Usufruct of shares and abuse of rights: application of the lifting of the corporate veil by the AP of Barcelona

The Barcelona Provincial Court rules on the protection of usufructuary rights and shows that dilatory practices to the detriment of legitimate rights can lead to the lifting of the corporate veil, safeguarding the rights of those affected

The Barcelona Provincial Court, in its Judgment of 19 July 2024, ruled on capital increases that sought to reduce the rights of a usufructuary in a limited liability company. The origin of the conflict was a purchase contract that established an usufruct on 33% of the shares, eliminating the right of the usufructuary to benefit from the reserves when the usufruct was extinguished. As compensation, the usufructuary was granted the right to vote in matters of dividend distribution, although he was excluded from pre-emptive rights in future capital increases.

As no dividends were distributed between 2000 and 2004, the usufructuary filed a lawsuit against the bare owner claiming unjust enrichment. In its 2012 judgment, the Supreme Court ruled that the withholding of dividends undermined the usufruct, ordering the bare owner to compensate 25% of the distributable profits, and not 33% of the requested capital.

This litigation continued from 2005 to 2009, and the Barcelona Provincial Court upheld the compensation of 25% of the undistributed dividends. Between 2010 and 2016, the conflict intensified due to a restructuring, in which the bare owner created a company to transfer the shares and carried out capital increases that diluted the usufructuated shares. The Audiencia interpreted this manoeuvre as an abuse of the legal personality, reaffirming the usufructuary’s right to compensation equivalent to 25% of the profits generated.

The ruling also refers to article 348 bis LSC, which establishes the right to a dividend as a principle of justice and equity for the shareholders. This case sets a precedent in the protection of usufructuary rights and shows that dilatory practices to the detriment of legitimate rights can lead to the lifting of the corporate veil, safeguarding the rights of those affected.