July 15, 2020
July 15, 2020

The resignation of the position of the President of the Board of Directors of a mercantile company, does not originate an acephalia in the company or a paralysis of its operation, since two members of the administrative council remain in force, and in this situation, it is a reiterated doctrine of the DGRN (Resolution of 11-11-1995) that any of the other directors may call the General Meeting to fill the vacant position

This is so due to the extraordinary situation that society lives in the face of the resignation of a director. Because ordinarily, the call to the General Meeting falls on the Board of Directors as a collegiate body, and there is no room for individual action by one of its directors. This is established in article 166 of the LSC when it says that “The General Meeting will be called by the administrators.” This is confirmed by the, the RDGRN dated October 1, 2013, which makes it clear that the competence to convene a Board lies with the Council without admitting a separate action from one of its members. The exception to this rule is in the event that the Board has appointed a CEO, since the function of convening the Meeting is delegable. But it is not the case of the MP4 society.

On the other hand, the resignation of the administrators does not per se cause the cancellation of the powers granted by the Board of Directors (or any other act of management of the company carried out by the Board). This is what the RDGRN says on October 15, 2007. They are two independent figures, the administrators constitute the organic representation of the society and the proxies are the voluntary representation. And the legal acts that name both are independent. If the appointment of the administrators corresponds to the General Meeting, the granting of powers of representation constitutes an act of management and corresponds to the administrative body. Therefore, the resignation of the administrators corresponds to the General Meeting, and the cancellation of powers of representation corresponds to the Board of Directors. As stated in article 161 of the LSC, the General Meeting may “issue instructions to the administrative body or submit to its authorization the adoption by said body of decisions or agreements on certain management matters ..”. Consequently, the Board may urge the Administrative Council to cancel certain powers that it has granted, but in any case it will always be the Council that must execute this decision.

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