Analysing significance of numbered shares when share capital is diminished in public restricted firm – Commentary




In a 4 April 2022 determination, the Common Directorate of Authorized Affairs (DGSJyFP) dominated on whether or not the numbering of the shares recorded as having been redeemed within the share capital discount deed ought to coincide with the numbering of the shares that’s recorded on the Mercantile Registry.


This case arose from an enchantment lodged by a notary in opposition to the refusal of the registrar of Mercantile Registry II of Vizcaya to register a share capital discount of a public restricted firm as a result of the numbering of the shares (represented as share certificates) within the articles of affiliation filed on the Mercantile Registry and people being redeemed in accordance with the deed didn’t match.

The notary argued that the correlation of the numbering of the shares refers solely to the second of issuing the shares as a part of the corporate’s incorporation or if there’s a share capital improve. He additional argued that article 116 of the Spanish Company Enterprises Act states that the shareholders’ file is accountable for:

  • offering proof of possession;
  • following any transmission of shares; and
  • exhibiting any expenses granted in relation to the shares.

Subsequently, any adjustments of circumstances that will have an effect on the shares of any publicly held firm are impartial from the Mercantile Registry.

Alternatively, he argued that:

all through the lifetime of the corporate there are circumstances wherein a few of the shares could also be cancelled or redeemed, leaving a niche within the correlative numbering, with out essentially having to renumber once more all of the excellent shares.

That is what occurred on this case as the corporate’s capital was recorded on the Mercantile Registry with the shares numbered consecutively with a niche inside that numbering (in keeping with the Mercantile Registry, the share capital was divided into 43,995 shares numbered one to 300 and 11,475 to 55,169).

Briefly, in keeping with the appellant, within the deed underneath dialogue there was a correlation and an entire tract between the determine for the share capital, the variety of shares and their nominal worth, the place all these values coincide with the data within the Mercantile Registry, in order that the totally different numbering of the present shares within the Mercantile Registry and the shareholders’ file shouldn’t be an impediment to the registration of the share capital discount. Of their opinion, the information referring to the precise numbering of the issued shares, somewhat than redeemed ones, involved solely the shareholders and, due to this fact, was irrelevant for third events.


With a view to resolve the enchantment, the DGSJyFP argued that, when shares are represented by certificates, the Spanish Company Enterprises Act considers them to be non-fungible property – that’s, the numbering required just isn’t meant solely to symbolize their worth within the share capital, however the numbering qualitatively identifies the shareholder’s place.

This may be deduced from the varied articles of the Spanish Company Enterprise Act and the Mercantile Registry Rules that check with:

  • the numbering of shares;
  • shares that relate to the deed of incorporation;
  • shares allotted in trade for contributions made on the time of incorporation;
  • the allocation made in trade for non-monetary contributions;
  • the deeds outlining capital will increase;
  • the certification of the result that arises from sequential formation firms;
  • the appointment of administrators through co-option;
  • the mandatory necessities of the credit score instrument being represented that relate to their quantity and collection.

As soon as once more, the DGSJyFP pressured the significance of publishing the precise numbering of the shares issued (and never redeemed) on the Mercantile Registry as a way to take into account them as a negotiable instrument and never as a result of there’s a want for correlative renumbering of the remaining shares after the capital discount, which no regulation requires.


One of many traits of the share as a negotiable instrument is its causal relationship, that means that the problem of the title doesn’t confer the standing of shareholder however paperwork it. Additional, the share certificates is to a sure extent “incomplete” as a result of the rights and duties connected to the shares are set out within the articles of affiliation, the content material of which might change over time. Consequently, the registration of the articles of affiliation is taken into account as an addition to the share certificates that outlines the place of the shareholder and informs about their continued existence as shareholder.

For additional data on this matter please contact Alexa Flórez at CMS Albiñana & Suarez de Lezo by phone (+34 91 451 9300) or electronic mail ([email protected]). The CMS Albiñana & Suarez de Lezo web site will be accessed at www.cms.regulation.


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