On the ancillary obligation to comply with the family protocol

An article of the bylaws establishing ancillary obligations whose specific and determined content does not appear in the article itself but by reference to the content of the family protocol contained in a deed duly identified, but neither registered nor deposited, is registrable.

In its resolution of October 11, 2024, the Directorate General for Legal Certainty and Public Faith (DGSJFP), ruled on the possibility of registering an article of the bylaws including a non-remunerated ancillary obligation, consisting of the “compliance and observance of the provisions agreed by the partners in the Family Protocol or Social Pact”. The Registrar decided not to register this clause since, in his opinion, they are ancillary obligations whose content does not appear in the article of the bylaws itself, but by reference to the content of the family protocol which appears in a deed duly identified, but neither registered nor deposited.

In the present case, the DGSJFP revoked the negative qualification note of the Registrar, arguing that the obligation in which the ancillary obligation consists of is perfectly identified by means of its formalization in the described public deed , so that its full content is determined outside of the bylaws in a way that is identifiable not only by the current shareholders who unanimously approved it but also by the future shareholders who, upon acquiring the corporate shares, are bound by the ancillary obligation which content is identifiable by the bylaws.

In the opinion of the DGSJFP, the clause in question is registrable, as it does not exceed the general limits to free will, since it does not oppose the laws or contradict the principles of the company. The fact that the content of the ancillary obligation is not published in the manner provided for in RD 171/2007, of February 9, 2007, which regulates the publication of family protocols, cannot constitute an obstacle to this conclusion.