Temporary application of the member’s separation right

The AP Barcelona considers that, for the purpose of exercising the right of separation of the member due to lack of distribution of dividends, the relevant date is the agreement for the approval of accounts and not the year to which the accounts refer.

On March 13, 2017, a company approves the accounts for the year 2017, and one of its partners exercises its right of separation due to lack of distribution of dividends under the terms of art. 348 bis LSC.

The defendant company alleges that in the year to which the accounts refer (2015) the right of separation was not in force.

The courts, after reviewing the different periods of time in which this right of separation has been in force – and is – reject this claim, because what is relevant is not the exercise to which the accounts refer, but the date on which they are approved, and in 2017 the aforementioned right was in force again. The Provincial Court notes in this regard: «When the meeting was held where the accounts were approved on the basis of which the plaintiff exercised her right of separation in accordance with art. 348 bis LSC, the plaintiff had legal coverage to exercise this right, without taking into account that the accounts and the benefit that was intended to be obtained by the applicant were referred to the year 2015.

In this matter, the norm does not make any distinction to the exercises on which it can be applied, and even less so when, in addition, the company, in this case, approved these annual accounts (2015) one year after the legally established deadline for This, without offering any justification for the reason for such delay, a circumstance that also prevents us from accepting, except for another explanation, an interpretation that favors the violator of the breach of the duties that in the matter of formulation and approval of annual accounts are imposed by the LSC, to the detriment of the shareholder who intends to receive its benefits ».