The Resolution of 14 April 2021 of the “Dirección General de Seguridad Jurídica y Fe Pública” analyses the validity of a clause in the articles of association which determined that “The distribution of dividends to shareholders shall not be made in proportion to their participation in the share capital, but all shareholders shall be to receive the same proportion of dividends, independent of their participation in the share capital or their vote rights; so that, once the distribution of dividends has been approved at the shareholders’ meeting, all the shareholders will receive an equal share of the dividends among themselves, thus dividing the total to be distributed by each of the company’s shareholders”.
This resolution understands that “it must be admitted that the statutes stipulate the distribution of dividends by an exclusively “virile” system or by “heads” such as the one stipulated in the present case, which does not infringe the prohibition of a predatory agreement that excludes one or more partners from any part of the profits or losses (cfr. article 1691 of the Civil Code). This is evidenced, for example, by the rule prohibiting the creation of company shares with the right to receive an interest (Article 96.1 of the Capital Companies Act), a prohibition which would be unnecessary if the only form of inequality in the distribution of company profits were that of the privilege in the dividend fixed numerically in accordance with Article 184.2.2.2 of the Companies Register Regulations. It should be considered that in the limited company, in contrast to relations with third parties, where mandatory rules apply in order to safeguard the guarantee that the share capital represents for them, in relations between shareholders, the wide application of the autonomy of the will is permitted so that the articles of association can diverge from the capitalist criterion established by rules, such as the abovementioned Article 275 of the Capital Companies Act”.