The Spanish Companies Act 1/2010, of 2 July 2010, was amended by Act 31/2014, of 3 December. Among the amendments introduced by the Act, there is one which may be particularly relevant for companies owning Intellectual or Industrial Property rights (e.g. patents, patent applications, know-how, trademarks, trade secrets, copyrights, etc.), without them even knowing.
Pursuant to the amended Act, the members of a general meeting shall be entitled to authorize the acquisition, disposal and transfer to another entity of the company’s essential assets. The asset is deemed essential when the value of the operation exceeds the assets’ value by 25% (based on the last approved balance sheet). However, an asset could still fall within this category if, in spite of not reaching that level, it is essential for other reasons (e.g. royalties received).
It goes without saying that some Intellectual or Industrial Property rights may easily exceed the assets’ value by 25% but there could also be others under the level which are still essential for the company. Consequently, any of the said operations involving assets as described above would be subject to prior authorization by the members of a general meeting. Therefore, if directors performed the operation without such authorization, they would be responsible for such action and the operation would be void.
The importance of this new amendment is clear in the context of Intellectual or Industrial Property rights. Such operations are performed on a more or less regular basis so the requirement for authorization via general meeting should be carefully evaluated.