In a 4 April 2022 decision, the General Directorate of Legal Affairs (DGSJyFP) ruled on whether the numbering of the shares recorded as having been redeemed in the share capital reduction deed should coincide with the numbering of the shares that is recorded at the Mercantile Registry.
This case arose from an appeal lodged by a notary against the refusal of the registrar of Mercantile Registry II of Vizcaya to register a share capital reduction of a public limited company because the numbering of the shares (represented as share certificates) in the articles of association filed at the Mercantile Registry and those being redeemed in accordance with the deed did not match.
The notary argued that the correlation of the numbering of the shares refers only to the moment of issuing the shares as part of the company's incorporation or if there is a share capital increase. He further argued that article 116 of the Spanish Corporate Enterprises Act states that the shareholders' record is responsible for:
- providing proof of ownership;
- following any transmission of shares; and
- showing any charges granted in relation to the shares.
Therefore, any changes of circumstances that may affect the shares of any publicly held company are independent from the Mercantile Registry.
On the other hand, he argued that:
throughout the life of the company there are cases in which some of the shares may be cancelled or redeemed, leaving a gap in the correlative numbering, without necessarily having to renumber again all the outstanding shares.
This is what occurred in this case as the company's capital was recorded at the Mercantile Registry with the shares numbered consecutively with a gap within that numbering (according to the Mercantile Registry, the share capital was divided into 43,995 shares numbered one to 300 and 11,475 to 55,169).
In short, according to the appellant, in the deed under discussion there was a correlation and a complete tract between the figure for the share capital, the number of shares and their nominal value, where all these values coincide with the information in the Mercantile Registry, so that the different numbering of the existing shares in the Mercantile Registry and the shareholders' record should not be an obstacle to the registration of the share capital reduction. In their opinion, the data relating to the specific numbering of the issued shares, rather than redeemed ones, concerned only the shareholders and, therefore, was irrelevant for third parties.
In order to resolve the appeal, the DGSJyFP argued that, when shares are represented by certificates, the Spanish Corporate Enterprises Act considers them to be non-fungible assets – that is, the numbering required is not intended solely to represent their value in the share capital, but the numbering qualitatively identifies the shareholder's position.
This can be deduced from the various articles of the Spanish Corporate Enterprise Act and the Mercantile Registry Regulations that refer to:
- the numbering of shares;
- shares that relate to the deed of incorporation;
- shares allocated in exchange for contributions made at the time of incorporation;
- the allocation made in exchange for non-monetary contributions;
- the deeds outlining capital increases;
- the certification of the outcome that arises from sequential formation companies;
- the appointment of directors via co-option;
- the necessary requirements of the credit instrument being represented that relate to their number and series.
Once again, the DGSJyFP stressed the importance of publishing the specific numbering of the shares issued (and not redeemed) at the Mercantile Registry in order to consider them as a negotiable instrument and not because there is a need for correlative renumbering of the remaining shares after the capital reduction, which no regulation requires.
One of the characteristics of the share as a negotiable instrument is its causal relationship, meaning that the issue of the title does not confer the status of shareholder but documents it. Further, the share certificate is to a certain extent "incomplete" because the rights and duties attached to the shares are set out in the articles of association, the content of which can change over time. Consequently, the registration of the articles of association is considered as an addition to the share certificate that outlines the position of the shareholder and informs about their continued existence as shareholder.
For further information on this topic please contact Alexa Flórez at CMS Albiñana & Suarez de Lezo by telephone (+34 91 451 9300) or email ([email protected]). The CMS Albiñana & Suarez de Lezo website can be accessed at www.cms.law.