A director whose term of office has expired may convene a meeting to appoint a new director

A general meeting of shareholders may be convened by a director whose term of office has been expired for more than thirteen years and who has not been re-elected, for the purposes of appointing directors and consequently approving outstanding annual accounts and thus causing the re-opening of the company’s register sheet.

In a Resolution dated 31 October 2023, the Directorate General for Legal Security and Public Faith (DGSJFP) considers that the director is functioning de facto, with his powers to call the meeting in force for the sole purpose of appointing the new directors, based on article 171 of the Capital Companies Act, and therefore there is no time limit for the director with an expired position to call the meeting.

The DGSJFP bases the possibility of calling a meeting mainly on ruling number 37/2012, dated 23 February, of the Civil Chamber of the Supreme Court, which sets out the main reasons as the preservation of the company, market stability and avoiding the paralysis of the corporate bodies and, in the same sense, the ground for dissolution in the event of a functional vacancy of the administrative body.

Regarding the effect of the impossibility of registering company documents due to the failure to deposit the approved annual accounts, the Resolution also states that, as a consequence of the appointment of the new director, the annual accounts may be submitted for deposit simultaneously, which allows the registry closure to be solved together with the registration of the position of director, of the person who certifies their approval.

See Resolución de fecha 31 de octubre de 2023 DGSJFP.