The partner's right of withdrawal: rulings of 15 January, 2 and 9 February 2021


Introduction

The rulings of the Supreme Court (1st Civil Chamber) of 15 January, 2 and 9 February, all of 2021, deal for the first time with a series of highly interesting questions related to the exercise of the shareholder’s right of separation regulated in articles 346 et seq. of the Capital Companies Act.

This right of separation recognised in the Capital Companies Act allows the shareholder to withdraw from the company by recovering the fair value of his investment, provided that there are certain causes stipulated in the law or in the articles of association.

However, the Capital Companies Act is silent on a number of extremely important issues that have now been addressed by the aforementioned Supreme Court rulings, and which are analysed below.

 

At what point in time, once the right of withdrawal has been exercised, does the shareholder lose his or her status as a shareholder?

According to the Provincial Courts in our country, there could be three moments in which the status of partner is lost:

  1. When the shareholder informs the company of his intention to separate (declaration theory).
  2. When the company receives said communication (theory of receipt).
  3. When the company pays or consigns the reimbursement of the shareholder’s share, since the communication is only a prerequisite for the exercise of the right (reimbursement theory).

The Supreme Court argues that in capital companies, when the right of separation is exercised, a process is activated that consists of several actions: informing the shareholder about the value of his or her holdings or shares; agreement or, failing this, a report by an expert to value them; payment or reimbursement (or, where appropriate, consignment) of the established value; and, finally, execution of the deed of reduction of the share capital or acquisition of the holdings or shares.

The aforementioned Court considers that the receipt of the shareholder’s communication by the company simply triggers the aforementioned procedure, but for the effects of the right of separation to be produced, i.e. the extinction of the link between the shareholder and the company, the corporate relationship must have been liquidated and this only takes place when the shareholder is paid the value of his shareholding. Until this process is completed, the shareholder remains a shareholder and retains the rights and obligations inherent to this status.

In conclusion, the Supreme Court opts for the reimbursement theory and declares that, in capital companies, once the right of separation has been exercised by the shareholder, the shareholder does not lose the status of shareholder until the value of his shareholding is paid or consigned to him.

Without prejudice to the foregoing, it should be borne in mind that, in the case of a professional company, the Supreme Court (1st Chamber), in its ruling 186/2014, of 14 April, limited itself to resolving this issue in accordance with the wording of article 13.1 of the Capital Companies Act, which establishes that the right of separation is “effective from the moment that the company is notified”. In the rulings of the Supreme Court (1st Civil Chamber) dated 15 January, 2 and 9 February, all of 2021, the Supreme Court clarifies that it does not consider that the solution of article 13.1 of the Capital Companies Act can be generalised or extrapolated to capital companies, due to the singularity of the professional company, which is reflected in the illiquidity of the shares, since the shareholding of the professional partners is no longer part of the share capital, but rather a working share that is attributed according to the personal qualities of the partner. Moreover, in these professional partnerships, the personal burden of the services provided by the partner and the special working community established in this type of company, in which the behaviour and personal circumstances of the partners have a major impact on the others, are of great importance.

 

When does the right to redemption of the value of the capital shares arise?

The Capital Companies Act does not specify when the right to reimbursement of the shares arises once the right of separation has been exercised. In this regard, the Supreme Court understands that from articles 347.1, 348.2 and 348bis of the Capital Companies Act it can be deduced that it arises on the date on which the company has received the shareholder’s communication exercising his right of separation, because that is the moment to be taken into account for the valuation of his shareholding. The right to reimbursement is immediate upon exercise of the right of separation, without prejudice to the fact that the valuation operations must be carried out in accordance with the terms and deadlines set out in the Capital Companies Act.

 

How to classify the reimbursement claim arising from the exercise of the right of separation if it is an insolvency claim?

For insolvency purposes, the position of the shareholder who exercises his right of withdrawal is not the same as that of the shareholder of the liquidated company, since the right of reimbursement of the shareholder who has exercised the right of withdrawal (even if it has not been consummated) arises when the company receives notice of the exercise of the right, whereas that of the shareholder who has not exercised the right of withdrawal does not arise until the company is liquidated.

Consequently, the reimbursement claim resulting from the shareholder’s right of separation will be of an insolvency nature if the notification of its exercise took place prior to the declaration of the company’s insolvency. If the right of withdrawal is not exercised, the liquidation share is extra-bankruptcy, as it is subsequent to the claims of all the company’s creditors.

As regards the insolvency classification of the reimbursement claim arising from the exercise of the right of separation, the Supreme Court considers that it will be necessary to take into account the subjective (person especially related to the debtor) and objective (legal business giving rise to the claim) assumptions that concur at the time the claim arises. If both conditions are met, the repayment claim must be classified as subordinated, and the Court considers that the exception in article 281.2.3 of the Consolidated text of the Insolvency Act does not apply, given that “the repayment claim, insofar as it involves recovery of the investment made by the shareholder, is similar in nature to a company financing business”.