The current article 348 bis of the Capital Companies Act (hereinafter, the CCA), which provides for the right of separation of the partner of a capital company, initially entered into force on October 2, 2011 in said legal text. Subsequently, and due largely to the possible adverse effects on many companies, it was suspended on June 24, 2012 until December 31, 2016, reestablishing said application on January 1, 2017, with exactly the same legal content as it was initially granted in the year 2011.
It is necessary to keep in mind the purpose of said article 348 bis, which is none other than to regulate the right of the minority to participate effectively in social gains. Consequently, said right, according to the majority doctrine, only finds a practical sense in the moment in which the board agrees the distribution of social benefits. Therefore, the article object of the present analysis is in itself one of the most effective instruments available to minority shareholders to deal with the abuse of majorities (specifically the prolonged refusal to obtain any type of economic performance of society), thus being able to separate from the company.
However, this precept has been able to give rise to situations in which minority shareholders have used the right of separation in a disproportionate manner, since the minority partner was granted a position of force in relation to the decision making of the distribution of benefits. At times, this could lead to an economic imbalance in society and even a risk to the viability of the companies themselves, who were forced to allocate part of their profits to dividends, given the lack of cash flow.
With the new wording given to article 348 bis, the legislator foresees that the right of separation for lack of distribution of dividends have a dispositive character and not imperative since the partners may agree to suppress or modify the cause of exercising said right through the bylaws. In this sense, the new wording given to article 348 bis establishes that, given the conditions for this, the partners may exercise the right of separation “except as otherwise provided in the bylaws”.
However, despite the fact that Law 11/2018 incorporates the requirement by virtue of which said modification shall be carried out with the unanimous agreement of all the partners, it also allows the modification to be agreed with the legal or statutorily established majority to modify the bylaws of the company and the vote against a member, provided that said partner is recognized his right of separation.