On the 23rd of July, 2015, the new Law, 15/2015, of the 2nd of July, on Voluntary Jurisdiction, came into effect, with significant changes being introduced from a commercial point of view.
The new Law 15/2015 of the 2nd of July on Voluntary Jurisdiction introduces significant changes from a commercial point of view. It seeks to offer the partners and legitimate interested parties of a commercial company new ways of taking action, which make obtaining or exercising the rights granted to them by Law 1/2010 on Capital Companies easier or more flexible in the cases referred to in the new regulation.
In order to achieve this, the aim is to optimise the public resources available, attributing competence for these cases to different legal operators, such as legal secretaries (on commercial jurisdiction), notaries and commercial registrars, this competence generally being shared for their knowledge. These professionals, jurists and civil law notary publics have sound knowledge of professional practice, given that legal secretaries and notaries grant judicial and extrajudicial authority and registrars have direct, specialised knowledge in the field of commercial law.
Specifically, Title VIII of the Law includes documents on Voluntary Jurisdiction on commercial matters, focusing on a series of actions introduced with a new regulation, which partially amend the law on Capital Companies.
New competences were shared amongst the appropriate civil servants rationally, whereby they were given free choice on the regulation applied to carry out these new functions granted by law.
To this end, the Law specifically attributes exclusive competence to commercial judges to exhibit books on behalf of those obliged to keep accounts, as well as in cases of the legal dissolution of companies when the causes of obligatory dissolution taxed by the Law of Capital Companies come together.
All other new affairs approved by the law grant exclusive competence to Legal Secretaries and Commercial Registrars on company matters. One example of this, amongst others that will be mentioned later on, is the General shareholders or debenturist meeting (provided that they have not met within the legal time frame or the time frame set out in the statutes). As such, the former regulation referred to a legal meeting, precisely because the ability to convene a meeting was held by the commercial judge. Nevertheless, the new law empowers partners of the company themselves to file a request for a meeting, be it before the legal secretary or before the commercial registrar of the company address.
Treasury shares
The new law also affects other aspects such as the obligation companies have to reduce capital when the same has acquired their own shares or share-ownerships. In this case, when the legal period in which to alienate the shares or share-ownerships acquired from treasury shares has come to an end, any interested party with legitimate interest may request a reduction of the company's capital from the legal secretary or commercial registrar.
Another type of commercial affair affected is the appointment or withdrawal of auditors, interveners and settlers of the companies, in addition to the filling of vacancies. These affairs are added to the list which, with prior request, may be requested before either the secretaries or registrars.
Moreover, as far as the defence of rights is concerned, it is important to bear in mind that, in those commercial affairs in which competence is shared, the start of proceedings along one route excludes the other. In other words, two parallel proceedings cannot be opened.
The protection of these defence rights is guaranteed, given that the regulation of the commercial registrar may be appealed in accordance with the proceedings of the Regulation of the Commercial Register, whilst that of the legal secretary may be appealed before the judge of the commercial court. As such, maximum respect of guarantees and legal security is granted, although, as an exception, it must be noted that the legal ruling is undisputable in cases of obligatory legal dissolution, it not being possible to file an appeal against the same.
In light of all the above, it makes it possible to make this kind of commercial affair more flexible in order to avoid hindering company life and putting an end, in the shortest time possible, to potential corporate issues that may arise from the company's legal traffic.
As a result, it is clear that the legislator has chosen to separate voluntary jurisdiction from common procedural regulation in order to offer the subject and rights holder simple, effective means that make it possible to obtain certain effected taxed by law quickly, whilst respecting all rights and interests involved - this being the main aim of the regulation - thereby significantly reducing the initial action of the commercial judges who were previously responsible for these issues.
These regulatory changes will produce new voluntary jurisdiction documents which will make proceedings more flexible and will help Commercial Judges to discharge issues, although sufficient time is needed to be able to effectively and objectively evaluate all of the advantages the Law on Voluntary Jurisdiction sets forth, whereby the practical application of this law will result in the increased involvement of commercial registers.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
