Partial reproduction of legal provisions in the articles of incorporation with omission of certain mandatory paragraphs

The Directorate General for Legal Certainty and Public Faith (DGSJFP) rules that a partial reproduction of a legal rule in the articles of incorporation, which omits mandatory sections, does not imply its exclusion when the omission does not distort the rule or create confusion as to the applicability of the law.

The DGSJFP, in its ruling of 9 July 2024, addresses the possibility of registering bylaw provisions that partially reproduce articles of the Capital Companies Act (LSC), specifically when they omit certain mandatory sections.

In this case, the registration of a clause in the articles of association that reproduces only the second paragraph of article 175 of the LSC, relating to the place where the general meeting is to be held, was raised. That paragraph provides that, if the notice of meeting does not mention the place of the meeting, the meeting shall be deemed to be convened at the registered office of the company. However, the first paragraph is omitted, which states that, unless otherwise provided for in the articles of association, the meeting must be held in the municipality where the company has its registered office. The exclusion of this paragraph raised doubts with the registrar as to whether this omission implies the tacit exclusion of this obligation and allows meetings to be held outside the relevant municipality.

In this respect, the DGSJFP points out that, although the reproduction of mandatory rules in the articles of association is generally unnecessary, the partial inclusion of a provision does not automatically imply that the rule is excluded in its entirety or that confusion arises. The key to admitting registration is that the omission does not contravene the mandatory meaning of the law or generate ambiguous interpretations among shareholders and third parties consulting the articles of association.

In this regard, the DGSJFP concludes that the clause in question only highlights the content of the second paragraph with no intention of deleting the first, since the bylaws expressly refer to the LSC for anything not provided for. The ruling makes it clear that the mandatory rules do not lose their binding nature when omitted from the articles of association, since the legal system requires full compliance with article 175 of the LSC, regardless of its transcription in the articles of association. Thus, when the second paragraph of Article 175 is incorporated to emphasise that the meeting, in the absence of a specific location, must be held at the registered office, this does not authorise the directors to convene the meeting outside the municipal area.