Article 363.1.e) of the Capital Companies Act establishes that companies in a situation of losses that have reduced the net worth to an amount lower than half of the share capital, unless the latter is increased or reduced sufficiently, and provided that it is not appropriate to request a declaration of insolvency, must be dissolved. And Article 365 of the aforementioned Law stipulates the obligation of the directors to call a general meeting within two months to adopt the dissolution resolution. Any shareholder is entitled to request the directors to call the meeting if, in his/her opinion, there are grounds for dissolution.
Law 16/2022, of 5 September, reforming the Consolidated Text of the Insolvency Act, which will come into force as of 26 September 2022, adds a paragraph 3 to the aforementioned Article 365 of the Capital Companies Act, discharging the directors from this obligation to call a general meeting to adopt a resolution to dissolve the company when they have duly requested the declaration of the company’s insolvency or notified the competent court of the existence of negotiations with creditors to reach a plan to restructure assets, liabilities or both within the aforementioned two-month period.
However, such discharge is not perpetual but is a temporary suspension which will cease to have effect immediately as soon as the effects of that communication lapse, i.e. three months from the communication of the opening of negotiations with the creditors, unless an extension is requested before the end of this period by the debtor or creditors representing more than fifty per cent of the liabilities which, at the time of the request for extension, may be affected by the restructuring plan, deducting the amount of the claims which, in the event of insolvency proceedings, would be considered subordinate, and it is so agreed by the judge. If the restructuring plan is not reached, the two-month period shall resume as soon as the communication of the commencement of negotiations ceases to have effect.
Failure by the directors to comply with this obligation to call a meeting or, as the case may be, to request a declaration of insolvency or to notify the existence of negotiations with creditors within the aforementioned two-month period means that the directors have to be jointly and severally liable for the company’s debts subsequent to the occurrence of the cause for dissolution or, in the event of appointment subsequent to such occurrence, for the company’s obligations subsequent to the acceptance of the appointment.