An exception to the statute amendment regime.
The registered office is one of the defining characteristics of capital companies. Article 9 of the Spanish Companies Act (LSC) establishes the following:
Article 9 Domicile
1. Capital companies will establish their domicile within Spanish territory in the place where the center of their effective administration and management is located, or where their main establishment or operation is based.
2. Capital companies whose main establishment or operation is located within Spanish territory must have their registered office in Spain.
Furthermore, in accordance with the provisions of Article 23 of the LSC, the company's registered office must be included in the articles of association
Consequently, every capital company must have a registered office, which in turn must be explicitly stated in the company's articles of association
However, since capital companies are living entities, it is natural that on many occasions the need or convenience arises to modify their registered office.
Since the registered office is an element that is an integral part of the articles of association, in accordance with the provisions of article 285.1 of the LSC – “Any modification of the articles of association shall be the responsibility of the general meeting.” – in principle the competent corporate body for its modification would be the general meeting.
However, section 2) of the same article 285 of the LSC establishes an exception to this general rule of attributing competence to the general meeting for any statutory change, since it literally states that "By exception to the provisions of the previous section, unless otherwise provided in the statutes, the administrative body shall be competent to change the registered office within the national territory."
Therefore, unless the articles of association contain an express provision that explicitly reserves to the general meeting the power to change the registered office, it will be possible for the administrative body, by its mere will, to autonomously agree to the modification of the registered office within the national territory.
In practice, therefore, two situations can occur:
a) That there is no statutory provision expressly reserving to the general meeting the power to change the registered office, in which case, for its materialization it will suffice for the administrative body, by means of a public deed authorized by a Notary, to solemnize its decision and that, subsequently, it is registered in the corresponding Commercial Registry.
b) That there is a statutory provision reserving the change of the company's registered office to the general meeting, in which case, for the adoption of said agreement, the matter must be submitted to a vote in the general meeting convened for that purpose with the requirements required by the statutory and/or legally, in order to subsequently formalize the agreements adopted and subsequently register them in the Commercial Registry.
Finally, it should be noted that the wording of article 285.2 of the LSC in its current version has been in force since May 27, 2015, since prior to that date, section 2) of article 285 of the LSC only empowered the administrative body to change the registered office of the company (unless there was a statutory provision reserving the power to the general meeting) within the same municipality, the legal reform having resulted in an expansion of the powers of the administrative body of capital companies.
Andreu Pujol
Commercial Area – Litigation
Àmbit Assesor
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