Shareholder’s standing to bring a company action for liability brought by the company

The shareholder is entitled to bring a direct company action in cases of breach of the duty of loyalty, irrespective of whether the company has previously brought such an action.

By allowing the shareholder to have standing to bring the identical action, the right of the minority shareholder is protected, who would not be left at the expense of the majority shareholders to continue or withdraw from the action brought by the company. The shareholders would retain their standing as interveners, but now as plaintiffs. The pronouncement was made in Judgement 501/2023 of 24 November 2023 of the Barcelona Provincial Court, which considers admissible the exercise of a second liability action for the same facts and claims as the action previously brought by the members of a board of directors for breach of the duty of loyalty, and therefore the proceedings are cumulative. In the present case, it was disputed whether the shareholders had standing to bring the second action, whether one of the alleged facts was time-barred and whether the actions attributed to the directors had been committed in breach of the duty of loyalty. As regards the limitation period, the Provincial Court reiterates the criterion that the four-year limitation period provided for in article 241 bis of the Capital Companies Act must be counted from the time the shareholders became aware of the event, at which time the action could have been brought, and not from the date of the occurrence of the irregular event, which in the present case consisted of the signing of a lease contract for an office owned by a person related to the defendant directors. See Sentencia 501/2023 del 24 de noviembre de 2023.