LA PROPORCIONALIDAD ENTRE VOTOS Y CAPITAL EN LA SOCIEDAD ANÓNIMA. REFLEXIONES EN TORNO A LA MAYORÍA ECONÓMICA EN LA JUNTA DE ACCIONISTAS.

Abstract

Despite the fuzziness of section 93 of the Corporations Act (Legislative Decree 1564/1989 of 22 December), there are different portions of the act that support the affirmation that in corporations and for shareholders' resolutions, «majority» means a majority of capital, not of persons. Indeed, for resolutions made at a shareholders' meeting, the weight that a shareholder lends to or withholds from the majority depends on that shareholder' s economic interest in the company. These things all stem from a severe legal imposition whereby the capital (or the quantity of share capital) held by each shareholder must be proportional to the number of votes the shareholder may give to or withhold from the majority in the resolution process. Doctrine usually terms this circumstance the «economic majority», the «real majority» or the «majority of capital», as opposed to the majority made up of persons or shareholders, i.e., the «majority of men». Nevertheless, in the particular case of Spain's Corporations Act, the majority is affected by the existence of certain events that may shift or colour the strict proportionality between the number of votes given at the shareholders' meetings and the amount of share capital held. Prohibitions of this sort appear in company by-laws, placing a ceiling on the number of votes a single shareholder has in certain cases (under the Corporations Act, section 105), creating different series of shares or, as is customary, denying voting rights to certain types of shares (non-voting stock or shares belonging to delinquent shareholders). In this fashion and in all purity, in order for resolutions to be made by shareholders in a corporation, the Spanish Corporations Act proposes a real majority, not a majority of men, but a majority based on each shareholder' s economic possession of part of the share capital. In practice this real majority is the same as a majority of votes, as certain laws exclude the direct correlation between share capital held and the number of votes a shareholder may give, which logically has a repercussion in terms of counting the majority. As therefore the proportion is not exact or identical, it must be said for accuracy's sake that in a corporation the real or capital majority becomes a «majority of votes» corresponding only in part to the share capital held by the shareholders.