Interpretation of the DGSJFP on the capacity of the director to change of registered office of a SL

Although the articles of association allowed the change of registered office within the same municipal area, the DGSJFP interpreted this provision as an explicit limitation on the competence of the administrative body to transfer the registered office outside the municipal area.

Royal Decree-Law 15/2017, of 6 October, on urgent measures regarding the mobility of economic operators within the national territory modified the capacity of the management body of limited companies, extending the possibility for them to transfer the registered office without the need for a resolution of the shareholders’ meeting within the entire national territory and not only within the municipality, as had been the case until then. Since this legislative amendment, it has been interpreted that the management bodies had this capacity even when the bylaws maintained the wording in line with the previous restrictive regulation.

However, on 8 July 2024, the Directorate General for Legal Security and Public Faith (DGSJFP) issued a new decision in response to a challenge to the registration of a transfer of the registered office of a Limited Liability Company (S.L.), which arose when its sole director decided to transfer the registered office from Madrid to Getafe.

The Registrar, rejected the registration of the transfer on the grounds that, according to article 3 of the company’s bylaws, the management body was not empowered to change the registered office outside the municipality.

The DGSJFP pointed out that, when interpreting the articles of incorporation, it is crucial to consider the context in which they were drafted, i.e. after the entry into force of Royal Decree-law 15/2017.

Pursuant to the new wording given by such  Royal Decree-law to Article 285.2 of the LSC, the power to transfer the registered office within the same municipality is presumed to be implicit in the broader power to transfer it to any place in the national territory.

However, the DGSJFP considered that a logical interpretation in accordance with the social reality at the time of incorporation of the company implies that the provision of the articles of incorporation expressly limits the competence of the administrative body to the same municipal district. Therefore, even if there is no provision that explicitly denies the broader competence, the current wording of the articles of association implies such a limitation, and the contested classification of the registrar was therefore confirmed.