05 October 2023

Tax advisor: The imposition of abusive agreements from a criminal perspective

Abuse of the majority in the adoption of agreements is punishable both from a
civil or commercial perspective, when these exceed the normal limits of the
exercise of the rights, causing damage to third parties (art. 7.2 of the Civil Code)
and from a criminal perspective (art. 291 of the Criminal Code). Throughout this
article we will analyze the essential elements for the abuse of the majority to
be classified as a criminal offence.

Essential elements of the offence of abuse of the majority:

An agreement is considered abusive when, under the correct compliance with
the formal requirements, it is adopted for the benefit of the majority, contravening
the corporate principle of solidarity in the risks and to the detriment of the minority.
However, not every abusive agreement can be subsumed under Article 291 of
the Criminal Code.
For this to be the case, it must be adopted in a substantially arbitrary manner,
so that it is unjustified for the minority shareholders to see their property interests
compromised1. Any agreement which, assessed in the light of the company’s
interests, is considered beneficial to the company will exclude criminality.
Likewise, there must be willful misconduct and a clear intention to make a profit
to the detriment of the minority shareholders2.

The penalty associated with this offence is imprisonment of six months to three
years or a fine of up to three times the profit obtained.

Protected interests:
The protected legal interests are the proper administration of the companies, the
economic interests of both the shareholders and the company, and the good faith
or trust that arises in legal transactions.

We should also take into account the connection of this offence with other
corporate offences such as the offence of preventing the exercise of shareholderrights (Art. 293 PC) and the offence of fraudulent or disloyal administration (Art.295 PC).

Art. 292 PC, in turn, criminalizes the adoption of harmful resolutions adopted by
a fictitious majority using the following means: blank signatures, the undue
attribution of voting rights to those who do not have them, the unlawful denial of
voting rights to those who have them recognized by law or any other similar
means or procedure that is preconfigured to generate a fictitious majority.

Consummation of the offence:

The offence of imposition of an abusive agreement is a special offence that does
not require the existence of actual harm, instead it is consummated at the
moment of its adoption.
Those who hold a majority position in the administrative body or in the
shareholders’ meeting of a company can be punished with a prison penalty of six
months to three years or a fine of three times the profit obtained when, taking
advantage of their majority position, they impose abusive agreements for their
own or another’s profit to the detriment of the rest of the shareholders and without
bringing benefits to the company.

B Law & Tax International Tax & Legal Advisors.

“En B LAW&TAX somos especialistas en asesoramiento fiscal internacional tanto a empresas como para particulares. Si desea ampliar la presente información, estaremos encantados de poder atenderle en el 917817194 o en [email protected]