayuela Jiménez, we help you structure and optimise corporate agreements with a legal and strategic approach. Get in touch with us!
