Abusive Shareholders' Meeting Resolutions in Marbella

Two offences, one technical boundary: real majority (art. 291 CP) versus fictitious majority (art. 292 CP)

Article 291 CP punishes those who, taking advantage of a majority position legitimately obtained at the Shareholders' Meeting or on the management body, impose abusive resolutions for their own or another's profit and to the detriment of the other shareholders. Article 292 CP punishes, with an identical penalty, the imposition or exploitation of a prejudicial resolution adopted not by a real majority, but a fictitious one: obtained through misuse of a signature given in blank, wrongful attribution of voting rights to someone who does not hold them, unlawful denial of that right to someone who does hold it, or another similar procedure. The distinction is crucial for the legal classification: under article 291 CP the majority is genuine and the reproach falls on the abusive use made of it; under article 292 CP the reproach falls on the manipulation of the very mechanism used to form the majority, which in reality never existed as such.

The core element of art. 291 CP: exclusive intent to profit

Case law has precisely outlined the contours of the conduct punishable under article 291 CP, and in particular the boundary — of enormous practical relevance — between abuse that is sanctionable through civil or commercial proceedings and abuse that carries criminal liability:

"...el artículo 291 parte de la adopción de un acuerdo obtenido lícitamente pero que debe calificarse de abusivo... es atípica la concurrencia del mencionado ánimo como compatible con un resultado beneficioso para los intereses societarios."

This doctrine is decisive in our defence of the majority shareholder or director: if the challenged resolution, even while harming the minority, objectively brings benefits to the company, the conduct is not criminal, regardless of the intention of those who promoted it. The offence therefore requires proof of an intent to profit that is exclusively personal to the majority, incompatible with any outcome favourable to the company's interest — an element whose proof requires a rigorous economic and accounting analysis that we undertake from the very start of the proceedings.

The procedural prerequisite of art. 296 CP: the aggrieved party's prior complaint

The corporate offences under articles 291 to 294 CP — except where they affect general interests or a plurality of persons — may only be prosecuted following a prior complaint from the aggrieved party or their legal representative, pursuant to article 296 CP. This is an objective procedural prerequisite, not a mere formality: without a complaint from the directly harmed shareholder, and in the absence of any collective impact, the Ministerio Fiscal (Spain's Public Prosecution Service) cannot act on its own initiative, and any proceedings brought without it must be dismissed. In every case, whether defending the person under investigation or representing the harmed shareholder, we verify the exact presence of this requirement — including the complainant's specific standing, limited to those who can prove a direct, personal harm — since it is frequently the first and most effective ground for dismissal or, conversely, the essential gateway to activating criminal proceedings.

The double track: commercial challenge of resolutions and criminal complaint

The conduct described in article 291 CP largely coincides with the case of a corporate resolution that may be challenged as abusive under article 204.1, second paragraph, of the Ley de Sociedades de Capital (Spain's Capital Companies Act): a resolution that, without responding to any reasonable need of the company, is adopted by the majority in their own interest and to the unjustified detriment of the other shareholders. This overlap calls for a first-order strategic decision: to pursue the commercial route, faster and focused on the effectiveness of the resolution, or the criminal route, more severe but also more complex and lengthy, or to pursue both in a coordinated manner. The most authoritative legal doctrine holds that, once criminal proceedings are brought, the civil challenge proceedings are stayed due to the precedence of criminal jurisdiction, which is why the decision on the order and timing for activating each route — including the limitation period for the commercial challenge action, notably shorter than the criminal statute of limitations — is decisive and must be made with full awareness of its procedural consequences.