The actions taken by an administrator of this type may go unnoticed when there is a general agreement; however, they may be challenged by alleging lack of legitimacy when there is any disagreement, and may be declared null and void.
As you may already know, the responsibility of administrators extends to the "de facto administrator" (who acts as such without having been formally appointed - or having had their position expired - or gives instructions to the officially appointed administrator), but it must be possible to prove that they are such.
The Supreme Court understands de facto administrators to be those who, without formally holding the appointment of administrator and other required qualifications, exercise the function as if they were legitimate, dispensing with such formalities.
This definition excludes persons who regularly act on behalf of administrators or as their managers, since the characteristic of a de facto administrator is not the material performance of certain functions, but acting in the capacity of administrator, without observing the minimum formalities that the Law or the statutes require to acquire such status.
Nor should it be confused with the figure of attorneys-in-fact. Attorneys-in-fact are individuals appointed unilaterally by the company to act on its behalf. They are characterized by being appointed by public deed and for a specific period of time or for specific actions, all of which will be stated in the power of attorney, which is revocable under certain conditions and circumstances. Therefore, it should not be confused with or included within the definition of a de facto director, as there is extensive case law that distinguishes between them.
It may be a hidden administrator, who dictates instructions to the de jure administrators on how to proceed, or a notorious administrator, who acts and is recognized as such, but without complying with the procedures for a correct appointment.
The existence of this figure is not unusual, since sometimes, in order to facilitate and expedite the procedures to be carried out, compliance with the statutory rules is eliminated, leaving the company satisfied with the de facto administrator.
In addition, despite not being true de jure administrators, they have the same responsibility, as established by article 263.3 of the Capital Companies Law.
There are numerous convictions of de facto directors, holding them jointly and severally liable with the company, as if they were de jure directors. Extensive case law has focused on determining whether this joint and several liability extends to these individuals, considering their roles and characteristics to ascertain whether they could be considered de facto directors. This also applies to lawsuits alleging mismanagement.
In summary, although it may sometimes be faster and simpler in the short term, taking matters into one's own hands is not advisable, as disregarding the legal route can lead to problems in the medium and long term, especially when disagreements arise between the different people who are bound by a legal relationship.
This is not an exception; this is the appointment of administrators in companies.
You can contact this professional office for any questions or clarifications you may have.
Warm regards,
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A Àmbit Assessor, SL has 40 years dedicated to the tax, comptable and labor consultancy of the Pime.
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