Rectification of a capital increase requires the agreement of the General Meeting of Shareholders

The reduction of the share capital must be adopted by a resolution to decrease the share capital, complying with the requirements of the Capital Companies Act and with the adoption of the creditor protection mechanisms deemed necessary by the General Meeting.

In the Resolution dated 16 October 2023, the Directorate General for Legal Security and Public Faith (DGSJFP) ratified the negative rating note of registration of the Commercial Registrar regarding a rectification of a capital increase agreement, on the grounds that the capital increase agreement was duly registered and executed, so that the subsequent rectification would entail a reduction in the amount of share capital by restitution of the contributions, without complying with the legal requirements. The present case consisted of a first deed of capital increase filed on 4 March 2022, registered on 7 April of the same year. Then, on 30 March 2023, the notary authorised a rectification in which an error was alleged in the certification of the General Meeting, due to a difference of €127 less. The rectification consisted of a capital reduction, which had to be approved by the General Meeting of Shareholders, specifically agreeing whether the shareholders were jointly and severally liable for the restitution or whether it was guaranteed by the constitution of an unavailable reserve in accordance with Article 332 of the Capital Companies Act. The DGSJFP considers that, regardless of the cause of rectification of the legal transaction affecting the share capital figure, the mechanisms for protecting third parties resulting from the intangibility of third party registrations without the consent of their owner cannot be confused, and therefore the title by which the rectification is sought must meet the requirements for the protection of third parties provided for in the legal system.

Ver Resolución de fecha 16 de octubre de 2023, de la DGSJFP.