PKF Attest

Legal

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It is only necessary for the agenda to mention the matters to be discussed at the meeting, without it also being indispensable for the text of the specific proposal to be voted on at the meeting to appear.

Satisfaction of the member's right to information does not require that the member exercising this right be convinced by the information provided, but rather that the information be provided in reasonable terms, albeit concisely or briefly.

AP Madrid 12-11-21, EDJ 823847

A shareholder challenges the corporate resolutions adopted at a certain meeting, including the directors' remuneration, for infringement of article 174 of the LSC, due to the fact that, during the course of the meeting, the initial content of the agenda, which was "Considerations on the remuneration of the directors and, if applicable, decisions to be adopted in this respect", was modified by three new proposals that later became the respective resolutions approved at the meeting:

Toauthorize to proceed with the preparation of the remuneration proposal for the Board of Directors of the Company and for the quotation of the directors' liability insurance policy in accordance with the aforementioned.

2.- Ratification by the members present of the knowledge and acceptance of the form and amount of the remuneration being received for non-management functions and its maintenance indefinitely until the Meeting agrees otherwise.

To ratify the agreements raised to the deed authorized by Mr. Fulgencio dated June 12, 2012, number 1,029 of protocol, with date of registration in the Mercantile Registry August 21, 2012".

The claim was dismissed in both instances. The Provincial Court points out that article 174 of the LSC only requires mentioning in the agenda the matters to be discussed at the meeting, in such a way as to enable the shareholder to understand what is to be discussed at the meeting. This legal mandate is fulfilled with the reference, with sufficient clarity, of what is to be discussed at the meeting, without it also being indispensable for the agenda to include the text of the specific proposal that is finally to be voted on at the meeting.

In the case at hand, the plaintiff was aware that the issue of directors' remuneration was going to be discussed, which was a matter that had given rise to some controversy regarding the criteria that had been applied, as well as the fact that, in addition to allowing debate on the matter, decisions on the matter were going to be adopted at the meeting itself.

There is no room to argue that we are dealing with what could have been a surprising matter for the partner, which is, in essence, the only thing that the appellant is raising in this second instance as a reason for his challenge.

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Agreement approving the Annual Regulatory Plan of the General State Administration for the year 2022

All ministries have participated in the preparation of NAP-22 and the 368 regulatory proposals that comprise it develop the Government's program and the Recovery, Transformation and Resilience Plan (PRTR). These proposals include 92 laws (11 organic and 81 ordinary) and 276 royal decrees. Almost four out of ten laws (38.2%) develop PRTR commitments. In total, 61 of the 368 projects are related (16.57%).

Among the standards that are part of PAN-22 are the following:

Digital transformation

  • Reform of the Science Law to guarantee an attractive and stable research career, promote knowledge transfer and foster research by facilitating coordination with the Autonomous Regions and the administrative procedures for new projects.
  • Reform of the Industry Law, which adapts the 1992 text to the current productive and economic reality.
  • Law to ensure the security of 5G electronic communications networks and services, which will also promote market diversification.
  • Royal decree developing the statute of the student startup, a pedagogical tool to enable them to carry out internships as if they were actually creating their own company.

Social and territorial cohesion

  • Housing Law, which regulates the basic conditions for the enjoyment of the right to decent housing, providing public administrations with instruments to contain price increases and favor access by young people.
  • Law for the equity, universality and cohesion of the National Health System, which guarantees the homogeneity of health services throughout the country, establishes direct public management as the preferred management formula and limits the establishment of new co-payments.
  • Social services law, committed to in the government agreement to guarantee a minimum portfolio of services throughout the territory.
  • Royal Decree regulating the seal of social inclusion, a public label for public and private companies that develop actions that contribute to the transition of people benefiting from the minimum living income to active participation in society.
  • Law against racism and other forms of intolerance.
  • Law on the organizational regime of municipalities with smaller populations and on the improvement of collaboration relations between public administrations, in order to digitalize and modernize rural municipalities and thus contribute to slowing down depopulation.

Gender equality

  • Reform of the Law on Integral Protection against Gender Violence, in order to advance in the fulfillment of international commitments and to adapt it to the State Pact and the Organic Law on Integral Guarantee of Sexual Freedom.
  • Law for comprehensive action against trafficking in human beings and for the protection of victims, which will especially address trafficking for the purpose of sexual exploitation.
  • Amendment of the Law on Sexual Health and Voluntary Interruption of Pregnancy, to promote and guarantee full, real and effective equality of women in access to sexual and reproductive health and free decision on voluntary interruption of pregnancy.
  • Transposition of the Directive on reconciliation of family and professional life of parents and caregivers, which establishes new rights on parental and caregiver leave.

Ecological transition

  • Law establishing the rules for the implementation in Spain of the common agricultural policy management system.
  • Sustainable fisheries and fisheries research law, to promote the modernization of the sector.
  • Amendment of the Nuclear Energy Act, in relation to radiologically contaminated land.
  • Transposition of the Directive on the promotion of the use of energy from renewable sources.
  • Royal Decree on the protection of water against diffuse pollution caused by nitrates.
  • Another block of regulations focuses on democratic regeneration, among which the law on the prevention of interests in the public sector and the law on transparency stand out.

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In August 2021, an interesting resolution of the General Directorate of Legal Security and Public Faith has been published in the Official State Gazette on an issue that affects commercial companies: the registry closure.

By Resolution of July 29, 2021, the registration of the resolutions adopted by the general meeting of a limited liability company regarding the termination and appointment of a sole administrator is denied due to the following reasons:

  • The company has been provisionally deregistered in the Index of Entities of the Ministry of Finance, notified to the Registry for the purposes of the provisions of Articles 137 of Law 43/1995 on Corporate Income Tax and Art. 96 RRM.
  • The company's corporate page is closed as determined by article 378 RRM due to the lack of deposit of the corresponding annual accounts.
  • The company has a revoked tax identification number (CIF) according to the revocation order sent to the Registry by the Tax Agency.

In response to the appeal, the Directorate General of Legal Security and Public Faith, resolved that, if the closing of the registry were motivated only by the failure to comply with the obligation to deposit the annual accounts, the provisions of article 282 of the Capital Companies Act, as well as article 378.1 and the fifth transitory provision of the Regulations of the Mercantile Registry, would result in the registration of the termination of the administrator. However, since the closing of the registry has also occurred as a consequence of the provisional deregistration of the company in the IEAEAT, such registration is not possible. Article 119.2 of Law 27/2014 of 27 November on Corporate Income Tax establishes that, after registering the provisional deregistration of the company, no registration concerning the company may be made without the presentation of the certificate of registration in the index of entities.

In addition, with regard to the refusal of registration due to the revocation of the company's tax identification number, the DGSJFP states that when the revocation refers to the tax identification number of an entity, its publication in the BOE will imply the prohibition of access to any public registry, including those of an administrative nature, unless the tax identification number is reinstated. Thus, the DGSJFP concludes that indeed, the effect of total closure of the company's registered office is the same both in the case of provisional deregistration in the Index of Entities of the Ministry of Finance and in the case of revocation of the tax identification number, so that the registration cannot be carried out.

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Prior public consultation on the transposition of Directive (EU) 2020/1828 of the European Parliament and of the Council of 25 November 2020 on representative actions for the protection of the collective interests of consumers and repealing Directive 2009/22/EC

This regulation transposes Directive (EU) 2020/1828, which aims to ensure the existence of at least one process for the defense of consumers' interests in their civil procedural systems through qualified entities that represent consumers and that can bring actions for injunctions and damages, when there is an infringement by an entrepreneur of the provisions of Union law.

The Directive does not impose full harmonization, as it allows States to go further in the measures to be adopted. Moreover, the Directive should not replace existing national procedural mechanisms to protect the collective or individual interests of consumers.

It also requires the recognition of legal standing in all national systems of qualified entities for the purposes of cross-border actions regardless of the State of designation.

The following aspects of the Directive can also be highlighted:

  • The existence of agile mechanisms in relation to injunctions and, if necessary, precautionary measures, there will be an expedited process.
  • As a general rule, the represented consumer will not be charged for the costs of the proceedings.
  • The requirement to show evidence to the employer.
  • The possibility of providing as evidence, in compensation action proceedings, the final resolutions declaring the employer's infringement.
  • Suspension or interruption of the statute of limitations with the filing of an action for injunctive relief or reparation.

The prior public consultation will be open until September 25, 2021.

We offer regulatory advisory services in a business environment in which it is essential to have as much information as possible to support decision making. From the Regulation & Public Policy Group we are able to help manage business regulatory risk through our regulatory monitoring and regulatory intelligence services.

Contact us if you have any questions.

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On October 1, 2021, the regulations establishing penalties for non-compliance with Law 10/2021, of July 9, 2021, on telecommuting came into force.

The penalties for infringing this rule can range from 70 to 225,000 euros and are associated with breaches of the content of the Telework Agreement that must be included in the annex to the employment contract signed by the company and the employee, which regulates the way in which the telecommuting modality will be carried out.

Law 10/2021, of July 9, 21, on telecommuting, sets forth the minimum contents that must be included in such agreement, as well as the means to be used and the expenses generated by telecommuting and the telecommuting schedule and calendar.

If the necessary means for teleworking were not provided, depending on the seriousness of the offense, the penalty may be minor, serious or very serious:

  • Minor with fines from 70 to 150 euros in its minimum degree; in its medium degree, from 151 to 370 euros; and in its maximum degree, from 371 to 750 euros.
  • Serious offences with a minimum fine of 751 to 1,500 euros, a medium fine of 1,501 to 3,750 euros, and a maximum fine of 3,751 to 7,500 euros.
  • The very serious ones with a fine in its minimum degree of 7,501 to 30,000 euros; in its medium degree of 30,001 to 120,005 euros; and in its maximum degree of 120,006 euros to 225,018 euros.

In order to avoid these sanctions, Article 7 of Law 10/2021, of July 9, on telecommuting, lists the mandatory points that the Telework Agreement must have and that must be respected during the employment relationship. These are:

a. Inventory of the means, equipment and tools required for the development of the concerted remote work, including consumables and movable elements, as well as the useful life or maximum period for their renewal.

b) A list of the expenses that the employee may incur due to the fact of rendering remote services, as well as the form of quantification of the compensation that the company is obliged to pay and the time and manner of payment, which shall correspond, if any, to the provision set forth in the applicable collective bargaining agreement or agreement.

c) Work schedule of the employee and within it, if applicable, availability rules.

d) Percentage and distribution between face-to-face work and distance work, if applicable.

e) Work center of the company to which the telecommuting worker is assigned and where, if applicable, he/she will carry out the part of the working day in person.

f) Place of telecommuting chosen by the employee for the development of telecommuting.

g) Duration of notice periods for the exercise of reversibility situations, if applicable.

h) Means of corporate control of the activity.

i) Procedure to be followed in the event of technical difficulties that prevent the normal development of the remote work.

j) Instructions issued by the company, with the participation of the workers' legal representatives, on data protection matters, specifically applicable to telecommuting.

k) Instructions issued by the company, after informing the legal representatives of the workers, on information security, specifically applicable to remote work.

l) Duration of the telecommuting agreement.