The impossibility of registering ‘disagreements’ in the Companies Register

The Commercial Register does not allow the registration of proposals discussed at a shareholders’ general meeting that do not become resolutions due to tied votes, according to the decision of the Directorate General for Legal Certainty and Public Faith of 31 October 2024 (BOE no. 282 of 22 November), which confirmed the refusal to register a ‘lack of agreement’ regarding the re-election of directors whose term of office had expired.

During a general meeting, the shareholders discussed the re-election of directors after the expiry of their term of office. However, the votes were tied, preventing an agreement from being reached. Subsequently, an application was made to register this ‘non-approval’ in the commercial register by means of the notarial minutes of the meeting. The commercial registrar refused registration on the grounds that the Capital Companies Act (LSC) requires a majority for the adoption of resolutions and does not provide for mechanisms to resolve ties in the voting at the meeting.

The Directorate General confirmed this decision on the basis of three main arguments:

1. Majorities and ties at meetings: The LSC establishes that resolutions must be adopted by majority vote. There is no regulation allowing, or enabling by the articles of association, mechanisms to resolve ties in voting. Furthermore, it was pointed out that systematic ties could lead to the dissolution of the company under Article 363 LSC, due to the impossibility of fulfilling its corporate purpose or paralysis of the corporate bodies.
2. Principle of typicality in the register: The Commercial Register operates under a numerus clausus principle, which limits the subjects and acts that can be registered. This principle excludes situations such as the absence of resolutions at a general meeting, as these do not constitute registrable acts and are not provided for in the registry regulations.
3. Scope of conflict resolution: The resolution of ties at a general meeting, as well as the liabilities arising from the consequences of such situations, do not fall within the scope of the register. These matters must be resolved in the jurisdictional framework, as provided for by the legal system.

The resolution emphasises that the Commercial Register cannot be used to reflect situations that do not constitute registrable acts under the law. Furthermore, it underlines the importance of providing for solutions in the articles of association to avoid the paralysis of the company due to a lack of resolutions. In this context, the resolution of ties could be addressed through measures such as the intervention of an arbitrator or additional mechanisms provided for in the articles of association, although their validity would depend on the judicial analysis in each case.